                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                   JAN 22 1998
                                      TENTH CIRCUIT
                                                                               PATRICK FISHER
                                                                                        Clerk


 JOHNNY HAMILTON O’BRYAN,
           Petitioner-Appellant,                                No. 97-5090
 v.                                                       (D.C. No. 96-CV-106-B)
 KENNETH KLINGER,                                               (N.D. Okla.)
           Respondent-Appellee.



                                   ORDER AND JUDGMENT*


Before ANDERSON, McKAY, and LUCERO, Circuit Judges.



       After examining Petitioner-Appellant’s brief and the 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); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Petitioner, a state prisoner appearing pro se, appeals the district court’s denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Petitioner claims that a prison



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
disciplinary action withdrawing earned good-time credits followed by a subsequent

criminal conviction for the same behavior violated the doctrine of double jeopardy.

Petitioner also contends that he was denied effective assistance of counsel by the failure

of counsel to discover the double jeopardy violation and the failure of counsel to advise

him of, and assist him with, an appeal of his guilty plea convictions.

       In its Order filed April 7, 1997, denying Petitioner’s writ of habeas corpus, the

district court correctly set forth and properly analyzed the facts and the law. After

Petitioner filed his notice of appeal, the district court issued an order denying him a

certificate of appealability.

       To appeal the denial of habeas corpus relief by the district court, Petitioner must

obtain a certificate of appealability. We may issue a certificate “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). We have carefully reviewed the district court’s order of dismissal,

Petitioner’s brief and application for a certificate of appealability, and the record before

us. We conclude that Petitioner has failed to make the required showing. See United

States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). Consequently, we DENY

Petitioner’s application for a certificate of appealability and DISMISS the appeal.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge

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