                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 17 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JIMMIE ODELL BRUNER,

                Petitioner-Appellant,

    v.                                                    No. 97-7071
                                                    (D.C. No. 95-CV-293-S)
    RON CHAMPION; ATTORNEY                                (E. D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                            ORDER AND JUDGMENT *



Before KELLY, BARRETT, and HENRY, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Jimmie Odell Bruner appeals the district court’s decision to

dismiss his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district

court neither issued nor denied petitioner’s request for a certificate of

appealability. Pursuant to Federal Rule of Appellate Procedure 22(b) and Tenth

Circuit protocol, we assume that the district court denied petitioner a certificate of

appealability. Petitioner requests this court issue a certificate of appealability and

reverse the district court’s dismissal of his § 2254 petition.

      After a mistrial, petitioner was retried and convicted of first degree rape,

first degree burglary, and robbery by force and fear. Petitioner’s conviction and

sentence were affirmed on appeal to the Oklahoma Court of Criminal Appeals.

Petitioner filed his § 2254 petition for a writ of habeas corpus in the United States

District Court for the Eastern District of Oklahoma. The district court adopted

the findings and recommendation of the magistrate judge and dismissed the

petition.

      In order to obtain a certificate of appealability, petitioner must make

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

§ 2253(c)(2). Based upon our review of the record as a whole, we conclude

that petitioner has failed to make the requisite showing.




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      Petitioner’s “Motion for Order Requiring Answer Brief” is DENIED.

We DENY petitioner’s request for a certificate of appealability and DISMISS

his appeal. The mandate shall issue forthwith.



                                                 Entered for the Court



                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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