F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 9 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HAROLD GENE WEATHERLY,
Petitioner-Appellant,
v. No. 97-6160
(D.C. No. 96-CV-1848)
STATE OF OKLAHOMA; (W.D. Okla.)
JACK COWLEY,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining petitioner’s brief and the appellate record, this panel has
determined unanimously to grant petitioner’s request for a decision without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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 appeals from the district court’s denial of habeas corpus relief.
See 28 U.S.C. § 2254. The district court also denied petitioner’s request for a
certificate of appealability. See id. § 2253(c)(1). Before petitioner may proceed
on appeal, he must secure a certificate of appealability from this court. See id.
Petitioner argues that this court should grant a certificate of appealability on the
following grounds: (1) the Oklahoma Court of Criminal Appeals improperly
imposed a procedural bar to the substantive claims raised; and (2) if the
substantive claims were procedurally defaulted, the default should be excused
because there was cause for the default and actual prejudice, or a failure to
consider his claims will result in a fundamental miscarriage of justice.
Upon consideration of the record and petitioner’s brief, we conclude
petitioner has failed to make a substantial showing of a denial of a constitutional
right. See id. § 2253(c)(2). We DENY petitioner’s request for a certificate of
appealability for substantially the reasons stated by the magistrate judge in his
findings and recommendation filed December 26, 1996, and supplemental
findings and recommendation filed March 6, 1997, which were adopted by the
-2-
district court on April 14, 1997. The appeal is DISMISSED. Petitioner’s motion
to proceed on the record is GRANTED.
Entered for the Court
Michael R. Murphy
Circuit Judge
-3-