UNITED STATES COURT OF APPEALS
Filed 4/12/96
FOR THE TENTH CIRCUIT
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JOHNNY E. EVANS, )
)
Petitioner-Appellant, )
)
v. ) No. 95-6389
) (D.C. No. CIV-95-290-R)
JACK COWLEY, ATTORNEY GENERAL FOR ) (Dist. of Oklahoma)
THE STATE OF OKLAHOMA, )
)
)
Respondents-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Johnny Edward Evans (Evans), an inmate of the State of
*
This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.
Oklahoma, appearing pro se and having been granted leave to proceed
in forma pauperis, appeals from the district court’s order denying
his petition for writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254.1
On February 25, 1992, Evans was convicted, following a jury
trial, of Unlawful Delivery of a Controlled Drug in the District
Court of Beckham County, Oklahoma. On March 18, 1992, he was
sentenced to 40 years imprisonment and fined $ 10,000.
After exhausting his state court remedies, Evans filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his petition, Evans alleged that: (1) the state trial court
abused its discretion by denying his motion for a continuance of
his trial date; (2) the state trial court erred when it permitted
the state to introduce into evidence four “rocks” of cocaine; (3)
comments made by the prosecutor during closing arguments deprived
him of a fair trial; and (4) his sentence was excessive.
The matter was assigned to Magistrate Judge Blasdel who issued
a Report and Recommendation on September 8, 1995, recommending that
Evans’ petition be denied. Evans filed timely objections to the
magistrate judge’s report. After conducting a de novo review of
the magistrate judge’s findings and recommendations, the district
court adopted the Report and Recommendation in its entirety and
1
We grant issuance of a certificate of probable cause
simply to reach the merits of the case.
- 2 -
denied Evans’ petition. The district court found/concluded that:
Evans failed to identify any possible legal prejudice which might
have resulted from the state trial court’s denial of his requested
continuance; Evans failed to demonstrate any factual basis for his
complaint that the state trial court’s evidentiary ruling
constituted an abuse of discretion nor did he articulate any legal
prejudice which could have resulted on account of the ruling; the
particular comments made by the state prosecutor under the
circumstances of Evans’ case were neither so severe, nor so
potentially damaging to Evans’ case that they raise any
constitutional concerns; and Evans’ sentence fell well within the
statutory guidelines set by the state legislature and the length of
the sentence did not implicate either Eight or Fourteenth Amendment
concerns.
On appeal, Evans contends that the district court erred in
denying his petition for a writ of habeas corpus. In addition,
Evans reiterates his claims made to the district court.2 We review
a district court’s legal conclusions in dismissing a petition for
a writ of habeas corpus de novo, Ballinger v. Kerby, 3 F.3d 1371,
1374 (10th Cir. 1993), although findings of fact underlying mixed
questions of law and fact are accorded the presumption of
correctness. Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992).
2
To the extent that Evans raises new issues on appeal
not raised in his § 2254 petition, these issues are not properly
before this court and are not considered herein.
- 3 -
We have carefully reviewed the record on appeal. We AFFIRM
substantially for the reasons set forth in the magistrate judge’s
Report and Recommendation of September 8, 1995, and the district
court’s Memorandum Opinion and Order of October 20, 1995.
The mandate shall issue forthwith.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge