                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 28, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 OSCAR HENRY BRANHAM,

               Petitioner - Appellant,
                                                        No. 11-6276
                                                 (D.C. No. 5:10-CV-00601-C)
 v.
                                                        (W.D. Okla.)
 JANE STANDIFIRD, Warden,

               Respondent - Appellee.



                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY *


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


      Oscar Henry Branham, a prisoner in the custody of the State of Oklahoma

proceeding pro se, 1 seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 petition. Additionally, he has

renewed his motion, previously denied by the district court, to proceed on appeal

in forma pauperis. Having thoroughly reviewed the relevant law and the record,

      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Branham is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010).
we deny Mr. Branham’s request for a COA, deny Mr. Branham’s request to

proceed in forma pauperis, and dismiss this matter.

      Mr. Branham was tried by a jury and convicted of one count of possession

of a controlled dangerous substance after prior felony convictions (Count I) and

one count of assault and battery of a police officer (Count II). He was sentenced

to twenty years for Count I and three years for Count II, with the terms to be

served concurrently. On direct appeal, the OCCA upheld his sentence and

conviction in a summary opinion.

      Mr. Branham then filed his habeas petition in federal district court under 28

U.S.C. § 2254. Among other things, Mr. Branham alleged that there was

insufficient evidence to support his conviction for possession of a controlled

dangerous substance, that the prosecutor committed misconduct, and that his

lawyer’s representation was constitutionally ineffective. The district court

referred his petition to a magistrate judge for consideration. The magistrate judge

recommended that the petition be denied. After reviewing Mr. Branham’s

objections to the magistrate judge’s recommendation, and his motion seeking

leave to amend his petition, the district court adopted the recommendation and

denied Mr. Branham’s motion for leave to amend. Mr. Branham then sought a

COA from the district court and filed a motion to proceed in forma pauperis. The

district court denied both Mr. Branham’s request for a COA and his motion to

proceed in forma pauperis.

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      Mr. Branham now seeks a COA from our court regarding three claims.

Specifically, Mr. Branham seeks a COA on his claims that: (1) “the trial evidence

was insufficient to support conviction for possession of a controlled dangerous

substance,” (2) “the prejudicial effect of prosecutor misconduct constituted

fundamental error of a fair trial,” and (3) he “was [prejudiced] by ineffective

assistan[ce] of counsel.” Aplt. Opening Br. at 15.

      “Before an appeal may be entertained, a prisoner who was denied habeas

relief in the district court must first seek and obtain a COA . . . .” Miller-El v.

Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. § 2253(c)(1)(A). We will

not issue a COA unless “the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord Harris v.

Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011) (quoting 28 U.S.C. § 2253(c)(2)).

“To make such a showing, an applicant must demonstrate ‘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.’” Harris, 642 F.3d at 906 (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      Pursuant to the framework set out by the Supreme Court in Miller-El, we

have carefully reviewed Mr. Branham’s combined opening brief and application

for COA as well as the record, including the magistrate judge’s thorough report

and recommendation and the district court’s orders. Based upon this review, we

                                          -3-
conclude that Mr. Branham is not entitled to a COA on any of his claims because

he has not made a substantial showing of the denial of a constitutional right.

Reasonable jurists could not debate whether Mr. Branham’s § 2254 motion should

have been resolved in a different manner, and the issues that he seeks to raise on

appeal are not adequate to deserve encouragement to proceed further.

      As for Mr. Branham’s motion to proceed in forma pauperis, the district

court found that Mr. Branham’s “appeal is not taken in good faith . . . [because]

the issues [he] seeks to raise on appeal lack merit,” and so denied his motion to

proceed in forma pauperis. Branham v. Standifird, Dist. Ct. No. 5:10-cv-00601-

C, Doc. 58, at 2 (Order, filed Nov. 21, 2011). Mr. Branham renewed this motion

in his filings to our court. We too deny his motion because we agree with the

district court that Mr. Branham has not demonstrated “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh

v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)) (internal quotation

marks omitted).




                                         -4-
      Accordingly, we deny Mr. Branham’s request for a COA, deny his motion

to proceed in forma pauperis, and dismiss this matter.



                                             Entered for the Court



                                             JEROME A. HOLMES
                                             Circuit Judge




                                       -5-
