                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 29 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    FRANKLIN C. LEE,

                Petitioner - Appellant,
                                                         No. 01-6421
    v.                                              D.C. No. CIV-01-318-T
                                                      (W.D. Oklahoma)
    RANDY WORKMAN,

                Respondent - Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , BALDOCK , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
      Petitioner Franklin C. Lee seeks a certificate of appealability (COA) from

this court in order to appeal the district court’s order denying relief in his motion

filed pursuant to 28 U.S.C. § 2254. We deny Mr. Lee’s application and dismiss

the appeal.

      Review of Mr. Lee’s claims is governed by the provisions of the

Antiterrorism and Effective Death Penalty Act (AEDPA).        See Wallace v. Ward ,

191 F.3d 1235, 1240 (10th Cir. 1999),    modified on other grounds by   McGregor v.

Gibson , 248 F.3d 946 (10th Cir. 2001). Under AEDPA, Mr. Lee must obtain a

COA before he can proceed on appeal. 28      U.S.C. § 2253(c)(1). To be entitled to

a COA, he must make a “substantial showing of the denial of a constitutional

right.” § 2253(c)(2). He can make this showing by establishing 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.”      Slack v. McDaniel ,

529 U.S. 473, 484 (2000) (quotation omitted).

      Mr. Lee was c onvicted by a jury of first degree felony murder and

sentenced to life imprisonment. The Oklahoma Court of Criminal Appeals denied

relief on direct appeal.

      Mr. Lee then filed this §   2254 petition in federal district court. He alleged

that his constitutional right not to be subjected to double jeopardy had been


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violated when the state trial court granted his motion for a mistrial and then

permitted a retrial. He also alleged that he had received ineffective assistance of

counsel and that the state courts erred in denying his motion for a free transcript.

       The district court denied relief. The court determined that Mr. Lee had

exhausted his state court remedies as to his first claim. However, the court

denied relief on this claim finding that Mr. Lee had not presented clear and

convincing evidence that the state court had erred in determining that a second

trial did not violate his double jeopardy rights. The court also ruled that

Mr. Lee’s second claim was procedurally barred and his third claim did not

amount to a constitutional violation. On appeal, Mr. Lee argues that the district

court erred in its ruling.

       We have reviewed the record and the applicable law and conclude that

Mr. Lee has failed to make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not debate whether his

§ 2254 “petition should have been resolved in a different manner” or whether “the

issues presented were adequate to deserve encouragement to proceed further.”

Slack , 529 U.S. at 484 (quotation omitted). Therefore, we grant appellant’s




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motion to proceed in forma pauperis, deny a COA and DISMISS this appeal.    The

mandate shall issue forthwith.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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