                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 21 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MANFORD LEE COOPER,

                Petitioner-Appellant,

    v.                                                   No. 99-3180
                                                    (D.C. No. 96-CV-3075)
    MICHAEL NELSON; CARLA J.                               (D. Kan.)
    STOVALL, Attorney General for the
    State of Kansas,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.           **




         Petitioner Manford Lee Cooper, proceeding pro se, requests a certificate of

probable cause to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas




*
      This order and judgment is not binding precedent, except under the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 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.
corpus petition.   1
                       See 28 U.S.C. § 2253 (1994) (providing that an appeal may not

be taken from the denial of a pre-AEDPA § 2254 habeas corpus petition unless

the petitioner first obtains a certificate of probable cause). Because we determine

that Mr. Cooper has not made a “substantial showing of the denial of [a] federal

right,” we deny Mr. Cooper’s request for a certificate of probable cause and

dismiss his appeal.      Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (quotation

omitted); see also Moore v. Reynolds      , 153 F.3d 1086, 1095 (10th Cir. 1998),    cert.

denied, 119 S. Ct. 1266 (1999).

       In January 1988, Mr. Cooper was convicted of first degree murder and was

subsequently sentenced to three consecutive life sentences. The Kansas Supreme

Court affirmed Mr. Cooper’s conviction on appeal. His motion for post-

conviction relief was denied by the trial court and affirmed on appeal.

       In his § 2254 petition in federal court, Mr. Cooper asserted that (1) the trial

court erred in denying a continuance after a co-defendant entered into a guilty

plea agreement a few days before trial; (2) his appellate counsel rendered

ineffective assistance; (3) he was denied a fair trial due to prosecutorial


1
       Mr. Cooper filed his habeas petition in February 1996, before enactment of
the Antiterriorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore,
AEDPA’s certificate of appealability provision does not apply.       See Lindh v.
Murphy , 521 U.S. 320, 336 (1997). In order to appeal the denial of his pre-
AEDPA habeas corpus petition, however, Mr. Cooper must obtain a certificate of
probable cause under former 28 U.S.C. § 2253.       See Jackson v. Shanks , 143 F.3d
1313, 1316 n.1 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998).

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misconduct; (4) the jury instructions were improper; and (5) the trial court erred

in failing to conduct an evidentiary hearing on his post-conviction relief motion.

      In a lengthy and thorough memorandum and order, the district court

considered, discussed, and disposed of each of Mr. Cooper’s claims. The district

court determined that Mr. Cooper made no showing of prejudice or arbitrary

action in the trial court’s denial of his request for a continuance. Mr. Cooper

asserted that his appellate counsel was ineffective in failing to challenge the

errors of his trial counsel on appeal. In disposing of this claim, the district court

considered the alleged errors of trial counsel, determining that Mr. Cooper’s trial

counsel had “vigorously defended petitioner against the considerable, albeit

circumstantial, evidence against him,” Dist. Ct. Mem. and Order at 15, and that

counsel’s performance did not fall below an objective standard of reasonableness.

See Strickland v. Washington , 466 U.S. 668, 688 (1984). The court determined

that several of Mr. Cooper’s claims of prosecutorial misconduct were

procedurally barred, and he failed to show cause and prejudice for the default or

fundamental miscarriage of justice if the claims were not considered.     See

Coleman v. Thompson , 501 U.S. 722, 750 (1991).       Finding Mr. Cooper’s claim

that the prosecutor made inflammatory and improper statements in closing

arguments properly before the court on habeas corpus, the court considered the

claim and found no basis for relief. Considering Mr. Cooper’s claim that he was


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denied due process by two of the trial court’s jury instructions, the district court

concluded that there was no showing that the alleged errors were so

fundamentally unfair as to deny Mr. Cooper a fair trial.     See Tyler v. Nelson , 163

F.3d 1222, 1227 (10th Cir. 1999). Finally, the court concluded that Mr. Cooper’s

claim of error in the trial court’s denial of an evidentiary hearing on his post-

conviction relief motion lacked constitutional grounds and was not appropriate for

habeas corpus relief.

       Following our review of Mr. Cooper’s application for certificate of

probable cause, opening brief, supplemental brief, and the district court’s order,

we conclude that Mr. Cooper has not made a substantial showing of the denial of

a federal right. Therefore, Mr. Cooper’s application for a certificate of probable

cause is DENIED for substantially the same reasons stated by the district court in

its May 21, 1999 memorandum and order. Mr. Cooper’s motion to supplement his

opening brief is GRANTED, and his appeal is DISMISSED. The mandate shall

issue forthwith.

                                          ENTERED FOR THE COURT



                                          Carlos F. Lucero
                                          Circuit Judge




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