                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     October 24, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 JA M ES M U RL B ULLO CK ,
              Petitioner-Appellant,                      No. 06-6051
 v.                                               (D.C. No. 05-CV-215-W )
 ERIC FRANKLIN , W arden,                               (W . D. Okla.)
              Respondent-Appellee.



                                      OR DER


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254.

Follow ing a plea of guilty, Petitioner was sentenced to twenty-five years’

imprisonment for attempted manufacturing of controlled dangerous substances

conjointly with others. Petitioner’s motion to withdraw his guilty plea and his

direct appeals in the Oklahoma state courts were unsuccessful. His petition for

post-conviction relief, which raised claims of ineffective assistance of counsel

and lack of probable cause, was denied by the state district court. His appeal

from that denial was dismissed by the Oklahoma Court of Criminal Appeals as

untimely.

      In his petition for federal habeas corpus, he again raised ineffective

assistance of counsel and lack of probable cause (properly characterized as a
claim of actual innocence). The magistrate judge recommended denial of the

petition on the ground that it was procedurally defaulted. The district court

adopted that recommendation. Petitioner filed a Notice of Intent to Appeal,

which the district court construed as a request for a certificate of appealability

and denied. Petitioner then requested a certificate of appealability from this

court.

         The magistrate judge’s Report and Recommendation adequately and

correctly sets forth the facts relating to state procedural default. W e agree with

the magistrate judge that Petitioner’s attempt to show a miscarriage of justice by

arguing actual innocence is w ithout support in the record. His affidavit on this

issue did not address the crime of w hich he w as convicted or otherwise

demonstrate actual innocence.

         To obtain a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to meet this burden, Petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

         W e have carefully reviewed Petitioner’s brief, the magistrate judge’s

Report and Recommendation, the district court’s disposition, and the record on

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appeal. Nothing in the facts, the record on appeal, or Petitioner’s filing raises an

issue which meets our standard for the grant of a certificate of appealability. For

substantially the reasons set forth in the magistrate judge’s Report and

Recommendation, we hold that no reasonable jurist would debate the correctness

of the trial court’s order dismissing the petition for habeas corpus.

      Accordingly, we GR A N T the petition to proceed in forma pauperis, DEN Y

the request for a certificate of appealability, and DISM ISS the appeal.

                                                Entered for the Court



                                                M onroe G. M cKay
                                                Circuit Judge




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