                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 10, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 BENJAMINE MICHAEL
 THOMPSON,

          Petitioner-Appellant,

 v.                                                     No. 10-6195
                                                (D.C. No. 5:09-CV-00878-M)
 GREG WILLIAMS, Warden,                                (W.D. Okla.)

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      An Oklahoma jury convicted Benjamine Michael Thompson of distributing

a controlled dangerous substance and conspiracy to distribute the same, resulting

in two consecutive 100 year prison sentences. The Oklahoma Court of Criminal

Appeals upheld Mr. Thompson’s conviction and sentence and, later, affirmed the

trial court’s denial of collateral relief. Mr. Thompson then filed a petition for

relief under 28 U.S.C. § 2254, which the district court denied, a result which he

now seeks to appeal.


      *
        This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Before he can appeal the denial of his § 2254 petition, however, Mr.

Thompson must obtain a certificate of appealability (“COA”) which we may grant

only if he makes a “substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this showing, Mr. Thompson 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). Our inquiry

does not require a “full consideration of the factual or legal bases adduced in

support of the [applicant’s] claims,” but, rather, “an overview of the claims . . .

and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). Because Mr. Thompson is a pro se litigant, we construe his pleadings

and other papers liberally.

      Mr. Thompson presses a total of twenty-three claims in his application for a

COA. The first twenty of these claims he presented to the district court; the three

additional claims allege the district court erred by (1) denying an evidentiary

hearing; (2) refusing to provide a transcript of his trial at government expense;

and (3) denying his request for appointment of counsel.

      As to the twenty claims previously considered by the district court, after

our own independent review, we conclude no reasonable jurist could doubt the

correctness of the district court’s disposition. The magistrate judge carefully

                                         -2-
considered each claim in turn and summarized his recommendations in a thirty-

one page opinion adopted by the district court after consideration of Mr.

Thompson’s objections. For substantially the same reasons given by the

magistrate judge and the district court, we deny Mr. Thompson’s application for a

COA to pursue those claims numbered one through twenty in his brief.

      We likewise deny a COA for the three claims Mr. Thompson raises in

relation to the district court proceedings. The first claim, based on the supposed

denial of an evidentiary hearing, fails for the simple reason that Mr. Thompson

did not request such a hearing from the district court, let alone demonstrate either

of the required bases for a hearing. See 28 U.S.C. § 2254(e)(2). The second

claim, based on the denial of a free transcript, fails because to obtain one Mr.

Thompson must first “demonstrate that his [petition] is not frivolous,” and this he

has not done. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992). Finally,

the third claim, based on denial of appointed counsel, fails because there is no

constitutional right to the assistance of counsel in pursuing § 2254 relief, see

Swazo v. Wyo. Dep’t of Corr., 23 F.3d 332, 333 (10th Cir. 1994), and the district

court was well within its discretion to deny counsel in light of Mr. Thompson’s

failure to substantiate either his indigency or how the interests of justice would be

served by counsel, see Engberg v. Wyoming, 265 F.3d 1109, 1121-22 (10th Cir.

2001) (“The decision to appoint counsel [in § 2254 proceedings] is left to the

sound discretion of the district court.”).

                                             -3-
The application for a COA is denied and this appeal is dismissed.



                               ENTERED FOR THE COURT



                               Neil M. Gorsuch
                               Circuit Judge




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