                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 27 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JORGE ANTONIO CHAVEZ
    GONZALES, a/k/a JORGE
    ANTONIO CHAVEZ,

                Petitioner-Appellant,

    v.                                                    No. 00-6336
                                                    (D.C. No. 99-CV-1805-R)
    THE STATE OF OKLAHOMA;                                (W.D. Okla.)
    JAMES L. SAFFLE, Director of the
    Oklahoma Department of Corrections,

                Respondents-Appellees.


                                ORDER AND JUDGMENT         *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



         After examining petitioner’s brief and the 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      This order and judgment is not binding precedent, except under the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 Jorge Antonio Chavez Gonzales, also known as Jorge Antonio

Chavez, an Oklahoma state prisoner convicted by a jury of assault and battery

with a dangerous weapon, seeks a certificate of appealability (COA) to challenge

the district court’s order adopting the magistrate judge’s recommendation   1
                                                                                to

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

See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA issued). He has also

requested leave to proceed on appeal without prepayment of fees. That request is

granted. See McIntosh v. United States Parole Comm’n        , 115 F.3d 809, 812-13

(10th Cir. 1997) (stating leave to proceed in forma pauperis requires financial

inability to pay and showing of nonfrivolous argument to support claims).

Upon consideration of the issues raised, we deny issuance of a COA and

dismiss the appeal.

      The parties are familiar with the underlying facts; therefore, we do not

repeat them. On appeal, petitioner argues he is entitled to habeas relief because

his trial attorney provided constitutionally ineffective assistance of counsel for

failing to (1) obtain and present the testimony of Jessie Rios that the victim

admitted that the shooting was an accident; (2) memorialize the victim’s

statement to defense counsel that the shooting was an accident, thus preventing



1
      The case was referred to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B).

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him from using the statement to impeach the victim; (3) present evidence of

a laboratory report, an emergency room report, and the physical evidence of the

victim’s dusty pants. According to Mr. Gonzales, the laboratory and emergency

room reports were necessary to prove that the victim had ingested cocaine and

cannabis prior to the shooting. The pants would show that the victim had fallen,

contrary to her testimony that she had not. Mr. Gonzales has abandoned on

appeal the remaining issues raised to the district court.

      This case is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). Before a COA will issue, petitioner must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, he

must demonstrate “that reasonable jurists could debate whether (or, for that matter

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted).

      We have carefully reviewed petitioner’s brief and the appellate record. For

substantially the same reasons underlying the magistrate judge’s July 27, 2000

report and recommendation and the district court’s September 15, 2000 order,

we conclude that petitioner “has failed to raise issues that are debatable among

jurists, or that a court could resolve the issues differently, or that the questions




                                           -3-
deserve further proceedings.”   United States v. Sistrunk , 111 F.3d 91, 91

(10th Cir. 1997).

      The motion for leave to proceed in forma pauperis is granted. The

application for issuance of a COA is denied. Appeal DISMISSED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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