                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           May 24, 2012
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT


 JOHNNY LEE ROBINSON,
                 Petitioner–Appellant,                          No. 11-6306
           v.                                          (D.C. No. 5:10-CV-00836-D)
 JAMES RUDEK,                                                (W.D. Oklahoma)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. Following a jury trial,

Petitioner was convicted by an Oklahoma state court of assault and battery with a

dangerous weapon after former convictions. His conviction and sentence were affirmed

on direct appeal. He then filed two applications for post-conviction relief, both of which

were denied. In denying relief on Petitioner’s second application for post-conviction

relief, the Oklahoma Court of Criminal Appeals held that the claims raised in this

application were procedurally barred because they could have been and were not raised in



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
the first application for post-conviction relief.

       In the instant habeas petition, Petitioner argued that (1) he was not mentally

competent at the time of his trial; (2) he was denied his right to appeal the prior

convictions used to enhance his sentence; (3) his conviction violated his Double Jeopardy

rights; (4) his sentence violated the Eighth Amendment; and (5) he was denied effective

assistance of appellate counsel because counsel mistakenly referred to his conviction as

one for first-degree murder rather than assault and battery. The matter was referred to a

magistrate judge, who concluded that all but the first claim were procedurally barred

because they were raised for the first time either in the second application for state post-

conviction relief or in the instant federal habeas petition. See Smallwood v. Gibson, 191

F.3d 1257, 1267-69 (10th Cir. 1999). As for the competency claim, the magistrate judge

recommended denial of this claim on the merits. The magistrate judge concluded that the

evidence in the record did not support this claim and, indeed, that Petitioner’s trial

testimony demonstrated his ability to understand and participate in the proceedings

against him. After considering Petitioner’s objections, the district court adopted the

magistrate judge’s recommendation and denied relief.

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s ruling. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Our independent review of the record persuades us

that reasonable jurists would not debate the magistrate judge’s thorough explanation of

why relief should be denied, nor would reasonable jurists debate the district court’s

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decision to adopt that recommendation. For substantially the same reasons given by the

magistrate judge and district court, we DENY Petitioner’s request for a certificate of

appealability and DISMISS the appeal. Petitioner’s request for the appointment of

counsel to represent him on appeal is DENIED. Petitioner’s motion for leave to proceed

in forma pauperis is GRANTED.


                                                  ENTERED FOR THE COURT



                                                  Monroe G. McKay
                                                  Circuit Judge




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