                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 24 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    WILBERT L. NUBINE,

                Petitioner-Appellant,

    v.                                                   No. 98-6418
                                                     (D.C. No. 97-CV-146)
    TOM C. MARTIN,                                       (W.D. Okla.)

                Respondent-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , KELLY , 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)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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 Wilbert L. Nubine, proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. On de novo review, the district

court adopted the magistrate judge’s recommendation to deny the petition.

Petitioner has failed to make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, we deny issuance of a

certificate of appealability and dismiss this appeal.

      Petitioner was convicted by an Oklahoma state jury of first degree murder.

He was sentenced to life in prison. The parties are familiar with the underlying

facts; we do not repeat them here.

      On appeal, petitioner argues that the following errors deprived him of his

constitutional rights: (1) prosecutorial misconduct during closing argument at his

state court trial, (2) ineffective assistance of trial and appellate counsel, and

(3) the prosecution’s failure to reveal the identity of a witness who heard someone

else confess to the killing. Petitioner also complains that the federal district court

refused to permit discovery.

      The magistrate judge denied petitioner’s discovery requests because he did

not establish “good cause” for discovery, as required by Rule 6(a) of the Rules

Governing Section 2254 cases.     See Bracy v. Gramley , 520 U.S. 899, 908-09

(1997) (“good cause” for discovery established “where specific allegations before


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the court show reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to relief”) (quotation

omitted). We find no abuse of discretion in the district court’s denial of

petitioner’s discovery requests.   See LaFevers v. Gibson , No. 98-6302, 1999 WL

394508, at *17 (10th Cir. June 16, 1999) (discovery rulings on “good cause” in

habeas cases reviewed for abuse of discretion).

       The underlying habeas petition was filed after enactment of the

Antiterrorism and Effective Death Penalty Act of 1996. Pursuant to the

applicable version of 28 U.S.C. § 2254,

              a state prisoner will be entitled to federal habeas corpus relief
       only if he can establish that a claim adjudicated by the state courts
       “resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States,” or “resulted
       in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court
       proceeding.” Further, “a determination of a factual issue made by a
       State court shall be presumed to be correct.” That presumption of
       correctness is rebuttable only “by clear and convincing evidence.”

Boyd v. Ward , 179 F.3d 904, 911-12 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d) & (e)(1)).

       We have carefully reviewed petitioner’s appellate brief and appendix, the

magistrate judge’s report and recommendation, the district court’s order, and the

entire record on appeal. For substantially the reasons stated in the magistrate judge’s

July 31, 1998 report and recommendation, and the district court’s September 24,

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1998 order, we determine that petitioner has not made a substantial showing of the

denial of a constitutional right and is not entitled to a certificate of appealability.

See 28 U.S.C. § 2253(c).

      The application for a certificate of appealability is DENIED. Petitioner’s

motions to supplement the record on appeal are DENIED.                This appeal is

DISMISSED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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