                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            OCT 29 1999
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

    GLYNN R. SIMMONS,

                Petitioner-Appellant,

    v.                                                    No. 98-6414
                                                      (D.C. No. 97-CV-649)
    RON WARD,                                             (W.D. Okla.)

                Respondent-Appellee.




                                ORDER AND JUDGMENT         *




Before BALDOCK , BARRETT , and McKAY , Circuit Judges.



         After examining appellant’s brief 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      This order and judgment is not binding precedent, except under the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.
       Glynn R. Simmons, a prisoner of the State of Oklahoma appearing pro se,

appeals from the district court’s denial of his habeas corpus petition, filed

pursuant to 28 U.S.C. § 2254. The district court also denied appellant a

certificate of appealability; appellant has filed a motion for a certificate of

appealability with this court. Our jurisdiction over this appeal arises from

28 U.S.C. § 2253(a). We must initially determine if appellant has “made a

substantial showing of the denial of a constitutional right.”      See 28 U.S.C.

§ 2253(c)(2); Munkus v. Furlong , 170 F.3d 980, 982 (10th Cir. 1999).

       Appellant contends that his underlying conviction for murder is

constitutionally invalid because the prosecutor permitted false identification

testimony and failed to disclose exculpatory evidence contained in two police

reports, as required by   Brady v. Maryland , 373 U.S. 83 (1963). He contends that

these issues should be addressed on the merits despite his failure to raise them on

direct appeal from his conviction because both his trial and appellate counsel

provided ineffective assistance of counsel.         See Coleman v. Thompson , 501 U.S.

722, 750, 752 (1991) (ineffective assistance of counsel may constitute cause

excusing procedural default).

       Appellant also contends that he is factually innocent of the crime for which

he was convicted, and therefore our failure to consider these issues will result in

a fundamental miscarriage of justice.      See id. This argument was not raised to


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the district court, and therefore we will not consider it on appeal.    See Singleton v.

Wulff , 428 U.S. 106, 120 (1976).

       The district court determined that appellant had not demonstrated prejudice

and that neither his trial nor appellate counsel were ineffective.     See Strickland v.

Washington , 466 U.S. 668, 691-92 (1984). Therefore, it also concluded that he

had not shown cause for his failure to raise the     Brady issues on direct appeal and

that those issues were procedurally barred. After careful review of the record on

appeal, we conclude that the district court’s analysis of this case is correct and

that appellant has not made a substantial showing of the denial of a constitutional

right. Therefore, for substantially the reasons set forth in the magistrate judge’s

report and recommendation, adopted by an order of the district court, we deny

appellant’s request for a certificate of appealability. The appeal is DISMISSED.



                                                          Entered for the Court



                                                          Monroe G. McKay
                                                          Circuit Judge




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