                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         FEB 24 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 JEFFREY S. BAGBY,

             Petitioner - Appellant,

 v.                                                     No. 02-5078
                                                  (D.C. No. 00-CV-170-B)
 JAMES SAFFLE, Director of the                       (N.D. Oklahoma)
 Oklahoma Department of Corrections,

             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and HARTZ, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to decide this case on the briefs without oral argument. See Fed. R.

App. P. 34(a)(2)(C) and 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        This order and judgment is not binding precedent, except under the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.
      Jeffrey Bagby, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) to appeal the federal district court’s denial of his 28 U.S.C. §

2254 habeas corpus petition. Because Mr. Bagby has failed to make “a

substantial showing of the denial of a constitutional right” as required by 28

U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.

      In an Oklahoma state court, Mr. Bagby was charged with four counts: (1)

trafficking in illegal drugs; (2) receiving proceeds from illegal drug activity; (3)

failing to obtain a drug stamp; and (4) using a telecommunications device in a

drug transaction, all after former conviction of a felony. After a jury trial, he was

convicted of counts one and four. He was sentenced to 32 years’ imprisonment.

      Mr. Bagby, represented by counsel on direct appeal to the Oklahoma Court

of Criminal Appeals (“OCCA”), raised the following eight claims: (1) deprivation

of the right to a fair trial because the jury foreman told the trial judge that the

foreman was related to the deputy sheriff; (2) double jeopardy violation resulting

from the similarity of counts one and four (drug trafficking and use of

telecommunications device in a drug transaction); (3) improper admission of an

audio tape after admission of videotape of the same incident; (4) prosecutorial

misconduct during closing argument resulting in the denial of a fair and impartial

trial; (5) a violation of Batson v. Kentucky, 476 U.S. 79 (1986), through the

exclusion of a black juror on voir dire; (6) deprivation of the right to a fair trial


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through the modification of uniform jury instructions; (7) deprivation of the right

to a fair trial through the admission of evidence of prior drug sales; and (8) error

by the trial court in prohibiting defense counsel from fully cross-examining a

government witness. The OCCA affirmed.

      Proceeding pro se, Mr. Bagby then filed for, and was denied,

post-conviction relief by the Oklahoma trial court, where he alleged: (1)

violations of the Fifth, Sixth, and Fourteenth Amendments because the

government informant’s testimony was secured after the informant was promised

something of value in exchange for her testimony; and (2) ineffective assistance

of trial and appellate counsel for failing to raise the first claim, that informant’s

testimony was received in exchange for something of value. The state trial court

denied Mr. Bagby’s request for relief. The OCCA remanded on the first claim,

finding that the issue was properly preserved. The trial court again denied relief

and the OCCA affirmed.

      Mr. Bagby then filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 asserting: (1) violations of the Fifth, Sixth, and Fourteenth

Amendments because the government informant’s testimony was secured by

promises for something of value in exchange for her testimony; (2) ineffective

assistance of counsel for failing to raise the above informant claim; (3)

deprivation of the right to a fair trial because the jury foreman told the trial judge



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that the foreman was related to the deputy sheriff; (4) double jeopardy violation

resulting from similarity of counts one and four; (5) undue prejudice from

admission of the audio tape; (6) prosecutorial misconduct during closing

argument, resulting in the denial of a fair and impartial trial; (7) a Batson

violation; (8) deprivation of the right to a fair trial through the modification of the

uniform jury instructions; (9) deprivation of the right to a fair trial by admission

of evidence of prior drug sales; and (10) violation of his right to cross-

examination. The district court, in a well-reasoned order, considered each of Mr.

Bagby’s claims, and denied each on the merits.

      On appeal, Mr. Bagby raises six contentions: (1) violations of the Fifth,

Sixth, and Fourteenth Amendments because the government informant’s testimony

was secured by promises for something of value in exchange for testimony; (2)

deprivation of the right to a fair trial because the jury foreman told the trial judge

that the foreman was related to the deputy sheriff; (3) double jeopardy violation

from the similarity of counts one and four; (4) deprivation of the right to a fair

trial through the modification of the uniform jury instructions; (5) deprivation of

the right to a fair trial through the improper admission of evidence of prior drug

sales; and (6) violation of his right to full and fair cross-examination.

      To obtain a COA so that he can appeal the district court’s denial of his §

2254 habeas petition, Mr. Bagby must make a “substantial showing of the denial



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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).

      Upon thorough consideration of Mr. Bagby’s brief and contentions on

appeal and upon de novo review of the district court’s detailed order and the

entire record on appeal, we conclude that Mr. Bagby has demonstrated no reason

for us to conclude that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong. In fact, we are

persuaded that the reasoning of the district court is sound and we agree that the

OCCA’s conclusions were not contrary to, and did not involve an unreasonable

application of, clearly established federal law. Accordingly, we DENY the

application for a COA and DISMISS the appeal.

                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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