                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 FEB 23 1999
                                      TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 JAMES EDWARD SIMPSON,

           Petitioner-Appellant,
 v.                                                           No. 98-6383
 RON CHAMPION; THE ATTORNEY                             (D.C. No. 97-CV-270-R)
 GENERAL OF THE STATE OF                                      (W.D. Okla.)
 OKLAHOMA,

           Respondents-Appellees.


                                   ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**


       Petitioner James Edward Simpson is currently serving a one-hundred year sentence

of incarceration in Oklahoma state prison as a result of his Oklahoma state

court convictions for sodomy, first degree rape, lewd molestation, and solicitation of a

minor to perform obscene acts. After the Oklahoma Court of Criminal Appeals rejected


       *
          This order and judgment is not binding precedent, except under the doctrines of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)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Petitioner’s direct appeal, Simpson v. State, 876 P.2d 690 (Okla. Crim. App. 1994), he

filed a pro se petition for habeas corpus relief under 28 U.S.C. § 2254 in the federal

district court. The district judge adopted the magistrate judge’s Report and

Recommendation, and denied the petition in its entirety. Petitioner then requested a

certificate of appealability which the district court denied.

       Petitioner now requests that we grant the certificate of appealability and reach the

merits of the appeal. In support of his application, Petitioner contends that (1) the state

trial court committed constitutional error when it failed to conduct a hearing outside the

presence of the jury to determine the reliability of the minor victim’s out of court

statements as required by Oklahoma state law; and (2) his state trial counsel was

ineffective for failing to object to (a) the victim’s out of court statements; (b) evidence of

“other bad acts;” and (c) the introduction of nineteen pornographic magazines.

       A petitioner may appeal the denial of a habeas corpus 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. § 2253(c)(2); United States v.

Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). We have carefully reviewed Petitioner’s

brief on appeal, the magistrate judge’s Report and Recommendation, the district judge’s

order, and the entire record before us including the state court trial transcript. Based upon

our review of the case, we find no merit in Petitioner’s claims and deny his application


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for a certificate of appealability substantially for the reasons set forth in the magistrate

judge’s Report and Recommendation, and the district judge’s order adopting the same.

       CERTIFICATE OF APPEALABILITY DENIED; APPEAL DISMISSED.

                                                   Entered for the Court,



                                                   Bobby R. Baldock
                                                   Circuit Judge




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