                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 28 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOE ALLEN JOHNSON,

                Petitioner-Appellant,

    v.                                                  No. 96-5025
                                                    (D.C. No. 93-C-312-B)
    LARRY A. FIELDS, Director of the                     (N.D. Okla.)
    Department of Corrections;
    ATTORNEY GENERAL OF THE
    STATE OF OKLAHOMA,

                Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before PORFILIO, BALDOCK, and HENRY, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Joe Allen Johnson appeals from the district court’s denial of his petition for

writ of habeas corpus under 28 U.S.C. § 2254. Mr. Johnson was represented by

counsel in the district court, but proceeds pro se on appeal. Mr. Johnson was

convicted of murder in an Oklahoma court in 1962 and was given a life sentence.

His conviction and sentence were upheld on appeal. Johnson v. State, 386 P.2d

336 (Okla. Crim. App. 1963). In denying the petition, the district court did not

hold an evidentiary hearing nor make any factual findings. Our review of the

district court’s decision is de novo. Harvey v. Shillinger, 76 F.3d 1528, 1532

(10th Cir.), cert. denied, 117 S. Ct. 253 (1996).

      On appeal, Mr. Johnson raises the same issues he raised in the district

court: (1) that there was an improper variance between the charge of

premeditated murder contained in the information and the charge of felony murder

on which he was tried and convicted; (2) that admissions he made after he had

been shot and while he was in the hospital under medication should not have been

admitted into evidence; (3) that his counsel was constitutionally ineffective for

failing to raise or adequately argue the first two issues and for failing to develop a

misdemeanor-manslaughter theory of defense; (4) that the evidence was

insufficient to convict him of murder; (5) that the trial court’s failure to sustain

his demurrer to the evidence denied him due process; and (6) that the trial court

improperly instructed the jury on premeditated murder. He has also filed a


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motion to supplement the record with evidence relating to the medication he

received in the hospital. Because the district court record already contains that

evidence, which was attached to Mr. Johnson’s memorandum in support of an

evidentiary hearing, the motion to supplement is DENIED as unnecessary.

      We have fully considered Mr. Johnson’s arguments and have reviewed the

entire record, and we conclude that the district court did not make any reversible

error. Therefore, the judgment of the United States District Court for the

Northern District of Oklahoma is AFFIRMED. The mandate shall issue

forthwith.



                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




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