FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 9, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JULIUS JEROME WALKER,

      Petitioner - Appellant,

v.                                                          No. 15-7060
                                               (D.C. No. 6:12-CV-00303-RAW-KEW)
ROBERT PATTON, DOC Director,                                (E.D. Okla.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
                  _________________________________

      Julius Jerome Walker appeals from the district court’s denial of his 28 U.S.C.

§ 2254 motion. We granted him a certificate of appealability (“COA”) to consider

whether his convictions violated the Double Jeopardy Clause of the United States

Constitution and whether his trial counsel was ineffective for failing to raise the

double jeopardy argument in proceedings where Mr. Walker tried to withdraw his

guilty plea. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                            I.

       Mr. Walker entered a blind plea of guilty to numerous violations of Oklahoma

state law in connection with an attack on his domestic partner. He was sentenced to

life imprisonment on each count, with the sentences to run concurrently. He then

filed a motion to withdraw his guilty plea. Following a hearing, the trial court denied

the motion to withdraw. Mr. Walker appealed to the Oklahoma Court of Criminal

Appeals (“OCCA”).

       The OCCA agreed with Mr. Walker’s argument that he was subjected to

double punishment on one of the counts in violation of Okla. Stat. tit. 21, § 11. It

therefore reversed the conviction on that count and remanded with instructions to

dismiss. As to counsel’s failure to raise the double punishment issue in the trial

court, the OCCA concluded that any error was remedied when it ordered that the

conviction be dismissed.

       Next, Mr. Walker filed a motion for post-conviction relief in the trial court in

which he raised several claims of ineffective assistance of counsel concerning issues

other than the failure to make the double punishment argument. Following the trial

court’s denial of the motion, Mr. Walker filed an appeal with the OCCA, which also

denied relief.

       In a pro se habeas petition filed in the district court, Mr. Walker reasserted,

among other things, his § 11 double punishment claim and counsel’s failure to raise

the issue in the trial court. The magistrate judge recommended that habeas relief be

denied because his “ground for habeas relief is based on an issue of state law[.]”

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R., Vol. 1 at 440. The district court overruled Mr. Walker’s objections and denied

relief. We now affirm.

                                           II.

      “A state prisoner generally must exhaust available state-court remedies before

a federal court can consider a habeas corpus petition. . . . A claim has been exhausted

when it has been ‘fairly presented’ to the state court.” Bland v. Sirmons, 

, 1011 (10th Cir. 2006) (citations omitted). “Fair presentation means that the

petitioner has raised the substance of the federal claim in state court.” 

marks omitted). This means that a prisoner should “include reference to a

specific federal constitutional guarantee, as well as a statement of the facts that

entitle [him] to relief.” Gray v. Netherland, 

, 162-63 (1996).

      We have carefully examined Mr. Walker’s arguments in the OCCA and find

that they were limited to whether he received multiple punishments for the same

crime in violation of the Oklahoma statute—not the Double Jeopardy Clause of the

United States Constitution. He therefore failed to exhaust his remedies.

      Mr. Walker appears to concede that he did not raise a double jeopardy claim in

his motion for post-conviction relief, or subsequent appeal. He argues, however, that

double jeopardy was raised in his appeal to the OCCA from the denial of his motion

to withdraw his guilty plea. But this is contrary to how the issue was framed and

argued—which was under the Oklahoma Constitution and case law. See R., Vol. 1 at

168-77. Indeed, Mr. Walker never mentioned the United States Constitution or cited



                                            3
any cases interpreting the Double Jeopardy Clause. And the OCCA understood the

argument to be grounded in the Oklahoma statute. 

                                             III.

      “Generally, a federal court should dismiss unexhausted claims without

prejudice so that the petitioner can pursue available state-court remedies. . . .

However, if the court to which [p]etitioner must present his claims in order to meet

the exhaustion requirement would now find those claims procedurally barred, there is

a procedural default for the purposes of federal habeas review.” 

(citation and internal quotation marks omitted).

      The state of Oklahoma would deem Mr. Walker’s double jeopardy claim

procedurally barred. Oklahoma’s Uniform Post-Conviction Procedure Act requires

that “[a]ll grounds for relief available to an applicant under this act must be raised in

his original, supplemental or amended application [for post-conviction relief]. Any

ground finally adjudicated or not so raised . . . may not be the basis for a subsequent

application.” Okla. Stat. tit. 22, § 1086.

      “A petitioner may overcome the procedural bar only if he can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” 

(internal quotation

marks omitted). Mr. Walker has not argued cause or prejudice to excuse the default.

Nor has he argued a fundamental miscarriage of justice. Accordingly, Mr. Walker



                                              4
failed to exhaust his double jeopardy claim, and he is procedurally barred from

raising that claim in this court.

       We affirm the district court’s order denying Mr. Walker’s § 2254 motion. We

deny Mr. Walker’s motion to supplement his brief as moot.


                                          Entered for the Court


                                          Jerome A. Holmes
                                          Circuit Judge




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