                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 21 2002
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 SAMUEL CLAY WILHOIT,

          Petitioner - Appellant,
 v.                                                     No. 01-6294
                                                 (D.C. No. 00-CIV-1947-A)
 H. N. SCOTT, Warden,                                   (W.D. Okla.)

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


      Petitioner-Appellant Samuel Clay Wilhoit, an inmate appearing pro se,

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

court’s order denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254.

Because Petitioner 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 his request


      *
        This order and judgment is not binding precedent, except under the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.
and dismiss the appeal.

      Petitioner was convicted after a jury trial of one count of possession of a

firearm after former conviction of a felony, one count of eluding a police officer,

one count of reckless driving, and two counts of failure to stop at a stop sign.

The court sentenced Petitioner to thirty-five years on the possession of a firearm

count, to be served consecutively with the remaining counts. In his petition,

Petitioner seeks relief only on the possession of a firearm conviction. Petitioner

sought a direct appeal of his conviction to the Oklahoma Court of Criminal

Appeals (“OCCA”) which affirmed the conviction in a summary opinion.

Petitioner did not seek post-conviction relief in Oklahoma, however, the State

concedes that he has exhausted his state court remedies. R. Doc. 7 at 2.

      In his original petition before the United States District Court, Petitioner

raised three grounds for relief: (1) the OCCA violated his due process and equal

protection rights with its summary opinion that failed to address whether the

statute under which he was charged, Okla. Stat. tit. 21, § 1283(A), applied to his

conduct; (2) the evidence was insufficient to prove he was guilty under §

1283(A); and (3) the state trial court allowed the State to present irrelevant and

prejudicial evidence. After referral of the matter from the district court and

receipt of the State’s response, the magistrate judge issued a thorough Report and

Recommendation, recommending dismissal of the petition. R. Doc. 12. After


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Petitioner filed an objection to the magistrate’s Report and Recommendation and

the State filed a response, the district court adopted the Report and

Recommendation and denied the petition. R. Doc. 16.

      In this appeal, Petitioner raises two issues: (1) that in light of his asserted

“actual and factual innocence” of the firearm possession statute, both the

Oklahoma trial court and the OCCA should have ensured jurisdiction over his

case; and (2) that the federal district court failed to address his “actual and factual

innocence claim.” Aplt. Br. at 16. Petitioner’s first issue is at bottom an attack

on the state courts’ construction of the firearm possession statute, a construction

to which we are bound in habeas review. See Dennis v. Poppel, 222 F.3d 1245,

1257 (10th Cir. 2000) (citing Missouri v. Hunter, 459 U.S. 359, 368 (1983)). As

to Petitioner’s second contention, we agree with the magistrate’s Report and

Recommendation concluding that the State presented sufficient circumstantial

evidence to support his conviction and that the OCCA’s resolution of this issue is

not contrary to or an unreasonable application of federal law. 28 U.S.C. §

2254(d)(1); R. Doc. 12 at 5–7.

      We have carefully reviewed Petitioner’s request for a COA, his appellate

brief, the magistrate judge’s recommendation, and the appellate record, and

conclude that he has failed to demonstrate that the issues raised are debatable

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


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questions presented deserve further proceedings. See Slack v. McDaniel, 529

U.S. 473, 483–84 (2000). As such, Petitioner has failed to make the “substantial

showing of the denial of a constitutional right” required for a COA. 28 U.S.C. §

2253(c)(2).

      Accordingly, for substantially the reasons set forth by the magistrate judge,

we DENY Petitioner’s request for a COA and IFP and DISMISS his appeal.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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