Tyrone L. Farris, Plaintiff-appellant, v. Stephen Kaiser, Attorney General of the State of Oklahoma,defendants-appellees, 9 F.3d 116 (10th Cir. 1993)

Before TACHA, BALDOCK and KELLY, JJ.

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Tyrone L. Farris appeals from an order of the district court denying his petition for a writ of habeas corpus, denying his motion for an evidentiary hearing, and denying his motions for appointment of counsel. We affirm.

Mr. Farris was convicted in Oklahoma state court for first degree rape and was sentenced to ninety-nine years imprisonment. After the Oklahoma Court of Criminal Appeals affirmed his conviction on direct appeal, he filed a request for post-conviction relief and the request was denied. Pursuant to 28 U.S.C. 2254, Mr. Farris then filed a petition for a writ of habeas corpus in federal district court. The matter was referred to a magistrate judge, and after de novo review, the district court adopted the magistrate's report and recommendations. The district court determined that federal habeas relief was unavailable to Mr. Farris because he failed to show "cause and prejudice" on five of his seven claims. The other two claims, concluded the district court, were without merit. Accordingly, the district court denied Mr. Farris's petition for a writ of habeas corpus, denied his request for an evidentiary hearing and denied his motions for appointment of counsel. This pro se appeal followed.

Mr. Farris contends on appeal that the district court erred in denying his petition for a writ of habeas corpus and in denying his various motions. We disagree. In Coleman v. Thompson, 501 U.S. ----, ----, 111 S. Ct. 2546, 2565 (1991), the Supreme Court held that federal habeas review is precluded when an issue has been defaulted in state court on an independent and adequate state procedural ground, unless cause and prejudice is shown. In this case, five of the claims in Mr. Farris's petition are either now procedurally barred from further state review or were not exhausted in the state court proceedings. With respect to these five claims, we agree with the district court that Mr. Farris has failed to satisfy the "cause and prejudice" standard required for federal habeas review. With respect to the other two claims in his petition, we agree with the district court that Mr. Farris has failed to show that he was denied a fundamentally fair trial because of the alleged errors in the state court proceedings. We therefore conclude that Mr. Farris has failed to state grounds for federal habeas corpus relief, and we AFFIRM the order of the district court for substantially the reasons given in the district court's order and in the report and recommendation of the magistrate judge. We grant Mr. Farris's motion for leave to proceed in forma pauperis and AFFIRM the denial of the remaining motions. The mandate shall issue forthwith.

ENTERED FOR THE COURT