                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 9 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    FRED ALAN MORGAN,

                Petitioner-Appellant,

    v.                                                   No. 97-6338
                                                   (D.C. No. CIV-97-271-T)
    H.N. “SONNY” SCOTT, Warden,                          (W.D. Okla.)

                Respondent-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY, McKAY, and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner seeks a certificate of appealability,   see 28 U.S.C. § 2253(c), that

would enable him to appeal the district court’s denial of habeas relief,      see id.

§ 2254, from his Oklahoma conviction for first degree manslaughter. Issuance of

a certificate of appealability is appropriate only if petitioner makes a substantial

showing of the denial of a constitutional right.      See id. § 2253(c)(2).

       As grounds for habeas relief, petitioner argues that there was insufficient

evidence to support his conviction, his life sentence was excessive, and the trial

court erred in admitting into evidence a .25 caliber shell casing without adequate

foundation and in refusing to instruct the jury on excusable homicide. We DENY

the certificate of appealability for substantially the reasons stated in the

magistrate judge’s report and recommendation dated June 30, 1997, and the

district court’s September 24, 1997 order adopting the magistrate judge’s

recommendation, and we DISMISS this appeal.

       The mandate shall issue forthwith.



                                                          Entered for the Court



                                                          Mary Beck Briscoe
                                                          Circuit Judge




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