                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JIMMIE OLEN STALLCUP,

                Petitioner-Appellant,

    v.                                                   No. 99-6390
                                                   (D.C. No. CIV-97-511-C)
    H. N. SCOTT,                                         (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , PORFILIO , and MURPHY , 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.

         Jimmie Olen Stallcup appeals from an order of the district court denying his

application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.



*
      This order and judgment is not binding precedent, except under the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.
Because Mr. Stallcup filed his federal habeas petition after the effective date of

the Antiterrorism and Effective Death Penalty Act (AEDPA), that Act applies to

this appeal. See Slack v. McDaniel , 120 S. Ct. 1595, 1602 (2000). In a habeas

corpus proceeding in which the detention complained of arises out of process

issued by a state court, an appeal by the applicant for the writ may not proceed

unless a district or a circuit judge issues a certificate of appealability [COA]

pursuant to § 2253(c).   See id. at 1600; Fed. R. App. P. 22(b)(1). “If no express

request for a certificate is filed, the notice of appeal constitutes a request

addressed to the judges of the court of appeals.” Rule 22(b)(2). We treat this

appeal as an application for COA. We deny the application and dismiss the

appeal.

      Mr. Stallcup was sentenced by an Oklahoma state district court to a total of

260 years 1 after conviction on two counts of indecent or lewd acts with a child

under sixteen, three counts of first-degree rape by instrumentation, and two

counts of forcible oral sodomy, all after former conviction of two felonies. His

victims were his daughters, ages six and nine. In his application for a federal writ

of habeas corpus Mr. Stallcup claimed that his constitutional rights were violated

at trial by twenty occurrences of ineffective assistance by his counsel and by


1
       The sentences on five of the counts were to run concurrently after serving
the sentence for one count of first-degree rape by instrumentation. See
Appellant’s App. at 11-12.

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improper remarks made by the state district court judge while instructing the jury

in regard to inadmissible videotaped interviews of his victims. After a thorough

discussion of Mr. Stallcup’s claims, the federal magistrate judge recommended

that the application be denied, and the district court agreed, adopting the

magistrate judge’s report and recommendations and denying the application.

       Although not raised in his brief to this court, when analyzing Mr. Stallcup’s

claims, the magistrate judge applied a standard which authorizes habeas relief

“‘only when the state courts have decided the question by interpreting or applying

the relevant precedent in a manner that reasonable jurists would all agree is

unreasonable.’” Appellant’s App. at 14 (magistrate judge’s Report and

Recommendation at 4), quoting       Roberts v. Ward , No. 98-6066, 1999 WL 162751,

at *7 (10th Cir. Mar. 25, 1999) (unpublished),    cert. denied , 120 S. Ct. 589 (1999),

second petition for cert. filed   , (U.S. Feb. 4, 2000) (No. 99-8054). The Supreme

Court, however, rejected that standard in    Williams v. Taylor , stating that it was an

erroneous “additional overlay.” 120 S. Ct. 1495, 1521 (2000). Instead, an

“objectively unreasonable” standard must be employed that distinguishes an

“unreasonable” application of law from an “incorrect” application of law; i.e., in

order to issue a writ of habeas corpus in regard to a state appellate court’s

application of the correct law to the facts, a federal court must find the state

appellate court’s application of law was not only erroneous or incorrect in its


                                            -3-
independent judgment, but also that the state court’s application of law was

unreasonable.     See id. at 1521-22. Application of the   Williams standard instead of

the one applied by the magistrate judge does not affect the outcome of this

application for a certificate of appealability, however. To determine whether

Mr. Stallcup has made a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), we must examine his application for a certificate

of appealability in light of the decision rendered by the state appellate court.

       The Oklahoma Court of Criminal Appeals (OCCA) applied           Strickland v.

Washington , 466 U.S. 668 (1984), to Mr. Stallcup’s ineffective assistance of

counsel claims.    See Appellant’s App. at 6-8. Other than arguing in a general

manner that the court’s conclusion was simply wrong as demonstrated by

the number of alleged errors of counsel and the number of years to which

Mr. Stallcup was sentenced, Mr. Stallcup has not given any reason why the

court’s application of   Strickland to the facts of his case was unreasonable.

Likewise, he fails to explain why the OCCA’s conclusion that the trial court’s

allegedly prejudicial remarks were not improper because they (1) were valid

“explanatory remarks regarding evidentiary rulings”; (2) “did not comment upon

the guilt or innocence of appellant”; and, even if they could be viewed as

improper, (3) were rendered harmless by appropriate jury instructions,

see Appellant’s App. at 9, is either incorrect or unreasonable. We thus conclude


                                            -4-
that Mr. Stallcup has failed to make a “substantial showing of the denial of

a constitutional right.” § 2253(c)(2). We decline to issue a COA and dismiss

the appeal.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




                                         -5-
