                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAR 25 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    WILLIAM KARL WINSNESS,

                Petitioner-Appellant,

    v.                                                    No. 96-4193
                                                    (D.C. No. 95-CV-391-B)
    FRED VAN DER VEUR, Warden;                             (D. Utah)
    UTAH STATE PRISON; STATE
    OF UTAH,

                Respondents-Appellees.




                             ORDER AND JUDGMENT *



Before ANDERSON, McKAY, and LUCERO, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Petitioner William Karl Winsness appeals the district court’s order adopting

the recommendation of the magistrate judge to dismiss his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. The habeas petition was filed

on April 28, 1995, before enactment of the Antiterrorism and Effective Death

Penalty Act (AEDPA). Consequently, AEDPA does not apply. See Lindh v.

Murphy, 117 S. Ct. 2059, 2068 (1997). Petitioner’s request to proceed in forma

pauperis on appeal is granted. We issue a certificate of probable cause, and

affirm.

      Our review of the district court’s legal conclusions is de novo; we afford

a presumption of correctness to the state court’s findings of fact unless not fairly

supported by the record. See Sena v. New Mexico State Prison, 109 F.3d 652,

653 (10th Cir. 1997).

      We have carefully considered petitioner’s arguments in light of the record

and the prevailing law. We affirm the dismissal of his habeas petition for

substantially the reasons stated in the magistrate judge’s comprehensive report

and recommendation dated September 3, 1996, adopted by the district court on

October 29, 1996.

      Petitioner maintains the district court was required to hold a hearing on his

habeas petition. A federal district court is not required to hold a hearing unless

the petitioner makes “allegations which, if proved, would entitle him to [habeas]


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relief.” Medina v. Barnes, 71 F.3d 363, 366 (10th Cir. 1995). Despite

petitioner’s insistence to the contrary, the factual issues pertaining to

inconsistencies in the testimony of the police officers and the locations of the

bullet holes were presented to the jury. The evidence he now seeks to introduce

is cumulative. Therefore, an evidentiary hearing was not required.

      Petitioner argues that the district court erred in refusing to appoint an

attorney for him. He also seeks appointment of counsel by this court. “[T]here

is no constitutional right to counsel beyond the appeal of a criminal conviction,

and . . . generally appointment of counsel in a § 2254 proceeding is left to the

court’s discretion.” Swazo v. Wyoming Dep’t of Corrections State Penitentiary

Warden, 23 F.3d 332, 333 (10th Cir. 1994). The district court did not abuse its

discretion in declining to appoint counsel in this case. Petitioner’s request for

appointment of counsel on appeal is denied.

      Petitioner’s remaining motions are denied. The judgment of the United

States District Court for the District of Utah is AFFIRMED. The mandate shall

issue forthwith.



                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge

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