                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               DEC 7 2000
                                      TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 KENNETH R. WASHINGTON,

           Petitioner-Appellant,
 v.                                                          No. 00-6190
 JAMES L. SAFFLE, Director, Oklahoma                  (D.C. No. 00-CV-233-C)
 Department of Corrections,                                 (W.D. Okla.)

           Respondent-Appellee,

 and

 STATE OF OKLAHOMA,

           Respondent.


                                   ORDER AND JUDGMENT*


Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**


       A jury convicted Petitioner Kenneth Washington in Oklahoma state court for

“Forcible Oral Sodomy After Former Conviction of Two or More Felonies.” Petitioner

       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         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)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
received a sentence of twenty years imprisonment. On direct appeal to the Oklahoma

Court of Criminal Appeals, Petitioner argued that a variance between a second amended

information and the evidence at trial violated his Sixth Amendment right to notice of the

charge against him. Apparently, the information charged Petitioner with “Forcible Oral

Sodomy . . . by . . . unnatural and carnal copulation by anus . . . .” The evidence at trial,

however, reflected only that Petitioner forced his victim to perform oral sex on him.1 The

Oklahoma Court of Criminal Appeals affirmed Petitioner’s conviction, holding that “the

variance . . . amounted to a harmless scrivener’s error.” Washington v. Oklahoma, No. F-

98-208 (Okla. Crim. App., Feb. 11, 1999).

       Thereafter, Petitioner filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, again challenging his conviction on the basis of the variance. In a

thorough Report and Recommendation, a United States Magistrate Judge, applying the

standard enunciated in Williams v. Taylor, 120 S. Ct. 1495 (2000) (construing 28 U.S.C.

§ 2254(d)), recommended the petition be denied because Petitioner could not show he had

been prejudiced by the variance. See Rogers v. Gibson, 173 F.3d 1278, 1287 (10th Cir.

1999). The district court agreed and denied the petition. The court subsequently denied

Petitioner a certificate of appealability. See 28 U.S.C. § 2253(c). His renewed

application is before us.



       1
          The original information charged Petitioner with “Forcible Oral Sodomy . . . by .
. . unnatural and carnal copulation orally . . . .”

                                               2
       A petitioner may appeal the denial of a habeas corpus petition only if a “circuit

justice or judge” issues a certificate of appealability. Id. § 2253(c)(1)(A). A certificate of

appealability “may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. §2253(c)(2); United States v. Simmonds, 111 F.3d

737, 746 (10th Cir. 1997). We conclude that Petitioner has failed to make the required

showing.

       We have thoroughly reviewed Petitioner’s application for a certificate of

appealability, his brief, and the entire record before us. We conclude that Petitioner’s

claims are meritless substantially for the reasons set forth in the magistrate judge’s report

and recommendation to the district court. Because Petitioner has not made a substantial

showing of the denial of a constitutional right, we deny his request for a certificate of

appealability and dismiss the appeal.

APPLICATION DENIED; APPEAL DISMISSED.

                                           Entered for the Court,



                                           Bobby R. Baldock
                                           Circuit Judge




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