                                                                             F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 12 1998
                                    TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 GREGORY ROCSHON LEWIS,

          Petitioner - Appellant,
 v.                                                      No. 97-6380
                                                     (D.C. No. 97-CV-341)
 H. N. “SONNY” SCOTT,                                    (W.D. Okla.)

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


      Mr. Lewis seeks to appeal from the denial of his habeas petition, 28 U.S.C.

§ 2254. Upon recommendation of the magistrate judge, the district court denied

the petition, in forma pauperis status for an appeal, and a certificate of

appealability. We have reviewed the record, grant Mr. Lewis’s motion for leave

to proceed on appeal without prepayment of costs or fees, but conclude that he


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
has not made “a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), and therefore deny his application for a certificate of

appealability. The predicate of Mr. Lewis’s claims, ineffective assistance of

counsel, was considered on the merits by the Oklahoma Court of Criminal

Appeals, R. doc. 17, ex. A at 2, so the claim is not procedurally barred, see Ylst

v. Nunnemaker, 501 U.S. 797, 801 (1991), and there is no need to consider the

issue of procedural bar in the context of Oklahoma’s direct appeal procedure, see

English v. Cody, Nos. 97-5004 & 97-5132, 1998 WL 348019 (10th Cir. June 30,

1998). As to the merits, we are in substantial agreement with the Supplemental

Report and Recommendation of the magistrate judge, see R. doc. 30 at 6-17.

      APPEAL DISMISSED.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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