                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 24 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHERMAN J. POWDRILL,

                Petitioner-Appellant,

    v.                                                   No. 01-6220
                                                   (D.C. No. CV-00-1710-T)
    H. N. SCOTT, Warden,                                 (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before MURPHY, McKAY, 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.

         Petitioner Sherman J. Powdrill was convicted in Oklahoma state court of

robbery with a firearm after former conviction of two or more felonies. He was


*
      This order and judgment is not binding precedent, except under the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.
sentenced to twenty-three years in prison. He filed this pro se petition for habeas

relief under 28 U.S.C. § 2254. The magistrate judge reviewed all nine issues and

recommended that relief be denied. The district court reviewed de novo the two

issues raised in petitioner’s objections to the magistrate judge’s report, adopted

the magistrate judge’s recommendation, and denied relief.

      Petitioner appeals. The district court did not act on petitioner’s application

for a certificate of appealability (COA), and it is deemed denied by that court

under this court’s General Order of October 1, 1996. Petitioner has renewed his

application for a COA in this court. To obtain it, he must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He also

moves for leave to proceed in forma pauperis on appeal.

      Petitioner argues that: (1) the evidence was insufficient to sustain his

conviction for robbery with a dangerous weapon because none of the stolen

property was found on him and his codefendant had the gun, and (2) his trial

should have been severed from that of his codefendant.

      We grant a COA on petitioner’s challenge to the sufficiency of the

evidence. “[A]n essential of the due process guaranteed by the Fourteenth

Amendment [is] that no person shall be made to suffer the onus of a criminal

conviction except upon sufficient proof–defined as evidence necessary to

convince a trier of fact beyond a reasonable doubt of the existence of every


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element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). We

review the record to determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 319. We have

carefully reviewed the record. The magistrate judge adequately summarized the

evidence in light of the appropriate legal standard. The magistrate judge’s

summary is supported by the record and that evidence is sufficient to sustain

petitioner’s conviction beyond a reasonable doubt.

      We deny a COA on petitioner’s severance issue.

      Petitioner’s application to proceed on appeal in forma pauperis is granted.

His application for a certificate of appealability is granted only on his challenge

to the sufficiency of the evidence, and the judgment of the district court is

AFFIRMED. In all other respects, the appeal is DISMISSED. The mandate shall

issue forthwith.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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