                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 5 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JAMES NATHAN TYSON,

                Petitioner - Appellant,
                                                         No. 02-5031
    v.                                              D.C. No. 99-CV-890-K
                                                      (N.D. Oklahoma.)
    DAYTON POPPEL,

                Respondent - Appellee.


                            ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and LUCERO, 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.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioner James Nathan Tyson seeks a certificate of appealability (COA)

from this court in order to appeal the district court’s order denying relief in his

motion filed pursuant to 28 U.S.C. § 2254. We deny Mr. Tyson’s application and

dismiss the appeal.

      Mr. Tyson filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA). Therefore, review of

his claims is governed by its provisions. See Wallace v. Ward, 191 F.3d 1235,

1240 (10th Cir. 1999).

      Under AEDPA, Mr. Tyson must obtain a COA before he can proceed

on appeal. 28 U.S.C. § 2253(c)(1). To be entitled to a COA, he must make

a “substantial showing of the denial of a constitutional right.” § 2253(c)(2).

He can make this showing by establishing that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotation omitted).

      In 1997, Mr. Tyson was convicted by a jury of first-degree manslaughter

and sentenced to thirty-five years’ imprisonment. The Oklahoma Court of

Criminal Appeals affirmed his conviction on appeal. Mr. Tyson filed a

post-conviction petition in state court which was denied.


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      He then filed this petition in federal district court in which he alleged he

was denied effective trial and appellate counsel because counsel did not advise

him of, and preserve, his right to a bifurcated trial. He also alleged counsel was

ineffective due to a conflict of interest because he was originally represented by

an attorney who was then appointed to the district attorney’s office. Petitioner

also alleged the presiding trial judge was biased because the judge had helped the

former public defender get his new position after the judge was appointed to the

bench.

      The district court denied relief on his first claim, holding that he could not

meet the prejudice prong of Strickland v. Washington , 466 U.S. 668 (1984) . The

court noted that because Mr. Tyson had not raised his conflict of interest claims

in state court, they were procedurally barred. The court also held that Mr. Tyson

had failed to show cause and actual prejudice for the failure or a fundamental

miscarriage of justice should the court not consider those claims. The court also

noted that Mr. Tyson was not claiming actual innocence.

      On appeal, Mr. Tyson argues that the district court should have held an

evidentiary hearing on his claims. He also asserts that the court erred in holding

that the state courts’ determinations were not contrary to, or an unreasonable

application of, federal law.




                                         -3-
      We have reviewed the record and the applicable law and conclude that

Mr. Tyson has failed to make a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not

debate whether his § 2254 “petition should have been resolved in a different

manner” or whether “the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (quotation omitted).

Therefore, we deny a COA and DISMISS this appeal. The mandate shall issue

forthwith.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




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