                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 9 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


DAVID L. HILLIARD,

          Petitioner-Appellant,
                                                       No. 97-6163
v.
                                                 (W. District of Oklahoma)
                                                  (D.C. No. 96-CV-1779)
STEVE KAISER; ATTORNEY
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondents-Appellees.


                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a);

10th Cir. R. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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 David L. Hilliard, appearing pro se, petitioned the district court

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court

dismissed the petition and denied Hilliard a certificate of appealability for leave

to proceed on appeal. Id. § 2253(c). This matter is before the court on Hilliard’s

application for a certificate of appealability.

      Hilliard was convicted by a jury of conspiracy to commit robbery, robbery

with a dangerous weapon, larceny of a motor vehicle, and assault and battery with

intent to kill. On direct appeal, the Oklahoma Court of Criminal Appeals

affirmed Hilliard’s convictions for conspiracy, robbery, and larceny, but vacated

his conviction for assault and battery on the grounds that conviction for both

robbery and assault and battery violated the constitutional prohibition against

double jeopardy. Hilliard failed in an attempt to have his remaining convictions

overturned in a subsequent state petition for post-conviction relief. Hilliard then

filed the instant petition pursuant to § 2254, claiming that (1) his convictions for

conspiracy, robbery and larceny violate the Double Jeopardy Clause; (2)

discriminatory peremptory strikes and improper comments by the prosecutor

deprived him of his constitutional right to a fair trial; and (3) his trial and

appellate counsel were ineffective for failure to raise the issues at trial and on

appeal.




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      In an exceptionally thorough Report and Recommendation, a magistrate

judge recommended that Hilliard’s petition be denied. The magistrate noted that

although Hilliard’s double jeopardy and Batson claims were procedurally barred

because they were not raised on direct appeal to the Oklahoma Court of Criminal

Appeals, those claims had to be considered on the merits in order to decide the

merits of Hilliard’s ineffective assistance of counsel claims. As to Hilliard’s

double jeopardy claims, the magistrate judge noted that larceny, robbery and

conspiracy were separate crimes under both Oklahoma law and the Supreme

Court’s decision in Blockburger v. United States, 284 U.S. 299 (1932). The

magistrate judge concluded that Hilliard’s Batson claim was meritless because it

amounted to nothing more than a set of conclusory allegations. 1 In light of the

fact that Hilliard’s claims of error failed on the merits, 2 his claims of ineffective

      1
       The magistrate also concluded that Hilliard’s appellate counsel was not
ineffective in failing to raise the Batson claim on appeal. According to the
magistrate judge, the claim would not have been apparent to appellate counsel
because the voir dire portion of Hilliard’s trial had not been transcribed. We
conclude that the magistrate was correct to conclude that Hilliard’s claims are far
too conclusory to state a proper Batson claim and do not, therefore, rely on the
cumulative justification that jury voir dire was not transcribed.
      2
       We note that although the magistrate judge concluded the issue was
procedurally barred, it never reached the merits, for the purpose of evaluating the
ineffective assistance of counsel claim, of Hilliard’s contention that the
prosecutor violated Hilliard’s constitutional rights by repeatedly referring to
Hilliard’s race during opening and closing arguments. Nevertheless, this court
has scoured the transcripts of the prosecutor’s opening and closing arguments and
has not found a single reference on the part of the prosecutor to Hilliard’s race.
Accordingly, Hilliard’s contentions of prosecutorial misconduct and his related

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assistance of counsel also necessarily failed. After conducting a de novo review,

the district court adopted the magistrate judge’s Report and Recommendation in

its entirety.

        A habeas petitioner is entitled to a certificate of appealability only upon a

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

2253(c)(2). This court has held that the standard for granting a certificate of

appealability under the § 2253(c) is the same standard set out by the Supreme

Court in Barefoot v. Estelle, 463 U.S. 880 (1983). Lennox v. Evans, 87 F.3d 431,

434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part on

other grounds by, Lindh v. Murphy, 117 S. Ct. 2059 (1997). Under the Barefoot

standard, a certificate of appealability will issue only where the petitioner has

demonstrated the issues raised are (1) debatable among jurists of reason, (2) a

court could resolve the issues differently, or (3) the questions presented are

deserving of further proceedings. 463 U.S. at 893 n.4.

       This court has conducted a de novo review of Hilliard’s brief and

application for a certificate of appealability, the magistrate’s Report and

Recommendation and district court’s Order, and the entire record on appeal. In

light of that review, we conclude that Hilliard has failed to make a “substantial




claims of ineffective assistance of trial and appellate counsel are utterly without
merit.

                                           -4-
showing of the denial of a constitutional right” for substantially the reasons set

for in the magistrate judge’s excellent Report and Recommendation dated January

16, 1997, and the district court’s order dated April 30, 1997. Accordingly, this

court DENIES Hilliard a certificate of appealability and DISMISSES the appeal.

                                                ENTERED FOR THE COURT,



                                                Michael R. Murphy
                                                Circuit Judge




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