Richard L. Grimmett, Petitioner-appellant, v. Stephan Kaiser, Warden, Attorney General of the State Ofoklahoma Respondents-appellees, 961 F.2d 219 (10th Cir. 1992)

Petitioner-appellant Richard Grimmett filed a 28 U.S.C. § 2254 petition seeking relief from his Oklahoma conviction. He had previously sought state collateral relief on the same constitutional arguments. See Okla.Stat.Ann. tit. 22, § 1080 (West 1986 & 1991 Cum.Sup.). The state court denied relief because petitioner had failed to take a direct appeal. See Grimmett v. Oklahoma, No. PC 91-0289, unpub. order (Okla.Cr.App. June 17, 1991) (citing Okla.Stat.Ann. tit. 22, § 1080; Webb v. State, 661 P.2d 904 (Okla.Cr.App.1983). Petitioner appeals from the federal district court's judgment dismissing the petition based on procedural bar.

The Oklahoma Criminal Court of Appeals rejected petitioner's claims solely because he had not articulated sufficient reason for failing to file a direct appeal or requesting an appeal out of time. The court noted that resolving his issues under these circumstances would erode the limitation associated with state post-conviction relief and undermine the purpose of a direct appeal. Grimmett, No. PC 91-0289, unpub. order at 2. This represents an independent and adequate state procedural ground, see Gilbert v. Scott, 941 F.2d 1065, 1067-68 (10th Cir. 1991), and petitioner has failed to "demonstrate cause for the default and actual prejudice as a result of the alleged violation [s] of federal law...." Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991). Nor has he "demonstrate [d] that failure to consider the claims will result in a fundamental miscarriage of justice." Id. See also McClesky v. Zant, 111 S. Ct. 1454, 1470 (1991). Therefore, the district court correctly held that his claims are now procedurally barred.

In the absence of "a rational argument on the law or the facts," petitioner's request to proceed in forma pauperis is DENIED. See Coppedge v. United States, 369 U.S. 438, 448 (1962); 28 U.S.C. § 1915(d). Petitioner has failed to make a substantial showing of the denial of a federal right, see Lozada v. Deeds, 111 S. Ct. 860, 861-62 (1991); thus, petitioner's request for a certificate of probable cause, 28 U.S.C. § 2253, is DENIED, and the appeal is DISMISSED.

SO ORDERED.