                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             NOV 30 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 WILLIE LEE NICKLEBERRY, JR.,

          Petitioner-Appellant,
                                                           No. 00-6226
 v.                                                        (W.D. Okla.)
                                                    (D.Ct. No. 99-CV-468-M)
 GLYNN BOOHER,

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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 case is

therefore ordered submitted without oral argument.



      Appellant, Willie Lee Nickleberry, Jr., a state inmate appearing pro se,


      *
          This order and judgment is not binding precedent except under the doctrines of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.
appeals the district court’s decision denying his habeas petition filed pursuant to

28 U.S.C. § 2254. We deny Mr. Nickleberry’s request for a certificate of

appealability and to proceed in forma pauperis, and dismiss his appeal.



      In his federal habeas petition, Mr. Nickleberry challenged his Oklahoma

convictions of one count of larceny of merchandise from a retailer after two or

more felonies, and one count of assault and battery. As grounds supporting his

petition, Mr. Nickleberry contended the state trial court violated his constitutional

rights by: 1) restricting cross-examination of a witness, for impeachment

purposes, concerning the value of the stolen item, and 2) failing to properly

respond to a jury question without notifying defense counsel. The district court

referred the matter to a magistrate judge who issued a carefully written and

thorough Report and Recommendation, discussing the surrounding circumstances

and merits of Mr. Nickleberry’s claims and recommending his petition be denied.

In so doing, the magistrate judge determined Mr. Nickleberry failed to

demonstrate the Oklahoma court’s resolution of these claims was contrary to, or

an unreasonable application of, clearly established federal law, or involved an

unreasonable factual determination.



      Mr. Nickleberry filed an objection to the Report and Recommendation, and


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for the first time claimed the trial court erred in enhancing his sentence based on

his prior convictions. After considering Mr. Nickleberry’s objections, the district

court adopted the magistrate judge’s Report and Recommendation, but directed

the magistrate judge to consider Mr. Nickleberry’s newly raised sentence

enhancement claim. At the district court’s direction, the magistrate judge issued a

cogent Supplemental Report and Recommendation, explaining Mr. Nickleberry

failed to exhaust his sentence enhancement claim in the state courts. The

magistrate judge nevertheless decided to address Mr. Nickleberry’s sentence

enhancement claim on the merits. In rejecting his claim, the magistrate judge

concluded: (1) application of Oklahoma’s habitual criminal enhancement statute

to Mr. Nickleberry’s sentence raised a matter of state law, and (2) Mr.

Nickleberry failed to show the sentence imposed was outside the possible range of

punishment provided by statute. The magistrate judge then recommended Mr.

Nickleberry’s habeas petition be denied in its entirety. Accordingly, the district

court adopted the Supplemental Report and Recommendation and denied Mr.

Nickleberry’s habeas petition.



      On appeal, Mr. Nickleberry raises the same claims addressed by the

magistrate judge and district court. He also claims his petition raises issues

debatable among jurists because two state appellate court judges dissented with


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the majority in ruling on his direct appeal.



      When reviewing the denial of a § 2254 petition, we review the district court

factual findings for clear error and its legal rulings de novo. See Rogers v.

Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999), cert. denied, 120 S. Ct. 944

(2000). Applying this standard and after a careful review of the record, we agree

with the thorough and well-reasoned assessment of Mr. Nickleberry’s claims in

the magistrate judge’s February 29, 2000 Report and Recommendation, and May

31, 2000 Supplemental Report and Recommendation. For that reason, we decline

to duplicate the same analysis.



      In addition, we reject Mr. Nickleberry’s claim his petition raises issues

debatable among jurists because two state appellate court judges dissented from

the majority, which affirmed Mr. Nickleberry’s convictions on direct appeal. In

this case, the issue is not whether the state’s appellate justices actually disagreed

on the underlying merits of Mr. Nickleberry’s direct appeal, but whether

reasonable jurists would debate whether the state court’s adjudication

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or (2) resulted
      in a decision that was based on an unreasonable determination of the
      facts in light of the evidence presented in the State court proceeding.


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See Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir. 2000) (quoting 28

U.S.C. § 2254(d) (Supp. III 1997)). Applying this criteria, we conclude Mr.

Nickleberry fails to “demonstrate that jurists of reason would find the district

court’s assessment of the constitutional issues debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, ___, 120 S. Ct. 1595, 1604 (2000). In other words, Mr.

Nickleberry fails “to demonstrate that reasonable jurists could debate whether ...

the petition should have been resolved in a different matter or that the issues

presented were adequate to deserve encouragement to proceed further.” Tillman

v. Cook, 215 F.3d 1116, 1133 (10th Cir.) (quotation marks and alterations

omitted) (rejecting similar contention by petitioner in which individual state court

justices dissented in different proceedings on different issues, but the majority

nevertheless affirmed petitioner’s conviction and sentence), petition for cert.

filed, (U.S. Sept. 13, 2000) (No. 00-6580). Thus, we conclude Mr. Nickleberry

fails to make the substantial showing of the denial of a constitutional right

required for a certificate of appealability. See 28 U.S.C. § 2253(c)(2).



      Based on this reasoning, and for substantially the same reasons set forth in

the district court’s April 20, 2000 and June 19, 2000 Orders, and the magistrate

judge’s February 29, 2000 Report and Recommendation, and May 31, 2000

Supplemental Report and Recommendation, we deny Mr. Nickleberry’s motion


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for a certificate of appealability, deny his motion to proceed in forma pauperis,

and DISMISS his appeal.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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