                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             JUN 7 2002
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    JOSEPH JEROME DENNIS,

                Petitioner - Appellant,

    v.                                                     No. 00-6375
                                                     (D.C. No. 00-CV-658-C)
    MIKE MULLIN, * Warden, Oklahoma                     (W.D. Oklahoma)
    State Penitentiary,

                Respondent - Appellee.


                             ORDER AND JUDGMENT           **




Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.




         After examining petitioner’s brief and the 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.


*
      Mike Mullin replaced Gary Gibson as Warden of the Oklahoma State
Penitentiary effective March 25, 2002.
**
      This order and judgment is not binding precedent, except under the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.
       This case is before the court on Joseph Jerome Dennis’s         pro se request for

a certificate of appealability (COA). Dennis seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas petition.       See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a

§ 2254 habeas petition unless the petitioner first obtains a COA). Because Dennis

has not “made a substantial showing of the denial of a constitutional right,” this

court denies his request for a COA and dismisses this appeal.         Id. § 2253(c)(2).


                                             I.

       After a jury trial, Dennis was convicted of first degree murder and

sentenced to life imprisonment without parole for shooting an auto mechanic in

Chickasha, Oklahoma. On direct appeal to the Oklahoma Court of Criminal

Appeals (OCCA), Dennis asserted two errors. First, Dennis claimed that he had

invoked his right to an attorney at his girlfriend’s house, while in the custody of

police officers, and therefore his subsequent statements to the police should have

been suppressed. Second, he claimed the trial court erred in failing to grant the

motion to suppress his statements given at the police station because he should

have been informed his attorney was present and available to consult him. The

OCCA rejected both claims and affirmed his conviction.             Dennis v. State, 990

P.2d 277 (Okla. Crim. App. 1999).



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       In his application for state post-conviction relief, Dennis raised the

following seven grounds for reversing his conviction:

       (1) his trial counsel was ineffective;

       (2) his appellate counsel was ineffective;

       (3) the trial court failed to question the jury about possible racial bias;

       (4) the conviction was based on insufficient evidence;

       (5) the trial court erred in admitting his involuntary confession;

       (6) the trial court erroneously denied the submission of certain jury
       instructions; and

       (7) the prosecutor’s closing argument was prejudicial.

The state district court denied the application, concluding that each of these

issues either had been, or should have been, raised on direct appeal. The OCCA

affirmed, concluding that (1) ground number five was specifically addressed on

direct appeal and therefore   res judicata; (2) grounds number one, three, four, six,

and seven were waived when they were not raised on direct appeal; and

(3) ground number two was substantively meritless.

       In his federal habeas petition, Dennis made three arguments all related to

his desire to have the court suppress statements he made to the police. Dennis’s

first two arguments were identical to the two claims of error he asserted on direct

appeal; therefore, the magistrate judge addressed those issues on the merits and

found that Dennis was not entitled to habeas relief on either basis.

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       In his third argument, Dennis claimed to have invoked his right to counsel

while at the police station and not to have reinitiated contact with the police. The

magistrate judge found this claim to be unexhausted because it was not raised

either on direct appeal or in Dennis’s application for state post-conviction review.

The magistrate judge recommended, however, that because this unexhausted claim

would be procedurally barred from post-conviction review under Oklahoma law,

it be deemed exhausted and thus procedurally barred for purposes of federal

habeas review pursuant to    Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991).

Furthermore, the magistrate judge found that Dennis had shown neither cause for

the default or prejudice in his case, nor a fundamental miscarriage of justice.

After consideration of Dennis’s objections to the magistrate judge’s

recommendations, the district court adopted them in their entirety.


                                            II.

       As noted above, Dennis must obtain a COA before he can appeal the

district court’s denial of his § 2254 habeas petition. Dennis must make a

“substantial showing of the denial of a constitutional right” before he is entitled

to a COA. 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating

that the issues raised are debatable among jurists, a court could resolve the issues

differently, or that the questions presented deserve further proceedings.   See Slack

v. McDaniel, 529 U.S. 473, 483-84 (2000). This court has conducted a

                                            -4-
comprehensive de novo review of Dennis’s request for a COA and accompanying

brief, the magistrate judge’s report and recommendation, and the entire record on

appeal. After that review, we conclude that the district court correctly resolved

Dennis’s claims and that it is unnecessary for this court to expound on that court’s

analysis. Accordingly, this court DENIES Dennis’s request for a COA for

substantially those reasons set forth in the magistrate judge’s report and

recommendation dated September 15, 2000, and DISMISSES this appeal.

Dennis’s request to proceed in forma pauperis is GRANTED.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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