                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES C. GODFREY,

                Petitioner-Appellant,

    v.                                                   No. 00-4122
                                                     (D.C. No. 99-CV-99)
    EARLE HOBBY, Warden, C.U.C.F.,                         (D. Utah)

                Respondent-Appellee.


                            ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and LUCERO , Circuit Judges.



         Petitioner James C. Godfrey, a prisoner of the State of Utah appearing

pro se, was convicted of one count of aggravated kidnaping and one count of

aggravated sexual abuse of a child. He appeals from the denial of his petition for

habeas corpus filed under 28 U.S.C. § 2254. Because the district court denied his

application for a certificate of appealability (“COA”), he has filed an application



*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
for COA in this Court.   See 28 U.S.C. § 2253(c)(1). “A certificate of

appealability may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

      The magistrate judge filed a Report and Recommendation on April 26, 2000

recommending that habeas relief be denied. The district court adopted the

magistrate judge’s recommendation in an order filed June 16, 2000. Petitioner

argues on appeal that: (1) he was arrested without probable cause; (2) he did not

have a full and fair opportunity to litigate his Fourth Amendment claim in the

state courts; (3) the trial court admitted evidence of prior bad acts in violation of

the Utah rules of evidence; (4) the trial court admitted evidence of prior bad acts

in violation of his Fourteenth Amendment right to due process of law; (5) he

received ineffective assistance of appellate counsel in violation of the Sixth

Amendment; (6) the magistrate judge erred by concluding that his claim of

ineffective assistance of trial counsel was not raised in his petition for certiorari

to the Utah Supreme Court and recommending that it be held procedurally barred;

(7) the magistrate judge erred by recommending that his claim of ineffective

assistance of trial counsel was without merit; (8) the compulsory process clause of

the Sixth Amendment was violated by trial and appellate counsel’s failure to

obtain and present impeachment and exonerating testimony to counter perjured

prosecution testimony; (9) the magistrate judge erred by failing to rule on his


                                          -2-
pro se “Motion for Further Transcripts and Proceedings” and his “‘Franks’

Motion for an Evidentiary Hearing”     1
                                           ; and (10) the district court erred by failing to

make a de novo determination of the record.

       Because petitioner is pro se, we construe his pleadings liberally.        Haines v.

Kerner , 404 U.S. 519, 520–21 (1972) (per curiam). The standard of review we

apply to petitioner’s claims of error depends on whether the state courts addressed

them on their merits.   Hale v. Gibson , 227 F.3d 1298, 1309 (10th Cir. 2000).

“If the state courts have not heard [a] claim on its merits, we review the district

court’s legal conclusions de novo and its factual findings, if any, for clear error.”

Id. “If the state courts have addressed [a] claim on its merits, we review the state

court ruling under the standard enunciated under 28 U.S.C. § 2254.”           Id.

       The state courts addressed petitioner’s first and third claims of error on

their merits. Therefore, we review them under the same standard the magistrate

judge used.   See 28 U.S.C. § 2254(d) (providing for habeas relief from the

judgment of a state court only when the adjudication of a claim involved an

“unreasonable application of clearly established Federal law” or was “based on an

unreasonable determination of the facts in light of the evidence presented”).

Based on our review of the parties’ materials and the record on appeal, we affirm




1
       See Franks v. Delaware , 438 U.S. 154 (1978).

                                              -3-
on these issues for substantially the reasons stated by the magistrate judge in his

thorough Report and Recommendation and adopted by the district court.

         We review petitioner’s second, fourth, fifth, sixth, seventh, and eighth

claims de novo. Again, having conducted an independent examination of the

record, we affirm on these issues for substantially the reasons given by the

magistrate judge in his Report and Recommendation and adopted by the district

court.

         Finally, we turn to petitioner’s ninth and tenth claims. The magistrate

judge denied petitioner’s pro se “Motion for Further Transcripts and Proceedings”

in an order filed March 6, 2000. (R. Doc. 14.) The magistrate judge denied

petitioner’s “‘Franks’ Motion for an Evidentiary Hearing” in an order filed on

May 3, 2000. (R. Doc. 16.) Therefore, petitioner’s claim that the magistrate

judge failed to rule on these motions is without merit.

         The district court did not specifically state that its review was de novo.

However, “[w]e assume that the district court performed its review function

properly in the absence of evidence to the contrary.”     Green v. Branson , 108 F.3d

1296, 1305 (10th Cir. 1997). Petitioner offers no evidence to support his

argument that the district court failed to conduct the proper de novo review. We

therefore reject this claim of error.




                                            -4-
Petitioner’s application for COA is denied, and the appeal is DISMISSED.

                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




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