                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         SEP 27 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


ALLEN CASEY EDWARDS,

          Petitioner - Appellant,
                                                        No. 02-6004
v.                                               (D.C. No. CIV-00-1301-L)
                                                     (W. D. Oklahoma)
DAYTON J. POPPELL,

          Respondent - Appellee.




                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.


      After examining the briefs and 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 case is before the court on a request by Allen Casey Edwards for a

certificate of appealability (“COA”). Edwards seeks a COA so he can appeal the


      *
       This order and judgment is not binding precedent, except under the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.
district court’s dismissal of his 28 U.S.C. § 2254 petition.     See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254

petition unless the petitioner first obtains a COA). Because Edwards has not

made a substantial showing of the denial of a constitutional right, he is not

entitled to a COA and his appeal is dismissed.       See id. § 2253(c)(2).

       After a jury trial, Edwards was convicted in Oklahoma state court of one

count of child abuse murder in the first degree. Edwards was sentenced to life

imprisonment. Edwards filed a direct appeal with the Oklahoma Court of

Criminal Appeals. Edwards’ appeal was denied and his conviction affirmed.

Edwards then filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254

with the United States District Court for the Western District of Oklahoma.

       Edwards’ § 2254 petition was referred to a United States magistrate judge

for initial proceedings.   See 28 U.S.C. § 636(b)(1)(B). The magistrate judge

prepared a very thorough Report and Recommendation in which he addressed

each of the five issues raised by Edwards. Ultimately, the magistrate judge

recommended that Edwards’ petition be denied. After considering Edwards’

timely-filed objections to the Report and Recommendation, the district court

denied Edward’s petition.

       In his application for a COA, Edwards presents a detailed argument on

only one issue addressed by the district court; whether the jury instruction on the


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elements of child abuse murder violated his due process rights. Edwards argues

that Enmund v. Florida , 458 U.S. 781 (1982) and     Tison v. Arizona , 481 U.S. 137

(1987) require his conviction be supported by a jury finding of intent to injure.

We agree with the district court that   Enmund and Tison are inapplicable to the

guilt phase of a criminal trial.   See Cabana v. Bullock , 474 U.S. 376, 385 (1986).

“Enmund does not concern the guilt or innocence of the defendant—it establishes

no new elements of the crime of murder that must be found by the jury. . . .

Enmund holds only that the principles of proportionality embodied in the Eighth

Amendment bar imposition of the death penalty upon a class of persons who may

nonetheless be guilty of the crime of capital murder as defined by state law . . . .”

Id.; see also Cannon v. Gibson , 259 F.3d 1253, 1270 n.15 (10th Cir. 2001)

(“This court does not read     Tison as addressing in any way the question whether

[defendant’s] murder conviction is infirm because the jury was not properly

instructed at trial on the elements of malice murder.”).

       Although it is unclear from his appellate brief, Edwards also appears to be

seeking a COA on the other four issues he raised before the district court.

Edwards presents no appellate argument on these four issues. This court,

however, has reviewed Edwards’ appellate brief, the district court’s Order dated

December 21, 2001, the Report and Recommendation dated January 16, 2002,

and the entire record on appeal. That review clearly demonstrates the district


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court’s denial of Edwards’ § 2254 petition is not deserving of further

proceedings or subject to a different resolution on appeal. Accordingly, we   deny

Edwards’ request for a COA and      dismiss his appeal.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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