                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 3 2004
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                Clerk


    JOHN T. WEBSTER,

                Petitioner-Appellant,

    v.                                                  No. 02-6265
                                                  (D.C. No. 01-CV-1125-M)
    RANDY WORKMAN, Warden,                              (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT           *




Before SEYMOUR and ANDERSON , Circuit Judges, and            KANE , ** Senior
District Judge.


         Petitioner John T. Webster, who is represented by counsel, appeals from the

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




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
denying his 28 U.S.C. § 2254 habeas petition. Our jurisdiction arises under

28 U.S.C. § 1291, and we affirm.

       On July 21, 1995, five-year-old Tristien Hilmes died as a result of blunt

force trauma to his head. Tristien lived with his mother and his stepfather,

Mr. Webster. A jury convicted Mr. Webster of first degree murder (Count I) and

first degree rape (Count II) in the District Court of Oklahoma County. He was

sentenced to life imprisonment without the possibility of parole on Count I, and to

one hundred years’ imprisonment on Count II. His convictions and sentences

were affirmed on direct appeal to the Oklahoma Court of Criminal Appeals.

       After exhausting all of his state remedies, Mr. Webster timely filed his

federal § 2254 habeas petition. In it he raised the same issues he raised in his

direct appeal, and added several additional grounds for relief. Mr. Webster’s

petition was referred to a magistrate judge who, after thoroughly considering each

of Mr. Webster’s fourteen claims, recommended habeas relief be denied. The

district court adopted the magistrate judge’s report and recommendation and

denied Mr. Webster’s habeas petition. This appeal followed.

       On appeal, Mr. Webster raises four issues. This court previously granted

Mr. Webster a certificate of appealability as to all four.   1
                                                                 He contends (1) there



1
       We deem abandoned the other ten issues that Mr. Webster raised in the
district court.

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was constitutionally insufficient evidence to show that a rape was committed, (2)

there was constitutionally insufficient evidence to show that he committed or

permitted child abuse murder, (3) he was denied a fair trial because the trial court

would not allow him to introduce evidence that another person could have killed

Tristien, and (4) he was denied his right to present a defense because the court

refused to grant a continuance in order to secure the presence of expert witness

Dr. Krause or, alternatively, his trial attorneys were ineffective for failing to

subpoena Dr. Krause.

      The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs whether Mr. Webster may obtain federal habeas relief. Under AEDPA,

we cannot grant habeas relief on a claim a state court adjudicated on the merits

unless the state court’s decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. §§ 2254(d)(1) & 2254(d)(2). Additionally, we presume state court

findings are correct unless the petitioner rebuts this presumption with clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

      Having reviewed the briefs, the record, and applicable law pursuant to the

above-mentioned standard, we conclude for the reasons stated in the magistrate


                                          -3-
judge’s detailed and well-reasoned report and recommendation that Mr. Webster

has not established his entitlement to habeas relief. Indeed, Mr. Webster’s

appellate brief ignores the standard governing whether a petitioner may obtain

federal habeas relief, instead arguing the issues as though this were a direct

criminal appeal. Accordingly, the district court’s July 19, 2002, order adopting

the magistrate judge’s April 29, 2002, report and recommendation is AFFIRMED

and we DENY Mr. Webster’s petition.


                                                     Entered for the Court



                                                     Stephanie K. Seymour
                                                     Circuit Judge




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