                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                            July 28, 2006
                                      TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                            Clerk of Court

 CA M ERO N C . BRA ZILLE,

           Petitioner - A ppellant,

 v.                                                         No. 05-7049
                                                         (E.D. Oklahoma)
 GLYNN BOOHER, W arden,                              (D.Ct. No. CIV-02-440-S)

           Respondent - Appellee.



                     OR D ER D EN YING LEAVE TO PROCEED
                         ON APPEAL IN FORM A PAUPERIS,
                  D EN Y IN G C ER TIFICATE OF APPEALABILITY,
                          A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, O’BRIEN, and TYM KOVICH, Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Cameron C. Brazille, a state inmate appearing pro se, 1 seeks a certificate of

appealability (COA) allowing him to appeal from the district court’s denial of his




       1
        We liberally construe Brazille’s pro se pleadings. See Ledbetter v. City of
Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
petition for writ of habeas corpus under 28 U.S.C. § 2254 . 2 Because Brazille 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 a COA and dismiss his application.

       O n A ugust 17, 1999, B razille and Brenda Conard attempted to cash two

stolen checks at Harp’s Foods Store in Fort Gibson, Oklahoma. They left the

store in a pickup truck driven by another male. W hen the arresting officer

stopped the pickup truck, the officer discovered a third stolen check on Brazille’s

person. B razille w as arrested and charged in Oklahoma state court with two

counts of uttering a forged instrument (Counts 1 and 3) and three counts of

knowingly concealing stolen property (Count 2, 4-5). The jury found him guilty

on all five counts. The trial judge merged the three counts of knowingly

concealing stolen property into one count, Count 2, and sentenced Brazille to

three concurrent twenty year periods of imprisonment. Brazille appealed to the

Oklahoma Court of Criminal Appeals (O CCA), w hich affirmed the conviction.

He also filed a petition for post-conviction relief in state court which was denied;

his appeal from that denial w as unsuccessful.




       2
          Brazille never filed a request for a COA with the district court but did file a
notice of appeal, which is construed as a request for a COA. F ED. R. A PP. P. 22(b);
Hoxsie v. Kerby, 108 F.3d 1239, 1241 (10th Cir. 1997). The district court never ruled on
the COA issue. “Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a [COA] within thirty days after filing the notice of appeal
as a denial of the certificate.” United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th
Cir. 2000).

                                              -2-
       On August 16, 2002, Brazille filed a § 2254 petition in the United States

District Court for the Eastern District of Oklahoma. In this petition, Brazille

raised the following grounds for relief: (1) the stolen check found on his person

(w hich was the basis for Count 5) should have been suppressed under the Fourth

Amendment because it was the fruit of an unlaw ful search; (2) his sentence is

excessive because no harm resulted from the offense; (3) he should not be held

liable for the check Conard attempted to cash (Count 1) and insufficient evidence

was presented that he aided and abetted her; (4) trial counsel was ineffective for

failing to have Count 1 suppressed and to investigate the charges; (5) his double

jeopardy rights were violated because he was charged with multiple crimes and

received multiple sentences for a single act; (6) the testimony of the arresting

officer and the owner of the stolen checks was not credible; and (7) the evidence

was insufficient that he was the male individual who presented the checks at the

store and in fact, it was the driver of the truck who presented the checks at the

store. 3 In a thorough analysis, the magistrate judge rejected these claims on the

merits. The district court agreed with the magistrate and denied Brazille’s § 2254



       3
          In his appellate brief, Brazille claims the district court failed to address his
argument that the state trial judge exceeded his authority by dismissing the jury prior to
the penalty phase. The reason the district court did not address the argument is that he
raised it for the first time in his objections to the magistrate judge’s report and
recommendation. Moreover, Brazille failed to exhaust his state court remedies on this
claim. Nevertheless, the record shows that Brazille stipulated for purposes of sentencing
that he had two or more prior felony convictions. Consequently, no further fact-finding
was necessary.

                                            -3-
petition.

         W e have thoroughly reviewed the entire record, which includes the

transcripts of Brazille’s trial, and the relevant authority. For substantially the

same reasons relied upon by the magistrate, w e cannot say “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.” 4 Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (quotations omitted). Therefore, Brazille’s request for a COA is

DENIED and his application is DISM ISSED. Because Brazille has not show n

“the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal,” his request to proceed in form a pauperis

on appeal is DENIED. DeBardeleben v. Quinlan, 937 F.2d 502 , 505 (10th Cir.

1991).

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




         4
         On appeal, Brazille claims the district court did not timely address his § 2254
petition. Because Brazille’s petition was properly denied, any delay in its resolution was
not prejudicial.

                                            -4-
