                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 22 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk

 ELGIN MARCORA BROWN,

          Petitioner - Appellant,
                                                        No. 02-6041
 v.                                               D.C. No. CIV-01-1121-R
                                                     (W.D. Oklahoma)
 RANDALL G. WORKMAN, Warden;
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Petitioner-Appellant Elgin Marcora Brown, a state inmate appearing pro se,

seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order denying him relief on his petition for a writ of habeas corpus.

Because Mr. Brown has not made “a substantial showing of the denial of a

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a COA and

dismiss the appeal.

      On November 6, 1998, a jury convicted Mr. Brown of Unlawful Trafficking

of Cocaine (Count I), Unlawful Possession of Marijuana with Intent to Distribute

(Count II), Felonious Possession of a Firearm (Count III), Unlawful Possession of

a Firearm in the Commission of a Felony (Count IV), Unlawful Possession of a

Firearm with an Altered Serial Number (Count V), Racketeering (Count VI), and

Unlawful Possession of Paraphernalia (Count VII), all after former conviction of

two or more felonies. On direct appeal, the Oklahoma Court of Criminal Appeals

(“OCCA”) reversed Mr. Brown’s convictions on Counts VI and VII, but affirmed

the convictions and sentences on the other five counts. This resulted in

consecutive sentences of: life imprisonment without parole and a $25,000 fine

on Count I, twenty years imprisonment and a $20,000 fine on Count II, twenty

years imprisonment on Count III, thirty years imprisonment on Count IV, and

twenty-five years on Count V. Thereafter, Mr. Brown unsuccessfully sought post-

conviction relief in state district court; the OCCA affirmed the denial of post-

conviction relief.

      On July 17, 2001, Mr. Brown filed his habeas petition pursuant to 28

U.S.C. § 2254 and a motion for evidentiary hearing and appointment of counsel.

The matter was referred to a magistrate judge who in a report and


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recommendation suggested that the petition be denied, along with the requests for

an evidentiary hearing and appointment of counsel. R. Doc. 12. After

considering objections to the report, the district court adopted it. R. Doc. 14.

      On appeal, Mr. Brown argues that the district court’s factual determinations

justifying the denial of his claims of ineffective assistance of counsel,

insufficiency of the evidence, and the denial of his request for an evidentiary

hearing and appointment of counsel are clearly erroneous. Aplt. Br. 16 & 16.e.

First, he claims that appellate counsel was ineffective for not arguing that trial

counsel was ineffective for 1) failing to challenge the validity of the “no knock”

warrant authorizing the search of his apartment, Aplt. Br. at 16-16.a, and 2)

stipulating to the results of a chemist’s report which Mr. Brown claims suffered

from chain of custody deficiencies. Aplt. Br. at 16.b. Second, Mr. Brown claims

that the evidence at trial was insufficient to sustain his convictions for possession

of a firearm with an altered serial number, possession of marijuana with intent to

distribute, and possession of a firearm during the commission of a felony. Aplt.

Br. at 16, 16.c-16.d. Third, Mr. Brown argues that the district court should have

appointed counsel and granted him an evidentiary hearing. Aplt. Br. at 16.e.

      Because Mr. Brown filed his habeas petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the

provisions of that act are applicable. See Lindh v. Murphy, 521 U.S. 320, 326-27


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(1997). Pursuant to AEDPA, we may not grant a habeas petition with respect to

any claim adjudicated on the merits in state court “unless the adjudication of the

claim— (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is

contrary to clearly established federal law under § 2254(d)(1) “if the state court

arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than [the Supreme

Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 413 (2000). A state court decision is an unreasonable application of

federal law under § 2254(d)(2) “if the state court identifies the correct governing

legal principle from [the Supreme Court's] decisions but unreasonably applies that

principle to the facts of the prisoner's case.” Id.

      We have carefully reviewed the district court’s order as well as the report

and recommendation of the magistrate judge. We are satisfied that the many

issues raised by Mr. Brown were correctly analyzed. He has not met the burdens

imposed by AEDPA and for substantially the same reasons given by the district




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court we DENY a COA, DENY leave to proceed in forma pauperis, and DISMISS

the appeal.


                                  Entered for the Court


                                  Paul J. Kelly, Jr.
                                  Circuit Judge




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