                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              AUG 8 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 ANTHONY JAMES MANN,

          Petitioner-Appellant,

 v.                                                            No. 99-6439
                                                              (W.D. Okla.)
 L.L. YOUNG; ATTORNEY GENERAL OF                         (D.Ct. No. 98-CV-1687)
 THE STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, 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          This order and judgment is not binding precedent except under the doctrines of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.
       Appellant Anthony James Mann, a state inmate appearing pro se, appeals

the district court’s decision denying his petition filed pursuant to 28 U.S.C.

§ 2254. We deny Mr. Mann a certificate of appealability and dismiss his appeal. 1



       Mr. Mann’s first trial resulted in a capital conviction, which the United

States District Court for the Western District of Oklahoma reversed and remanded

because of an attorney conflict of interest issue. Following a second trial, a jury

convicted Mr. Mann of first degree murder and he received a sentence of life

imprisonment without the possibility of parole. Mr. Mann unsuccessfully

appealed his conviction to the Oklahoma Court of Criminal Appeals alleging (1)

the state presented insufficient evidence to establish he possessed intent to kill the

victim; (2) the trial court improperly refused to instruct the jury on the voluntary

intoxication defense; and (3) the trial court violated the ex post facto clauses of

the United States and Oklahoma Constitutions by instructing the jury to consider

the statutory sentencing option of life without parole, which was in effect at the

time of his second trial, but not at his first trial. The Oklahoma Court of Criminal



       1
          The district court made no ruling on Mr. Mann’s request for a certificate of
appealability. Under our Emergency General Order of October 1, 1996, we deem the
district court’s failure to issue a certificate of appealability within thirty days after filing
the notice of appeal as a denial of the certificate. Accordingly, we construe this appeal as
Mr. Mann’s request to this court for a certificate of appealability.


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Appeals addressed the merits of Mr. Mann’s appeal after a full review of the

evidence and law supporting his conviction, and affirmed his conviction (id. at

13-14).



      Following his state appeal, Mr. Mann filed his federal habeas corpus

petition raising the same issues raised in his direct state appeal. The district court

referred the matter to a magistrate judge who issued a lengthy Report and

Recommendation. In making her recommendation to deny Mr. Mann’s petition,

the magistrate judge performed an exhaustive analysis of the evidence supporting

Mr. Mann’s conviction and the state trial court’s decision not to instruct the jury

on the intoxication defense. The magistrate judge also conducted a thorough

discussion of why Mr. Mann’s state sentence did not violate the ex post facto

clauses of the United States and Oklahoma constitutions. The magistrate judge

pointed out the sentencing option of the death penalty existed at both trials, and

because Mr. Mann’s ultimate sentence of life without parole was not more

onerous than the death penalty, his sentence did not increase the punishment for

his crime in violation of the ex post facto clauses. In response, Mr. Mann filed

objections to the Report and Recommendation, but only on the issues of the

sufficiency of the evidence and alleged ex post facto violation. As a result, the

district court determined Mr. Mann waived the issue on the intoxication defense


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jury instruction. The district court again thoroughly reviewed the evidence

underlying Mr. Mann’s conviction and found it sufficient. In addition, the district

court analyzed Oklahoma’s application of the life without parole sentence, finding

no contradiction or unreasonable application of federal law in the Oklahoma

Court of Criminal Appeal’s ruling that no ex post facto problem arose from the

application of an intermediate sentence for first degree murder.



      On appeal, Mr. Mann raises the same issues concerning the sufficiency of

the evidence to show his intent to kill the victim and alleged ex post facto

violations. In order for this court to grant Mr. Mann’s request for a certificate of

appealability and proceed to the merits of his appeal, he must make a substantial

showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Where,

as here, the “district court has rejected the constitutional claims on the merits, the

showing required to satisfy § 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, ___ U.S. ___,

___, 120 S. Ct. 1595, 1604 (2000). Because Mr. Mann is seeking relief from a

state conviction, his success in obtaining federal habeas corpus relief will depend

on whether he can show the state court’s adjudication

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as

                                          -4-
      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)(1). In this case, the district court determined Mr. Mann’s

petition failed to meet these requirements. We review the legal basis for the

district court’s dismissal of Mr. Mann’s federal § 2254 petition de novo. See

Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 525 U.S. 950

(1998).



      In this case, Mr. Mann fails to make a substantial showing of the denial of

a constitutional right, as required under 28 U.S.C. § 2253(c)(2) for a certificate of

appealability. Specifically, Mr. Mann fails to demonstrate reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong. While we do not take our review of Mr. Mann’s appeal and request for a

certificate of appealability lightly, we have nothing further to add to the district

court’s and magistrate judge’s extremely thorough discussions and determinations

on the same issues presented to this court on appeal. Any further discussion

would only duplicate the same or similar analysis concerning the state court’s

adjudication and sentencing of Mr. Mann.




                                          -5-
      Accordingly, for substantially the same reasons provided in the magistrate

judge’s September 9, 1999 Report and Recommendation and the district court’s

November 22, 1999 Order, we deny Mr. Mann’s request for a certificate of

appealability and DISMISS his appeal. We further deny Mr. Mann’s request to

proceed in forma pauperis.



                                      Entered by the Court:

                                      WADE BRORBY
                                      United States Circuit Judge




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