                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           MAY 31 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JIM L. MAUK,

                  Petitioner-Appellant,

    v.                                                   No. 00-6321
                                                   (D.C. No. CIV-98-1544-L)
    GLYNN BOOHER,                                        (W.D. Okla.)

                  Respondent-Appellee.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , BRORBY , and BRISCOE , 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 Jim L. Mauk, 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      This order and judgment is not binding precedent, except under the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. The district court did not grant or deny 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 of the notice of appeal as a denial of a certificate. Petitioner has filed

an application for a certificate of appealability in this court.   See 28 U.S.C.

§ 2253(c)(1). “A certificate of appealability may issue . . . only if the applicant

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

§ 2253(c)(2). Petitioner has also filed a motion for leave to proceed on appeal

without prepayment of costs or fees.

       Petitioner was convicted of conspiracy, commercial gambling, and corrupt

organizations activity. He was sentenced to fifteen years’ imprisonment and a

$30,000 fine. His petition for state post-conviction relief was denied. The

magistrate judge, in a thirty-three page report and recommendation, recommended

that federal habeas relief be denied. Petitioner filed objections to the magistrate

judge’s report, adding for the first time an argument that trial, appellate, and state

post-conviction counsel were constitutionally ineffective. The district court

deemed petitioner’s ineffective assistance claim waived, otherwise adopted the

magistrate judge’s report and recommendation, and denied relief.

       Petitioner argues on appeal that: (1) the criminal information did not

sufficiently inform him of the charges against him; (2) insufficient evidence


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existed to support the corrupt organizations conviction; (3) the trial court

erroneously failed to give a jury instruction on the term “enterprise”; (4) his

convictions for racketeering and conspiracy to commit commercial gambling

constituted a double jeopardy violation; (5) the Oklahoma Corrupt Organizations

Act is overly broad and unconstitutionally vague; and (6) appellate and state

post-conviction counsel were constitutionally ineffective. We have carefully

considered petitioner’s arguments in light of the record on appeal. We find no

error, and deny a certificate of appealability for substantially the same reasons as

those set forth in the magistrate judge’s thorough and well-reasoned report and

recommendation, as modified and adopted by the district court.

      Petitioner’s motion for leave to proceed on appeal without prepayment of

costs or fees is denied. Petitioner’s application for a certificate of appealability is

denied. The appeal is DISMISSED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




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