F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

United States Court of Appeals

Tenth Circuit

FEB 18 2005

PATRICK FISHER
Clerk

BRIAN TYRONE SCOTT,

Petitioner-Appellant,
v.
ERIC R. FRANKLIN, Warden,

No. 04-7097
(E.D. Okla.)
(D.Ct. No. 03-CV-641-W)

Respondent-Appellee.

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL
Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.
Appellant Brian T. Scott, an Oklahoma state inmate appearing pro se,
appeals the district courts decision denying his habeas corpus petition, filed
pursuant to 28 U.S.C. 2254, challenging his convictions for assault and battery
with a deadly weapon, larceny of an automobile, and assault and battery on a
police officer. We deny Mr. Scotts request for a certificate of appealability and
dismiss his appeal.

Along with other offenses, 1 Mr. Scott was charged with assault and battery
on a police officer, assault and battery with a deadly weapon (knife), and larceny
of an automobile. With respect to the latter two offenses, he was tried and
convicted of the lesser offenses of assault and battery with a dangerous weapon,
and unauthorized use of a motor vehicle. However, his judgment and sentence
incorrectly listed convictions for the initial offenses, rather than the correlating
lesser offenses. On appeal, Mr. Scott successfully sought correction of the
judgment and sentence to reflect the description of the offenses for which he was
convicted, resulting in the Oklahoma Court of Criminal Appeals remanding the
case to the district court and instructing it to vacate the judgment and sentence for
those two convictions and enter an order nunc pro tunc to accurately reflect his
convictions for assault and battery with a dangerous weapon and unauthorized use
of a motor vehicle. Accordingly, the state district court filed an amended
judgment and sentence properly reflecting those two convictions.

Thereafter, Mr. Scott filed a petition for rehearing claiming, in part, that his
appellate counsel erred in referring to the omission of the lesser offenses of
assault and battery with a dangerous weapon and the unauthorized use of a motor
Mr. Scott was also charged and convicted of first degree burglary, forcible
sodomy, and malicious injury to property, which the Oklahoma Court of Criminal
Appeals affirmed on direct appeal. However, it vacated his kidnaping conviction.
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vehicle as merely a scriveners error. Instead, Mr. Scott claimed, for the first
time, that he should not have been convicted of those lesser included offenses
because he was never charged with them, in violation of his Sixth Amendment
rights. He also contended his conviction for assault and battery to a police officer
was improperly based on perjury by the officer. The Oklahoma Court of Criminal
Appeals summarily denied Mr. Scotts petition for rehearing for failure to meet
the requisite criteria for filing a petition for rehearing.

Mr. Scott then filed the instant 28 U.S.C. 2254 federal habeas petition
renewing his claims: 1) he could not be tried for lesser included offenses for
which he was not charged, which his counsel referred to as a scriveners error;
and 2) he improperly received a conviction through perjured testimony by a police
officer. While Mr. Scott did not raise these two grounds for relief in his direct
appeal, nor exhaust them through state post-conviction proceedings, he claimed
he satisfied any exhaustion requirements for state post-conviction remedies when
he raised them in his petition for rehearing. Mr. Scott further claimed he did not
raise the scriveners error issue on the two lesser included offenses in his direct
appeal because his appellate counsel was ineffective in failing to do so.

In denying Mr. Scotts 2254 habeas petition, the federal district court
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determined the Oklahoma Court of Criminal Appeals denied his petition for
rehearing on procedural grounds for failure to meet the requisite criteria for filing
a petition for rehearing, and therefore, pursuant to Castille v. Peoples, 489 U.S.
346, 350-51 (1989), a fair presentation of his issues to a state court did not occur
for the purpose of exhaustion. See also Parkhurst v. Shillinger, 128 F.3d 1366,
1368-69 (10th Cir. 1997). Similarly, relying on Murray v. Carrier, 477 U.S. 478,
489 (1986), the district court concluded Mr. Scotts ineffective assistance of
appellate counsel claim must also be exhausted in the state court before
proceeding under a 2254 motion. See also Parkhurst, 128 F.3d at 1370.
Finally, the district court determined Mr. Scott failed to make the requisite
showing a state post-conviction proceeding would be futile, as required by
Castille, 489 U.S. at 351. Accordingly, the district court denied Mr. Scotts
2254 petition and his request for a certificate of appealability.

On appeal, Mr. Scott raises the same issue contesting his conviction on the
two lesser included offenses. He appears, however, to have abandoned his
perjury claim, as he makes no reference to it or argument in support thereof. In
addition, he renews the same ineffective assistance of appellate counsel claim,
and now, for the first time on appeal, raises an ineffective assistance of trial
counsel claim, stating the same attorney at trial heard the miscitation of the
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charges against him, but failed to apprise the court. Similarly, for the first time
on appeal, he claims the state court denied his constitutional right to jury trial
transcripts at public expense. He further renews his contention he exhausted his
state claims by filing his petition for rehearing, basing his argument on our
decision in Bear v. Boone, 173 F.3d 782 (10th Cir. 1999). He also suggests,
without argument or support, he should receive a certificate of appealability
because any attempt to exhaust his state remedies would be futile.

An appeal may not be taken from a final order in a 2254 proceeding

without a certificate of appealability. 28 U.S.C. 2253(c)(1). In order for a
petitioner to be entitled to a certificate of appealability, he must make a
substantial showing of the denial of a constitutional right. 28 U.S.C.
2253(c)(2). Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district courts
assessment of the constitutional claims debatable or wrong. Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quotation marks, alteration, and citation
omitted). However:
When the district court denies a habeas petition on procedural
grounds without reaching the prisoners underlying constitutional
claim, a [certificate of appealability] should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether
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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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). These are threshold inquiries we
apply to determine whether we may entertain an appeal. Miller-El, 537 U.S. at
336. This court further construes pro se pleadings liberally, applying a less
stringent standard than formal pleadings drafted by lawyers. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).

Applying these principles, we have conducted a thorough review of the

pleadings, the record on appeal, and Mr. Scotts brief and request for a certificate
of appealability, as well as the district courts decision denying relief. For the
purpose of judicial economy, we decline to duplicate the district courts analysis
in its order denying relief on the grounds presented in the habeas petition, other
than to briefly address 1) Mr. Scotts claims he exhausted his state remedies, and
any state post-conviction remedies would otherwise be futile, and 2) the
apparent abandonment of his perjury claim.

First, with respect to the issue of exhaustion, Mr. Scott claims he fully
exhausted his state remedies, pursuant to our decision in Bear v. Boone, when he
filed his petition for rehearing. In that case, the defendant raised the same issues
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on direct appeal to the Oklahoma Court of Criminal Appeals as he later raised in

his petition for rehearing before that court. 173 F.3d at 782-85. In his petition
for rehearing, Mr. Bear challenged the action taken by the Oklahoma Court of
Criminal Appeals in disposing of his direct appeal, rather than challenging the
actions of the trial court. Id. This court determined Mr. Bear sufficiently
exhausted his state remedies without filing a post-conviction petition, given the
futility of his bringing a petition on the same issues which the Oklahoma Court of
Criminal Appeals twice rejected, and which the state district court could not
overrule. Id.

The facts in Bear are distinguishable from the instant case. Mr. Scott never
raised the issues contained in his petition for rehearing in his direct appeal, so the
Oklahoma Court of Criminal Appeals never considered them until it summarily
dismissed the petition for rehearing for failing to meet the requisite criteria for
bringing such a petition. Moreover, unlike the defendant in Bear, the errors Mr.
Scott raised in his petition for rehearing were not directed at any error by the
Oklahoma Court of Criminal Appeals, as required by Oklahoma Court of Criminal
Appeals Rule 3.14. 2 Consequently, our decision in Bear v. Boone does not
Under Rule 3.14(B), a petition for rehearing may only be filed for the following
alleged appellate errors: 1) the Oklahoma Court of Criminal Appeals overlooked some
question decisive of the case and duly submitted by the attorney of record, or 2) the
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remedy Mr. Scotts exhaustion problem. Moreover, because Oklahoma has no

time limit on initial post-conviction habeas proceedings for non-capital offenses,
Mr. Scott has not shown any other obstacle making exhaustion of his state
remedies futile. See Moore v. Gibson, 27 P.3d 483, 484 (Okla. Crim. App. 2001);
see also Okla. Stat. Ann. tit. 22, 1080 (specifying no time limit for filing initial
post-conviction petition).

Next, Mr. Scott clearly waived the perjury issue contained in his 2254
petition when, on appeal, he failed to make any argument or cite any authority to
support that claim. See United States v. Hardwell, 80 F.3d 1471, 1492 (10th Cir.
1996). As a result, nothing in Mr. Scotts brief or request for a certificate of
appealability dissuades us from our determination the district court correctly
assessed the claims presented in his 2254 petition and denied Mr. Scotts
petition.

The additional errors Mr. Scott raises for the first time on appeal must also
be dismissed. We generally will not exercise jurisdiction on issues not raised or
decision is in conflict with an express statute or controlling decision to which the
attention of the Oklahoma Court of Criminal Appeals was not called, either in the brief or
in oral argument. In this case, it is clear the Oklahoma Court of Criminal Appeals
summarily denied Mr. Scotts petition for rehearing because the errors he raised therein
had nothing to do with appellate court error.
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addressed below, see Walker v. Mather (in re Walker), 959 F.2d 894, 896 (10th
Cir. 1992), nor will we consider conclusory or unsupported claims, see Hall v.
Bellmon, 935 F.2d 1106, 1113-14 (10th Cir. 1991). Moreover, Mr. Scott has not
shown he exhausted his remedies on any of these new issues in state court before
filing for habeas corpus relief in federal court, and therefore, we consider them
procedurally defaulted under 28 U.S.C. 2254(b)(1)(A), and will not consider
them on appeal.

Thus, for substantially the same reasons set forth in the district courts
September 10, 2004 Order, and those articulated here, we conclude Mr. Scott fails
to make a substantial showing of the denial of a constitutional right as required by
28 U.S.C. 2253(c). Accordingly, we DENY Mr. Scotts request for a certificate
of appealability and DISMISS his appeal.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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