                                                                                   F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                    JUN 16 2000
                                      TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 BOBBY EARL JONES,

           Petitioner-Appellant,
 v.                                                             No. 00-5008
 STEVE HARGETT,                                          (D.C. No. 97-CV-1011-K)
                                                               (N.D. Okla.)
           Respondent-Appellee.




                                   ORDER AND JUDGMENT*


Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**


       Petitioner Bobby Earl Jones, proceeding pro se, filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254. The district court denied the petition and denied

Petitioner’s application for a certificate of appealability, concluding that Petitioner failed

to make a substantial showing of the denial of a constitutional right, see 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          This order and judgment is not binding precedent, except under the doctrines of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 in 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.
§ 2253(c)(2). We deny Petitioner’s application for a certificate of appealability as well

and dismiss his appeal.

       In 1995, a jury convicted Petitioner of robbery by force, after former convictions

of two or more felonies, in the District Court of Tulsa County, Oklahoma. The trial court

sentenced him to 35 years imprisonment. On direct appeal, the Oklahoma Court of

Criminal Appeals (OCCA) summarily affirmed Petitioner’s conviction and sentence.

Jones v. State, No. F-95-532 (Okla. Crim. App. Apr. 19, 1996) (unpublished). Petitioner

subsequently filed a petition for state post-conviction relief in state district court. The

state court denied relief and the OCCA affirmed. Jones v. State, No. PC 97-1250 (Okla.

Crim. App. Oct. 8, 1997) (unpublished).

       Petitioner filed a § 2254 petition in federal district court raising the following nine

claims: (1) the trial court lacked subject matter jurisdiction; (2) ineffective assistance of

counsel during preliminary proceedings; (3) ineffective assistance of trial counsel; (4)

prosecutorial misconduct; (5) no probable cause to bind over at preliminary hearing for

trial; (6) the trial court erred by not granting a mistrial when the prosecutor used

prejudicial evidence of other crimes; (7) ineffective assistance of counsel at the

preliminary hearing; (8) ineffective assistance of appellate counsel; and (9) admission of

an in-court identification of Petitioner, which was tainted by a suggestive pretrial

identification procedure, violated Petitioner’s due process rights.

       The district court denied claims (6) and (9) because Petitioner raised those claims


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on direct appeal and the state court’s adjudication did not result “in a decision that was

clearly contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);

see Williams v. Taylor, 120 S. Ct. 1495, 1516 (2000). Similarly, the district court denied

claims (1) and (8), which Petitioner raised in his state post-conviction proceeding.

       The district court denied the claims (2)–(5) and (7), which Petitioner could have

but failed to raise on direct appeal, as procedurally barred on an independent and

adequate state ground. See English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998). The

record shows different counsel represented Petitioner at the preliminary hearings, at trial,

and on appeal. Further, the claims may fairly be resolved on the record without additional

fact finding. See id. at 1264. The district court concluded Petitioner failed to establish

cause and prejudice or a fundamental miscarriage of justice to overcome the procedural

bar. See Coleman v. Thompson, 501 U.S. 722, 750 (1991).

       A petitioner may appeal the denial of a § 2254 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. at § 2253(c)(2).

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

appealability, his brief, and the district court’s order, and the entire record before us. We

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


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right substantially for the reasons set forth in the district court’s order. Accordingly, we

deny his request for a certificate of appealability and dismiss the appeal.

       MOTION DENIED; APPEAL DISMISSED.

                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




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