                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 23 1999
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


CHARLES LEON CHEATHAM,

             Petitioner-Appellant,
                                                       No. 99-6254
v.                                               (W. Dist. of Oklahoma)
                                                (D.C. No. CIV-97-1464-R)
RON WARD,

             Respondent-Appellee.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.


      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)(2); 10th Cir. R. 34.1(G). The court

therefore honors the petitioner’s request and orders the case 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       This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before the court on petitioner Charles Leon Cheatham’s request

for a certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c). 2

Cheatham seeks a COA so that he can appeal the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from the denial of a § 2254 petition unless

the petitioner first obtains a COA). Cheatham is entitled to a COA only if he can

make a substantial showing of the denial of a constitutional right. See id. §

2253(c)(2). Cheatham can make such a showing by demonstrating that the issues

he raises are deserving of further proceedings, reasonably debatable among jurists

of reason, or subject to a different resolution on appeal. Barefoot v. Estelle, 463

U.S. 880, 893 (1983).

      In a thorough and extensive Report and Recommendation, a magistrate

judge recommended that Cheatham’s petition be denied on the merits. In an

equally thorough and well-reasoned Memorandum Opinion and Order, the district

court accepted the magistrate’s recommendations and dismissed Cheatham’s

petition. The court has undertaken a close review of Cheatham’s request for a



      2
        It is clear, for those reasons set forth in both Cheatham’s and the
respondent Ron Ward’s response to this court’s show cause order, that
Cheatham’s notice of appeal was timely filed under the prison mail-box rule set
forth in Houston v. Lack , 487 U.S. 266, 270 (1988) (holding that a    pro se
prisoner’s notice of appeal is filed on the date it is deposited in the prison mail
system to be mailed to the court).

                                         -2-
COA and appellate brief, the magistrate judge’s Report and Recommendation, the

district court’s Memorandum Opinion and Order, and the entire record on appeal.

That close review demonstrate’s that the district court’s resolution of Cheatham’s

claims is neither subject to a different resolution on appeal nor deserving of

further proceedings. Accordingly, this court DENIES Cheatham’s request for a

COA for substantially those reasons set out in the magistrate judge’s Report and

Recommendation dated July 31, 1998 and the district court’s Memorandum

Opinion and Order dated December 23, 1998, and DISMISSES the appeal. 3

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




      3
       Because Cheatham ultimately paid the appellate filing fee in this case, his
motion styled “Law Librarian Misconduct,” construed by this court as a request
for an extension of time to file a certified copy of his prison trust fund account, is
denied as moot.

                                          -3-
