                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 30 2001
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

    GARRY MICHAEL CHENEY,

                Petitioner-Appellant,

    v.                                                     No. 01-5004
                                                     (D.C. No. 97-CV-300-K)
    STEVE HARGETT,                                         (N.D. Okla.)

                Respondent-Appellee.


                                ORDER AND JUDGMENT         *




Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.




         After examining the appellant’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.

         Petitioner Garry Michael Cheney seeks a certificate of appealability (COA)

to pursue his appeal of the district court’s denial of his petition for a writ of


*
      This order and judgment is not binding precedent, except under the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.
habeas corpus filed pursuant to 28    U.S.C. § 2254. Determining that Mr. Cheney

has not met the statutory requirements, we deny his application and dismiss the

appeal.

       To be entitled to a COA, Mr. Cheney must make a “substantial showing of

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

showing by establishing 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) (quotation omitted). We

will grant relief if the state court entered a judgment that

       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or

       (2) resulted in a decision that 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).

       In 1993, Mr. Cheney was found guilty of first degree murder and was

sentenced to death. On appeal, the Oklahoma Court of Criminal Appeals

determined that “there [wa]s no evidence of physical or mental torture prior to

death, and the especially heinous, atrocious or cruel aggravating circumstance

should not have been applied in this case.”         Cheney v. State , 909 P.2d 74, 83


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(Okla. Crim. App. 1995). The court affirmed the first degree murder conviction,

but modified petitioner’s sentence to life imprisonment without the possibility of

parole.

      In his federal habeas petition, Mr. Cheney raised nine issues. The district

court denied relief and Mr. Cheney appeals. On appeal, he argues that the state

failed to prove his sanity beyond a reasonable doubt and that the insanity

instruction was fundamentally defective as it required the jury to find him insane

under both prongs of the   McNaghten test. He contends the evidence was

insufficient to prove first degree murder and that the state court erred in failing to

instruct the jury on second degree murder as it was constitutionally required to do

because his was a capital case. Mr. Cheney asserts cumulative error as to (1) the

heat of passion manslaughter instruction sets forth an erroneous standard of

proof; (2) prosecutorial misconduct, (3) improper admission of the irrelevant

opinion of a jailhouse informant. Finally, Mr. Cheney contends he received

ineffective assistance of counsel.

      Upon review of the record, the brief submitted to this court, and the

applicable law, we conclude that Mr. Cheney has failed to meet the standards

established in § 2254(d). Reasonable jurists could not debate whether his

“petition should have been resolved in a different manner” or whether “the issues




                                          -3-
presented were adequate to deserve encouragement to proceed further.”        Slack ,

529 U.S. at 484 (quotation omitted).

      We DENY Mr. Cheney’s application for a COA and DISMISS this appeal.


                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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