                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 10 1997
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


PETER JAMES ROBINSON,

          Petitioner-Appellant,

v.                                                     No. 97-6232
                                                (W. District of Oklahoma)
RON WARD; THE ATTORNEY                          (D.C. No. CIV-96-1851-C)
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondents-Appellee.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined 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.




      *
       This order and judgment is not binding precedent, except under the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.
      Peter Robinson, appearing pro se and in forma pauperis, appeals the district

court’s denial of his petition for a writ of habeas corpus filed pursuant to 28

U.S.C. § 2254. In his habeas corpus petition, Robinson challenges two Oklahoma

state convictions resulting from pleas of guilty to escape from a state penitentiary

and possession of a firearm. Robinson alleges that his sentences for those crimes

were improperly enhanced by a void former conviction and that the sentences he

received were thus greater than that allowed by law.

      The district court referred Robinson’s petition to a magistrate judge for

initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B). In a thorough

and well-researched Report and Recommendation, the magistrate judge

recommended that Robinson’s petition be dismissed on the grounds of procedural

bar. The magistrate judge noted that the state courts had denied Robinson’s

application for post-conviction relief on the grounds that Robinson should have

raised his objections to the sentence enhancement on direct appeal. The

magistrate judge moved on to analyze the state courts’ application of procedural

bar, finding that application to be both “independent” and “adequate.” Finally,

the magistrate judge conducted an extensive analysis of Robinson’s claim of

ineffective assistance of counsel and ultimately concluded that even if Robinson’s

claims were true, they did not amount to either cause or prejudice sufficient to

overcome the procedural bar. After Robinson objected to the Report and


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Recommendation, the district court conducted a de novo review of the record and

adopted the Report and Recommendation. 1

      The case is before this court on Robinson’s application for a certificate of

appealability. 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a

certificate of appealability, an appeal may not be taken to the court of appeals

from [] the final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court . . . .”). To be entitled

to a certificate of appealability, Robinson must make “a substantial showing of

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

such a showing by demonstrating the issues raised are debatable among jurists, a

court could resolve the issues differently, or that the questions presented deserve

further proceedings. Barefoot v. Estelle, 463 U.S. 880, 892-893 & n.4. (1983);

Lennox v. Evans, 87 F.3d 431, 433-34 (10th Cir. 1996), cert. denied, 117 S. Ct.

749 (1997).




      1
       In his appellate brief, Robinson contends that this court must reverse and
remand because the district court failed to conduct a de novo review of the Report
and Recommendation. This assertion is clearly without merit. In adopting the
Report and Recommendation, the district court stated as follows: “Accordingly,
having reviewed all matters of record de novo, the Court finds that the Report and
Recommendation of the Magistrate Judge is correct in all particulars and is hereby
affirmed.”

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      This court has thoroughly reviewed Robinson’s appellate brief and

application for a certificate of appealability, the magistrate judge’s excellent

Report and Recommendation, the district court’s Order, and the entire record on

appeal. Based on that review, we conclude that Robinson has not made a

substantial showing of the denial of an important federal right for the reasons set

forth in the magistrate judge’s Report and Recommendation. Accordingly, this

court DENIES Robinson’s application for a certificate of appealability and

DISMISSES this appeal. 28 U.S.C. § 2253(c)(2).

                                                ENTERED FOR THE COURT:



                                                Michael R. Murphy
                                                Circuit Judge




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