                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         APR 22 1997
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


GILBERT DEAN DAVIS,

             Petitioner-Appellant,
                                                       No. 96-6152
v.                                                (W. Dist. of Oklahoma)
                                                (D.C. No. CIV-95-1845-W)
JUSTINE JONES,

             Respondent-Appellee.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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.
      This matter is before the court on Petitioner Gilbert Dean Davis’

application for a certificate of appealability to appeal the district court’s dismissal

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Because Mr. Davis

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

this petition constitutes an abuse of the writ, we deny his application and dismiss

the appeal. See Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2253(c)(2).

      Mr. Davis filed a petition for a writ of habeas corpus with the district court

contending that he was denied his Sixth Amendment right to effective assistance

of counsel and his due process right to a post-examination competency hearing.

The magistrate judge reviewed Mr. Davis’ petition and recommended that it be

dismissed for abuse of the writ. See Rules Governing Section 2254 Cases 9(b).

The district court agreed with the magistrate judge and dismissed Mr. Davis’

petition April 15, 1996.

      We have reviewed the magistrate judge’s report and recommendation, the

district court’s order, Petitioner’s application for a certificate of appealability,

and the record before us. We conclude that Petitioner has failed to make a

substantial showing of a denial of a constitutional right for substantially the

reasons set forth in the report and recommendation of March 18, 1996.




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Accordingly, we DENY Petitioner’s application for a certificate of appealability

and DISMISS the appeal.

                                     ENTERED FOR THE COURT,



                                     Michael R. Murphy
                                     Circuit Judge




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