                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 1 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    SEBRIN CHATMAN,

                Petitioner-Appellant,

    v.                                                    No. 00-7042
                                                    (D.C. No. 99-CV-111-P)
    JAMES SAFFLE; THE OKLAHOMA                            (E.D. Okla.)
    DEPARTMENT OF CORRECTIONS;
    THE STATE OF OKLAHOMA,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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, appearing   pro se , asks this court to grant him a certificate of

appealability, so that he can appeal the district court’s denial of his petition for

writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2254. We will issue

a certificate of appealability only if petitioner “has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)(1). Where, as here,

the district court rejected the constitutional claims on the merits, “petitioner must

demonstrate that reasonable jurists would find [it’s] assessment of the

constitutional claims debatable or wrong.”         Slack v. McDaniel , 529 U.S. 473, 484

(2000). Because we find the district court’s assessment of petitioner’s claims

neither debatable nor wrong, we deny his application for a certificate of

appealability and DISMISS the appeal.    1



                                                          Entered for the Court


1
        Although he does make passing mention of the claims he argued before the
district court (sufficiency of the evidence and ineffective assistance of both trial
and appellate counsel), petitioner’s only substantive argument on appeal relates to
the trial court’s refusal to instruct the jury on the crime of Assault and Battery
With a Dangerous Weapon. He did not raise this argument in his habeas petition
before the district court, and the district court declined to address the issue when
petitioner raised it in his supplemental request for rehearing. Consequently, the
issue would not be considered on appeal.      See Walker v. Mather (In re Walker) ,
959 F.2d 894, 896 (10th Cir. 1992) . We note, however, as did the Oklahoma
Court of Criminal Appeals when petitioner raised this issue on direct appeal, that
Assault and Battery With a Dangerous Weapon is not a lesser included offense of
First Degree Murder, and the record shows that the jury was instructed on lesser
included offenses. See Smith v. State , 727 P.2d 1366, 1371 (Okla. Crim. App.
1986). Contrary to petitioner’s assertion,    Smith does not conflict with Jackson v.
State , 964 P.2d 875 (Okla. Crim. App. 1998).

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      Wade Brorby
      Circuit Judge




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