                  UNITED STATES COURT OF APPEALS

                         FOR THE TENTH CIRCUIT



 MARK KENT NOLAN,

             Petitioner-Appellant,

 v.                                                     No. 99-6208

 DAYTON POPPEL,

             Respondent-Appellee.


                                     ORDER
                               Filed April 19, 2000


Before TACHA, ANDERSON, and LUCERO, Circuit Judges.




      Appellant Mark Kent Nolan petitions for rehearing of the court’s April 3,

2000 order and judgment, arguing that this court granted him a certificate of

appealability on November 16, 1999, and a certificate of appealability should not

have been denied subsequently. He also requests appointment of counsel and an

opportunity for additional briefing on the appeal.

      The petition for rehearing is granted in part. Our original order and

judgment is amended to reflect that a certificate of appealability was granted and

that petitioner’s habeas claims were considered and denied on the merits under
the applicable standard of review. A copy of the amended order and judgment is

attached to this order and is substituted for the original. The petition for

rehearing is otherwise denied.



                                                Entered for the Court

                                                Patrick Fisher, Clerk of Court

                                                By:   Keith Nelson
                                                      Deputy Clerk




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                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 19 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MARK KENT NOLAN,

                Petitioner-Appellant,

    v.                                                   No. 99-6208
                                                     (D.C. No. 98-CV-787)
    DAYTON POPPEL,                                       (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , ANDERSON , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner Mark Kent Nolan, a prisoner of the State of Oklahoma appearing

pro se, appeals from the denial of his petition for habeas relief filed under


*
      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.
28 U.S.C. § 2254, and seeks leave to proceed on appeal in forma pauperis.    His

application for a certificate of appealability was previously granted and

respondent has filed a response.

      Petitioner is serving a thirty-five year sentence imposed after his

conviction of first degree burglary and possession of a firearm after conviction of

a felony. He argues 1 that: (1) the charging information was constructively

amended, violating his right to due process; (2) his conviction for first degree

burglary, in light of his acquittal on a charge of assault with a deadly weapon,

violated his right to be free from double jeopardy; (3) evidence from the first

phase of the bifurcated trial was improperly used in the second phase; (4) he was

denied effective assistance of trial counsel; and (5) he was denied effective

assistance of appellate counsel. The magistrate judge analyzed each of

petitioner’s claims and recommended that the petition be dismissed. The district

court adopted the magistrate judge’s recommendation.

      Because petitioner filed his § 2254 petition in June 1998, the provisions of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. See



1
       Petitioner also argues that the discrepancy between the charging
information and the proof at trial amounted to a prejudicial variance. Petitioner
raised this argument for the first time in his objections to the magistrate judge’s
report and recommendation.     See R. Doc. 19, at 1. Accordingly, we deem the
issue waived and do not address it.   See Marshall v. Chater , 75 F.3d 1421, 1426
(10th Cir. 1996).

                                          -2-
Lindh v. Murphy, 521 U.S. 320, 336 (1997). “[W]hen reviewing the merits of a

claim already decided by the state courts, we are bound to deny habeas relief

unless the state court’s decision ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court’ or ‘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.’”

LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C.

§ 2254(d)(1), (2)). “If the habeas claim before us was not decided on the merits

by the state courts, and the federal district court made its own determination in

the first instance, we review the district court’s conclusions of law de novo and

its findings of fact, if any, for clear error.” Id.

       We have reviewed the magistrate judge’s report and recommendation, the

district court’s order, the parties’ materials, and the record on appeal. We find

no error. Accordingly, petitioner’s motion to proceed on appeal in forma

pauperis is granted, and we AFFIRM the denial of habeas relief for substantially

the same




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reasons as those set forth in the magistrate judge’s carefully prepared report and

recommendation, as adopted by the district court.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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