F IL E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    U N IT E D ST A T E S C O U R T O F A PP E A L SOctober 22, 2008
                                                                 Elisabeth A. Shumaker
                                 T E N T H C IR C U IT               Clerk of Court



 RO BERT M ARK STEPH EN S ,

              Petitioner - A ppellant ,

 v.                                                      No. 08-5034
                                                         (N.D. Okla.)
 DAVID M ILLER , W arden,                     (D.C. No. 04-CV-00900-HDC-SAJ )

              Respondent - Appellee .



          O R D E R D EN Y IN G C E R T IFIC A TE O F A PPE A L A B IL IT Y ,
                           A N D D ISM ISSIN G A PPE A L


Before O ’B R IE N , M cK A Y , and G O R SU C H , Circuit Judges.




      Robert M ark Stephens, a state inmate appearing pro se and in forma

pauperis (ifp), 1 seeks a certificate of appealability (COA) to appeal from the

district court’s denial of his habeas corpus petition filed pursuant to 28 U.S.C.

§ 2254. 2 Because he has not “made a substantial showing of the denial of a



      1
       W e liberally construe Stephens’ pro se pleadings. See Green v. Dorrell,

, 917 (10th Cir. 1992).
      2
         Because Stephens did not expressly request a COA, we deem his notice of
appeal a request for a COA. See Fed. R. App. P. 22(b)(2). W e directed the
parties to file briefs addressing whether Stephens’ notice of appeal was timely as
it was file-stamped one day after the appeal deadline. After briefing, we are
satisfied the notice of appeal was timely under the prison mailbox rule. See Price
constitutional right,” 28 U.S.C. § 2253 (c)(2), w e deny a COA.

                                  I. Background

      Stephens, wearing a hat with hair sewn into it, approached Vernon Coleman

in a parking lot with a loaded firearm as Coleman was retrieving items from his

vehicle. After taking Coleman's keys and wallet, Stephens ordered Coleman to

open the vehicle’s trunk and get inside. Coleman opened the trunk and ran.

Stephens got into Coleman’s vehicle and drove approximately one block down the

road to a gas station. Coleman’s neighbors called the police. Using a

surveillance helicopter, the police located Stephens in Coleman’s vehicle at the

gas station. Two officers apprehended Stephens, finding Coleman’s wallet and a

loaded .38 caliber revolver in his pockets. They also recovered a hat with fake

hair sewn into it (which one of the officers saw Stephens remove from his head

and throw to the ground) near Coleman’s vehicle.

      Stephens was charged in Oklahoma state court with first degree robbery

(Count I) and attempted kidnapping (Count II). The jury found Stephens guilty of

both counts and recommended punishment of 15 years imprisonment on Count I




v. Philpot, 

, 1163-64 (10th Cir. 2005) (under the prison mailbox
rule, “a pro se prisoner’s notice of appeal will be considered timely if given to
prison officials for mailing prior to the filing deadline, regardless of when the
court itself receives the documents”); see also Fed. R. App. P. 4(c)(1)
(incorporating the prison mailbox rule for an inmate’s “notice of appeal in either
a civil or a criminal case”).

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and 1 year imprisonment on Count II. The court imposed the sentences

recommended by the jury, directing they run consecutively. Stephens’ subsequent

pro se motion for new trial was denied.

      O n direct appeal, the O klahoma Court of Criminal Appeals (OCCA)

modified Stephens’ sentences to run concurrently but otherw ise denied relief.

Stephens filed a petition and amended petition for post-conviction relief; both

were denied. The OCCA denied his subsequent appeal.

      Stephens filed a § 2254 petition with the district court claiming: (1) the

denial of due process based on his absence from a hearing at which the court

determined he had regained competency; (2) ineffective assistance of trial counsel

and (3) ineffective assistance of appellate counsel based upon counsel’s failure to

raise on direct appeal the denial of due process and the ineffectiveness of trial

counsel claims. The State responded, arguing Stephens’ claims were either (1)

not entitled to habeas review because they were determined by the state court to

be procedurally barred on independent and adequate state grounds or (2) without

merit because the state court’s adjudication of them w as neither contrary to nor an

unreasonable application of clearly established federal law. In a detailed

thirty-page order, the district court agreed w ith the State and denied Stephens’

petition. It subsequently denied Stephens’ request for a COA but granted him

leave to proceed ifp on appeal.



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                                   II. D iscussion

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. M iller-El v. Cockrell, 

, 336 (2003). W e will issue

a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an

applicant must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. M cDaniel, 

, 484 (2000) (quotations

omitted). “W hen the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” 

a plain procedural bar is

present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” 

have thoroughly reviewed the entire record, including the three volumes



                                          -4-
of trial transcripts, Stephens’ numerous state court pleadings, the state trial

courts’ decisions and the district court’s painstaking analysis of each of Stephens’

claims. W e have also reviewed Stephens’ opening and supplemental briefs. W e

agree with the district court that Stephens is not entitled to habeas relief as his

claims are either procedurally barred or he failed to show the O CCA’s

adjudication of them “w as contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States” or “resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d). Two claims, however, w arrant further discussion.

First, Stephens contends he is actually innocent. To support this claim, he refers

to the statement of an eyewitness taken by the police on the day of the incident.

W hile “a colorable claim of factual innocence” excuses a petitioner’s procedural

default allowing consideration of his defaulted claims, the statement fails to carry

the day. See Demarest v. Price, 

, 941-42 (10th Cir. 1997) (citations

and quotations omitted). Factual innocence means

      it is more likely than not that no reasonable juror would have found
      petitioner guilty beyond a reasonable doubt. Factual innocence
      requires a stronger show ing than that necessary to establish
      prejudice. The habeas court must make its determination concerning
      the petitioner’s innocence in light of all the evidence, including that
      alleged to have been illegally admitted (but with due regard to any
      unreliability of it) and evidence tenably claimed to have been
      wrongly excluded or to have become available only after the trial.

                                           -5-


(citations and quotations omitted). In his statement, the eyewitness

alleges he heard Coleman yell “[h]e’s stealing my car,” saw Stephens start to

drive off in Coleman’s vehicle and then ran after the vehicle. (R. Appellant’s

App. of Exhibits at Ex. 4.) The witness stated he observed Stephens leave

Colem an’s vehicle in the parking lot and flee in another vehicle. Contrary to

Stephens’ claim, this statement is not exculpatory. It merely contradicts

testimony by state w itnesses that Stephens fled the parking lot in Coleman’s

vehicle and was later apprehended at a gas station. It does not, as Stephens

alleged in the district court, show he did not take Coleman’s vehicle at gun point.

      Second, Stephens claims he proceeded to trial without his competency

medications. Initially, Stephens was declared incompetent and sent to Eastern

State Hospital. W hile there, Stephens w as prescribed several medications. Six

months after his admittance, a hospital doctor reported to the court that Stephens

had regained competence. In the hospital discharge report, the doctor stated

Stephens w as to continue taking his prescribed medications. The record reveals

that once returned to jail, the jail ceased providing Stephens several of his

medications. Contrary to Stephens’ claim, he continued to receive his

antipsychotic medication. 3 Stephens’ claim that he proceeded to trial w ithout his



      3
     At the hospital, Stephens w as prescribed Zyprexa, Celebrex, Flexeril,
Topamax, Colace and Anusol Suppositories; the jail prescribed Zyprexa, Colace,

                                          -6-
competency medication is not supported by the record.

      W e D E N Y a C O A and D ISM ISS this nascent appeal.




                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




M etam ucil and M otrin. U nder R ule 201 of the Federal Rules of Evidence, we
take judicial notice that Zyprexa helps manage symptoms of schizophrenia, the
manic phase of bipolar disorder and other psychotic disorders; Celebrex treats
acute pain and arthritis; Flexeril is a muscle relaxant prescribed to relieve muscle
spasms; Topamax is an anti-epileptic drug also used to treat migraines; Anusol
treats hemorrhoids; Colace and M etamucil treat constipation; and M otrin treats
fever and pain including pain caused by arthritis and migraines. See
http://w ww.pdrhealth.com/home/home.aspx.

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