                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 29 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    THOMAS RAY WEAVER, JR.,

                Petitioner-Appellant,

    v.                                                   No. 00-6386
                                                   (D.C. No. 97-CV-1443-R)
    RON WARD,                                            (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior
Circuit Judge.




         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.




*
      This order and judgment is not binding precedent, except under the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.
       Thomas Ray Weaver, Jr. appeals from the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This court

previously granted petitioner a blanket certificate of appealability for all issues he

raises on appeal, see § 2253(c), and respondent filed a response brief. On further

consideration of the merits of petitioner’s arguments, we affirm the district

court’s denial of the petition.

       In 1988 petitioner was convicted in an Oklahoma state court of rape,

kidnapping, robbery and two counts of sodomy, after former conviction of two or

more felonies, and was sentenced to more than 200 years’ imprisonment. His

convictions and sentences were affirmed on appeal, and his request for state

post-conviction relief was denied. In September 1997, he filed this habeas

petition in the district court asserting a variety of challenges to his convictions. A

magistrate judge recommended that the petition be denied. Rejecting petitioner’s

objections to the magistrate judge’s report, the district court adopted the report

and denied the petition. On appeal, petitioner raises four issues. Because

petitioner proceeds pro se, as he did in the district court, we construe his brief and

pleadings liberally.   See Haines v. Kerner , 404 U.S. 519, 520-21 (1972). The

district court did not hold an evidentiary hearing, so our review of its decision is

de novo. See United States v. Powell , 159 F.3d 500, 500 (10th Cir.1998).




                                          -2-
       Petitioner first contends that he was denied his right to a hearing on his

state application for post-conviction relief and that he was thereby denied his

right to due process. As the district court noted, no federal constitutional

provision requires a state to provide post-conviction review, and any error in this

regard is simply a matter of state law and not cognizable on federal habeas

review. See Sellers v. Ward , 135 F.3d 1333, 1339 (10th Cir. 1998) (“[B]ecause

the constitutional error [petitioner] raises focuses only on the State’s post-

conviction remedy and not the judgment which provides the basis for his

incarceration, it states no cognizable federal habeas claim.”). We therefore reject

this argument.

       Petitioner next contends that he was denied effective assistance of trial

counsel because a police witness threatened counsel, thus creating a conflict of

interest between counsel’s concern for his own safety and his defense of

petitioner. The district court concluded that this claim was procedurally barred

because state courts held he could have raised it on direct appeal,   see English v.

Cody , 146 F.3d 1257, 1264 (10th Cir. 1998), and petitioner does not argue that

this conclusion is incorrect. To the extent that petitioner contends appellate

counsel should have raised this issue on direct appeal, either to show cause to

excuse the procedural bar or as a separate claim of ineffective appellate counsel,

petitioner’s contention fails because he has not demonstrated that the claim had


                                            -3-
any merit. After the conflict issue was raised in the trial court, the judge

concluded that he thought counsel could set aside his personal concerns and

provide adequate representation. Counsel proceeded with the defense, and

petitioner has not shown that there was an actual conflict or how the alleged

conflict detrimentally affected his counsel’s performance.    See United States v.

Litchfield , 959 F.2d 1514, 1518 (10th Cir. 1992) (“In order to establish an actual

conflict, defendant must demonstrate as a threshold matter that the defense

attorney was required to make a choice advancing his own interests to the

detriment of his client’s interests.”) (quotation omitted).

      Petitioner raises several issues concerning his appellate representation.

First, he contends that his appointed appellate counsel was ineffective for failing

to raise a variety of issues on direct appeal: he was denied compulsory process of

witnesses; illegally obtained evidence was used against him; he was subjected to

an overly suggestive and improper lineup; he was charged on a multiple count

indictment for what was essentially unitary conduct; the prosecution failed to

disclose exculpatory evidence; and evidence of his prior criminal convictions was

improperly introduced during the guilt phase of his trial. He also contends that

his retained appellate counsel was ineffective because the Oklahoma Court of

Criminal Appeals rejected his brief due to counsel’s violation of a court rule. The

district court thoroughly analyzed these claims and held that, since none of the


                                           -4-
issues petitioner claims should have been raised were meritorious, petitioner’s

two counsel were not ineffective because he suffered no prejudice from their

failure to raise the issues on appeal.   See United States v. Cook , 45 F.3d 388,

392-93 (10th Cir. 1995). On this appeal, petitioner reasserts his contentions in

only the most general and conclusory terms and makes no attempt to show how he

was prejudiced by counsel’s performance or how the district court erred.

Although petitioner is representing himself, we will not construct his arguments

for him. See Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991).

Moreover, we have reviewed the arguments petitioner presented in the district

court, and we see nothing undermining the district court’s analysis.

       Finally, petitioner contends that the district court did not interpret his

claims under the liberal standard accorded pro se litigants under    Haines . To the

contrary, the district court went out of its way to liberally construe petitioner’s

pleadings, to the extent that it addressed ineffective appellate counsel claims that

petitioner asserted only in his application for state post-conviction relief. This

argument is totally without merit.




                                            -5-
     The judgment of the United States District Court for the Western District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Bobby R. Baldock
                                                  Circuit Judge




                                       -6-
