                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAR 14 2002
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


FAUSTINO HERNANDEZ,

          Petitioner - Appellant,
                                                       No. 01-6434
v.                                              (D.C. No. 01-CV-1286-M)
                                              (Western District of Oklahoma)
STATE OF OKLAHOMA,

          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 Faustino Hernandez’s requests for a

certificate of appealability (“COA”) and permission to proceed on appeal in forma


      *
       This order and judgment is not binding precedent, except under the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.
pauperis. Hernandez seeks a COA so that he can appeal the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from a “final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

state court” unless the petitioner first obtains a COA). Because Hernandez has

not “made a substantial showing of the denial of a constitutional right,” this court

denies his requests for a COA and to proceed in forma pauperis and dismisses

this appeal.

      Hernandez pleaded nolo contendere in Oklahoma state court to trafficking

in marijuana and was sentenced to twenty years in prison, with all but the first

seven years suspended. Hernandez did not file a direct appeal. He did, however,

file a state petition for post-conviction relief, challenging a state statute denying

earned credits to those convicted of trafficking in drugs and asserting that his

nolo contendere plea was not knowing because he was not informed of the

impediment to earning credits. The Oklahoma Court of Criminal Appeals denied

the petition on the ground that Hernandez had procedurally defaulted his claims

by failing to raise them in a direct appeal.

      Hernandez then filed the instant § 2254 petition. The district court referred

the matter to a magistrate judge for initial proceeding pursuant to 28 U.S.C. §

636(b)(1). In a thorough and well-stated report and recommendation, the


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magistrate judge recommended that the district court deny the petition on the

basis of procedural bar. The magistrate judge noted that it was uncontested that

Hernandez had failed to timely raise his claims in state court. The magistrate

judge further concluded that Hernandez had failed to show cause and prejudice

for the procedural default. Upon de novo review, the district court adopted the

report and recommendation and denied Hernandez’s petition.

      To be entitled to a COA, Hernandez must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). He can make such

a showing by demonstrating that “reasonable jurists would find the district court’s

assessment of [his] constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). Upon review of Hernandez’s briefs and contentions,

the magistrate judge’s report and recommendation, and the entire record on

appeal, we conclude that the district court’s resolution of Hernandez’s petition is

not fairly debatable among reasonable jurists. Accordingly, this court DENIES

Hernandez’s request for a COA for substantially those reasons stated in the

magistrate judge’s report and recommendation dated October 31, 2001, DENIES

Hernandez’s request to proceed in forma pauperis, and DISMISSES this appeal.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge

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