                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 6 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    TERRY W. DOWDY,

                Petitioner-Appellant,

    v.                                                   No. 99-6163
                                                   (D.C. No. 98-CV-1512-A)
    RICK HUDSON,                                         (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , HENRY , 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      This order and judgment is not binding precedent, except under the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.
      Petitioner seeks a certificate of appealability from the district court’s order

denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and

he seeks leave to proceed in this matter in forma pauperis. Petitioner’s motion

to proceed in forma pauperis establishes that he is indigent, so such leave shall

be granted. To obtain a certificate of appealability petitioner must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Based upon our review of petitioner’s appellate brief and the record

as a whole, we conclude that petitioner has failed to make such a showing.

      Accordingly, petitioner’s motion for leave to proceed in forma pauperis is

GRANTED. Petitioner’s application for a certificate of appealability is DENIED

for substantially the reasons given by the magistrate judge in his report and

recommendation of February 3, 1999, and the appeal is DISMISSED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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