                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 6 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JACK McCARTER,

                Petitioner-Appellant,

    v.                                                    No. 99-5240
                                                    (D.C. No. 97-CV-806-C)
    RONALD J. CHAMPION,                                   (N.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY, PORFILIO,           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.

         Defendant was convicted in an Oklahoma state court of first degree murder

for the death of his two-year-old son, and he was sentenced to life imprisonment


*
      This order and judgment is not binding precedent, except under the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.
without the possibility of parole. After his conviction was affirmed on appeal,

defendant filed a petition for writ of habeas corpus in federal district court,

pursuant to 28 U.S.C. § 2254. The district court denied the petition and also

denied the motion for a certificate of appealability. Consequently, this appeal

will not be allowed unless we issue a certificate of appealability.        See 28 U.S.C.

§ 2253(c)(1). We will issue the certificate only if defendant “has made a

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

       In the habeas petition, defendant claimed denial of his constitutional rights

resulting from the following asserted errors: (1) the trial court allowed irrelevant

and prejudicial testimony of alleged other crimes; (2) defendant’s wife’s

testimony that she feared defendant rendered his trial unfair; (3) the evidence was

insufficient to support the conviction (4) the trial court did not grant a mistrial

after an “evidentiary harpoon;” (5) the prosecutor made improper remarks in the

closing statement; (6) the sentence was excessive; and (7) the jury was not

properly instructed as to the elements of the offense. Defendant asserts these

same arguments on appeal, but he also adds an argument: that he did not receive

effective assistance of trial and appellate counsel. Because defendant did not

raise the ineffective assistance of counsel arguments in his habeas petition before

the district court, we will not consider them on appeal.        See Lighton v. University

of Utah , 209 F.3d 1213, 1224 (10th Cir. 2000).


                                             -2-
       For substantially the reasons stated by the district court in its order denying

habeas relief,   1
                     we hold that defendant has not made a substantial showing of the

denial of a constitutional right. Consequently, we deny the application for a

certificate of appealability and DISMISS the appeal. The mandate shall issue

forthwith.



                                                        Entered for the Court



                                                        Michael R. Murphy
                                                        Circuit Judge




1
       In a habeas matter, a petitioner is entitled to relief only if he can establish
that the state court’s decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.”   28 U.S.C. § 2254(d)(1). Because the Oklahoma
Court of Criminal Appeal’s application of the harmless error standard articulated
in Chapman v. California , 386 U.S. 18, 23-24 (1967), was neither contrary to, nor
an unreasonable application of, Supreme Court precedent, the district court should
not have conducted its own harmless error analysis under the standard set forth in
Kotteakos v. United States , 328 U.S. 750, 776 (1946). The result is the same,
however, under either analysis: the error was harmless.

                                             -3-
