                                                                         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

 THOMAS E. GAITHER,

               Petitioner - Appellant,

          v.                                            No. 01-6342
                                                 (D. C. No. 00-CV-1574-W)
 JAMES SAFFLE,                                          (W.D. Okla.)

               Respondent - Appellee.


                           ORDER AND JUDGMENT *


Before TACHA, Chief Judge, EBEL, and LUCERO, Circuit Judges.


      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)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

      Appellant Gaither appeals pro se from an order of the district court

denying appellant’s petition for a writ of habeas corpus brought pursuant to 28

U.S.C. § 2254. The district court declined to grant a certificate of appealability.


      *
       This order and judgment is not binding precedent, except under the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.
Thus, appellant on this appeal seeks a certificate of appealability and review of

the denial of his federal habeas corpus petition. On appeal, Mr. Gaither alleges

that the magistrate judge and the district court failed to provide him with an

evidentiary hearing to develop the actual basis of his claims. He further raises on

appeal the issues that were before the district court. He alleges ineffective

assistance of counsel in the state courts, a lack of subject matter jurisdiction in

the trial court to impose sentence, an excessive sentence, and an error in the

failure to declare a mistrial after the prosecutor referred to an outstanding arrest

warrant during cross-examination of a defense witness. In a lengthy report, the

magistrate judge recommended that the petition be denied, in part as procedurally

barred and in part on the merits. After consideration of Mr. Gaither’s objections,

the district court adopted the report and recommendation of the magistrate judge

and denied the petition.

      We construe pro se petitioner’s filings, including the motion to vacate and

remand, liberally as we are required to do under Haines v. Kerner, 404 U.S. 519,

520-21 (1972), and find that Mr. Gaither has failed to meet the statutory

requirements under 28 U.S.C. § 2254.

      To be entitled to a COA, Mr. Gaither must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this

showing by establishing that “reasonable jurists could debate whether (or, for


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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).

      We may grant habeas relief only if the state court entered a judgment that

      (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).

      We agree with the district court that in this case appellant has failed to

show that jurists of reason would debate whether the district court was correct in

its ruling. We, therefore, deny the certificate of appealability, deny the motion to

vacate and remand, and dismiss the appeal. The motion to proceed in forma

pauperis is granted. Dismissed.

                                       ENTERED FOR THE COURT,



                                       Deanell Reece Tacha
                                       Chief Circuit Judge




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