                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   DEC 7 1999
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 ROCKY J. ESLINGER,

           Petitioner-Appellant,
 v.                                                           No. 99-6203
 KEN KLINGER,                                            (D.C. No. 97-CV-1938)
                                                              (W.D. Okla.)
           Respondent-Appellee.


                                   ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       Petitioner Rocky Eslinger pled guilty in Oklahoma state court to multiple

racketeering charges and harboring a fugitive, and was sentenced to thirty years

imprisonment. Petitioner did not move to withdraw his guilty pleas and did not perfect a

direct criminal appeal. Instead, he unsuccessfully sought post-conviction relief in state

court. Thereafter, Petitioner filed a petition for a writ of habeas corpus under 28 U.S.C. §


       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         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)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2254 in federal district court raising two claims: (1) his November 2005 initial parole

hearing date violated both the due process and ex post facto clauses of the United States

Constitution; and (2) a prior felony conviction used to enhance his sentence was invalid

because the prior conviction was obtained through an involuntary guilty plea. In a

thorough report and recommendation, a magistrate judge recommended denial of the

petition. The district court subsequently adopted the report and recommendation and

denied Petitioner a certificate of appealability. See 28 U.S.C. § 2253(c). His renewed

application is before us.

       A petitioner may appeal the denial of a habeas corpus petition only if a “circuit

justice or judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A

certificate of appealability “may issue . . . only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2); United States v.

Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

       We have thoroughly reviewed Petitioner’s application for a certificate of

appealability, his brief, the magistrate judge’s report and recommendation, the district

court’s order adopting that report and recommendation, and the entire record before us.

We conclude that Petitioner has failed to make a substantial showing of the denial of a

constitutional right substantially for the reasons set forth in the magistrate judge’s report

and recommendation. Accordingly, we deny Petitioner’s application for a certificate of

appealability and dismiss the appeal.


                                               2
CERTIFICATE OF APPEALABILTY DENIED; APPEAL DISMISSED.

                        Entered for the Court


                        Bobby R. Baldock
                        Circuit Judge




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