                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          July 21, 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 BOBBY ANDREA LIVINGSTON,

       Petitioner - Appellant,
                                                        No. 05-6048
 vs.                                              (D.C. No. 01-CV-1736-C)
                                                        (W.D. Okla.)
 RON WARD, Director;
 DEPARTMENT OF CORRECTIONS;
 STATE OF OKLAHOMA,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


       Petitioner-Appellant Bobby Andrea Livingston, an Oklahoma inmate

appearing pro se, seeks a certificate of appealability (“COA”) permitting him to

appeal the district court’s order denying his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Because we determine that Mr. Livingston has not

made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and

dismiss this appeal. We further deny Mr. Livingston’s motion to proceed in

forma pauperis.
      The parties are familiar with the facts and procedural history in this case,

and we need not repeat them here. In his application for COA, Mr. Livingston

reiterates his argument before the district court alleging that the state withheld

impeachment evidence at trial in violation of Brady v. Maryland, 373 U.S. 83

(1963). For this court to grant a COA, Mr. Livingston must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003). When, as in this case, the district court

has denied a claim on the merits, the petitioner must demonstrate “‘that

reasonable jurists could debate whether (or, for that matter, agree that) the

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

presented were adequate to deserve encouragement to proceed further.’” Miller-

El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).

      Having carefully reviewed the record, we deny a COA for substantially the

same reasons contained in the magistrate judge’s Report and Recommendation

and the district court’s Amended Order. Under his Brady claim, the only issue

raised herein, Mr. Livingston must show (1) that the government suppressed

evidence, (2) that such evidence was favorable to the defendant, and (3) that the

evidence was material, i.e., there is a reasonable probability had the evidence

been disclosed that the result of the trial would have been different. See Brady,

373 U.S. at 87; Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002). We


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find that the district court’s conclusion that Mr. Livingston cannot demonstrate

that the allegedly suppressed evidence was material in light of the nature of the

impeachment material and the strength of the state’s case is not debatable.

      Accordingly, we DENY COA and DISMISS this appeal. Furthermore,

because Mr. Livingston has not shown “a reasoned, non frivolous argument on the

law and facts” in support of his argument, DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991), we likewise DENY the motion to proceed in forma

pauperis. Mr. Livingston is reminded that he is obligated to make partial

payments to this court until the entire appellate filing fee is paid in accordance

with 28 U.S.C. § 1915(b).

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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