                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          April 19, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                          Clerk of Court

 HAROLD R. HENAGER,

              Petitioner-Appellant,                    No. 05-6385
       v.                                            (W.D. Oklahoma)
                                                 (D.C. No. 05-CV-870-W)
 RANDY PARKER, Warden,

              Respondent-Appellee.




                                      ORDER


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.


      Harold Henager, an Oklahoma state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s decision

dismissing his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr.

Henager also seeks to proceed in forma pauperis (“IFP”). Because we determine

that he has not made “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000),

we deny his request for a COA and dismiss his appeal. We also deny his motion

to proceed IFP.

                                I. BACKGROUND
      On March 16, 2004, Mr. Henager pleaded guilty to one count of attempted

manufacture of a controlled dangerous substances (methamphetamine), based on

the use of pseudoephedrine-based products. The Oklahoma state court sentenced

Mr. Henager to twenty years’ imprisonment, with all but the first ten years

suspended, to run concurrently with Mr. Henager’s sentences in two other

Oklahoma state court actions. Mr. Henager sought post-conviction relief, which

was denied.

                                   II. DISCUSSION

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322

(2003). A COA can issue only “if the applicant has made a substantial showing of

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

court has dismissed a habeas petition on procedural grounds, such as exhaustion,

a COA will issue only when “jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

      Mr. Henager filed a timely petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, in which he raised two issues: (1) his conviction is

unconstitutional because pseudoephedrine is incapable of being part of the

manufacture of “true” methamphetamine; and (2) the Oklahoma legislature erred

when it concluded that pseudoephedrine is a precursor substance. Rec. doc. 1, at 4

(Petition, filed July 29, 2005); see O KLA . S TAT . tit. 63, § 2-332, 2-332(A).


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      The magistrate judge concluded that the Oklahoma Court of Criminal

Appeals’s rejection of the same claims was reasonable, and recommended the

denial of habeas relief. The district court noted the Oklahoma Court of Criminal

Appeals assertion that “‘[t]he Oklahoma Legislature has the authority to

determine what is lawful and what is unlawful in this state.’” Rec. doc. 17, at 2

(Dist. Ct. Order, filed Nov. 30, 2005) (quoting Henager v. State, No. PC-2005-

476, Order at 2 (Okla. Crim. App. July 22, 2005)). The district court adopted the

magistrate judge’s Report and Recommendation and denied relief. The district

court construed Mr. Henager’s Notice of Appeal as a request for a COA, declined

to issue a COA, and denied his application to proceed IFP.

      We have reviewed Mr. Henager’s brief, the magistrate judge’s Report and

Recommendation, the district court’s orders, and the entire record on appeal. We

conclude that jurists of reason would not find the district court’s ruling debatable.

                                 III. CONCLUSION

      For substantially the same reasons as set forth in the magistrate judge’s

report and recommendation and the district court’s orders, we DENY Mr.

Henager’s request for a COA, we therefore DENY his motion to proceed IFP, and

we DISMISS the appeal.



                                              Entered for the Court,


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    Robert H. Henry
    Circuit Judge




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