                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 31 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


CHRISTOPHER FOOTE,

          Petitioner-Appellant,
                                                       No. 01-6150
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. 00-CV-340-W)
GLYNN BOOHER, Warden,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRISCOE, HENRY, and MURPHY, 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.




      *
       This order and judgment is not binding precedent, except under the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 case is before the court on Christopher Foote’s application for a

certificate of appealability (“COA”). Foote seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that a petitioner must first obtain a COA

before he can appeal the denial of a § 2254 habeas petition). Because Foote has

not “made a substantial showing of the denial of a constitutional right,” this court

denies his request for a COA and dismisses the appeal. Id. § 2253(c)(2).

      In his § 2254 habeas petition, Foote challenged his Oklahoma state

conviction of second degree burglary, after former conviction of two or more

felonies, for which he was sentenced to twenty years in prison. Foote alleged the

following six grounds for relief in his habeas petition: (1) his conviction was not

supported by sufficient evidence; (2) his trial counsel was constitutionally

ineffective; (3) his appellate counsel was constitutionally ineffective; (4) the trial

court improperly failed to instruct the jury regarding lesser-included offenses; (5)

the trial court improperly refused to give the jury a cautionary instruction

regarding eyewitness identification; and (6) the trial court improperly admitted

evidence of Foote’s prior felony convictions. After the matter was referred to a

magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), the

magistrate judge issued a comprehensive and well-reasoned Report and

Recommendation, recommending that Foote’s petition be denied. After


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conducting a de novo review, the district court adopted the Report and

Recommendation and denied Foote’s § 2254 habeas petition.

      To be entitled to a COA, Foote must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Foote may make this

showing by demonstrating the issues he seeks to raise on appeal are debatable

among jurists, a court could resolve the issues differently, or that the questions

presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473,

483-84 (2000). Upon review of Foote’s appellate filings, the magistrate judge’s

well-stated Report and Recommendation, and the entire record, we conclude that

Foote has not made the requisite showing of the denial of a constitutional right

for substantially those reasons set out in the magistrate judge’s Report and

Recommendation. Accordingly, this court GRANTS Foote’s request to proceed

in forma pauperis, DENIES his request for a COA, and DISMISSES the appeal.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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