                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 14, 2008
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT


 BILLY DEWAYNE DAVIS,

          Petitioner-Appellant,
 v.
                                                        No. 07-6285
 JUSTIN JONES,                                    (D.C. No. CIV-07-424-R)
                                                        (W.D. Okla.)
          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Petitioner-Appellant Billy DeWayne Davis requests a certificate of

appealability (“COA”), see 28 U.S.C. § 2253(c), that would enable him to appeal

the district court's decision denying him habeas relief, see 28 U.S.C. § 2254, from

his Oklahoma conviction for possession of a controlled dangerous substance.

Davis has also filed a motion to proceed in forma pauperis (IFP) on appeal.

      In his habeas petition, Davis raises several issues with respect to his

conviction: (1) whether the evidence was insufficient to support his conviction;


      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
(2) whether the prosecutor improperly commented on Davis’ right to remain

silent; (3) whether the trial court improperly responded to a jury inquiry; and (4)

whether his sentence is excessive.

       Davis will be entitled to a COA if he can make “a substantial showing of

the denial of a constitutional right." 28. U.S.C. § 2253(c)(2). He can make such

a showing by establishing 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. McDaniel, 529 U.S. 473, 483-84 (2000) (quotations

omitted). For substantially the reasons set forth in the magistrate judge’s report

and recommendation, adopted by the district court, we conclude that Davis has

failed to make an adequate showing in this case. We, therefore, DENY Davis’

motion for a COA and DISMISS this appeal. Davis’ motion to proceed IFP is

granted, and we remind him of his obligation to continue making partial payments

until his appellate filing fee is paid in full.

                                          ENTERED FOR THE COURT



                                          David M. Ebel
                                          Circuit Judge




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