                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 9, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 DELBERT LENARD JOHNSON,

               Petitioner - Appellant,
                                                        No. 11-6278
 v.                                              (D.C. No. 5:11-CV-00346-C)
                                                        (W.D. Okla.)
 ROBERT EZELL, Warden,

               Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.


      Delbert Lenard Johnson, an Oklahoma state prisoner, filed a petition

pursuant to 28 U.S.C. § 2254. In that petition, he sought relief from his

convictions and sentences for felony murder in the first degree, unauthorized use

of a credit card, and unauthorized use of a vehicle. Ultimately, the magistrate

judge assigned to assess the case issued a fifty page report recommending denial

of the petition. The district court entertained objections to the magistrate judge’s

report but eventually adopted it in full. Later, the district court denied Mr.




      *
         This order is not binding precedent except under the doctrines of law of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.
Johnson’s request for a certificate of appealability (“COA”) to allow him to

contest this decision.

      Now, Mr. Johnson seeks a COA from this court. We may grant a COA,

however, only if Mr. Johnson first makes a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, an applicant

must show “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, 484 (2000) (internal quotation omitted).

Because Mr. Johnson proceeds in this court pro se, we review his pleadings with

special solicitude.

      Even so, none of Mr. Johnson’s claims merits a COA. In this court, as in

the district court, Mr. Johnson has sought to pursue nine claims. After careful

review, however, we conclude that none involves a situation where reasonable

jurists could debate the decision to deny relief. The magistrate judge’s extensive

report explains why this is so and we, like the district court, find ourselves unable

to add to what that report carefully explains.

      Separately but relatedly, Mr. Johnson argues that the magistrate judge erred

by employing the deferential standards of review embodied in the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), as well as by denying him

an evidentiary hearing. But here again the magistrate judge’s report dealt amply

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with these questions. The magistrate judge explained that AEDPA deference

applies where, as here, the state court addressed the merits of the petitioner’s

claims. See Report & Recommendation at 4; ROA Vol. 1 at 12-19. The

magistrate judge likewise explained that no evidentiary hearing was legally

required in this case and that, in any event, the evidence Mr. Johnson offered to

present at such a hearing would make no difference to the outcome. See Report &

Recommendation at 48-50.

      Mr. Johnson’s application for a COA and his motion for leave to proceed in

forma pauperis are denied and this appeal is dismissed.


                                        ENTERED FOR THE COURT



                                        Neil M. Gorsuch
                                        Circuit Judge




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