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

 RODNEY R. GARNEAU,

       Petitioner - Appellant,
                                                          No. 04-6158
 v.                                                (D.C. No. 02-CV-1374-M)
                                                         (W.D. Okla.)
 RON WARD,

       Respondent - Appellee.


                                      ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Petitioner-appellant Rodney Garneau appeals the district court’s decision

denying him habeas relief, see 28 U.S.C. § 2254, from his Oklahoma convictions

on two counts of first-degree rape and one count of committing indecent or lewd

acts with a child under the age of sixteen. At trial, evidence indicated that

Garneau had been sexually abusing his girlfriend’s eight-year-old daughter for

several years. The trial court sentenced Garneau to prison terms of twenty,

twenty-five and ten years to run consecutively. On appeal, Garneau now asserts

his appellate attorney was constitutionally ineffective in failing to raise, on direct

appeal, three claims challenging trial counsel’s representation: trial counsel failed

1) to investigate adequately the State’s medical evidence, and its admissibility;
2) to present mitigating witnesses and evidence in Garneau’s defense; and 3) to

demur to the State’s evidence at the close of the State’s case. 1

      We grant Garneau’s motion to proceed in forma pauperis. See 28 U.S.C.

§ 1915(a)(1). But to pursue this appeal, he must also obtain a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1). And to be entitled to a COA,

Garneau must make a “substantial showing of the denial of a constitutional right.”

Id. § 2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether (or for that matter, agree that) the petition should have been

resolved [by the district court] in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,

529 U.S. 473, 483-84 (2000) (quotations omitted). Garneau has failed to make




      1
             Before the district court, Garneau raised a number of other claims,
alleging the State denied him trial transcripts and a fair post-conviction
proceeding; his appellate attorney was ineffective for failing to raise, on direct
appeal, claims challenging the prosecutor’s conduct in asking the victim leading
questions and presenting perjured testimony, arguing Garneau’s convictions were
based on “improper influence/motive to fabricate,” and hearsay, and asserting
Garneau is actually innocent; Garneau’s trial counsel was ineffective in failing to
investigate adequately the State’s medical evidence, and its admissibility, and to
present “any reasonable line of defense;” the prosecutor improperly asked the
victim leading questions and allowed the State’s witnesses to commit perjury; the
evidence was insufficient to support the second rape conviction; Garneau was
denied due process because “of improper influence/motive to fabricate,” and
hearsay; and he is actually innocent. Dist. Ct. R. Doc. 1 at 24, 26, 31. Garneau,
however, does not reassert these claims now on appeal.

                                          -2-
that showing. For substantially the reasons relied upon by the district court,

therefore, we DENY Garneau a COA and DISMISS this appeal.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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