F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 2 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
CONNIE L. BROWN,
Petitioner-Appellant,
vs. No. 97-6395
(D.C. No. CIV-97-499-C)
STEVE HARGETT, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO, KELLY, and HENRY, Circuit Judges. **
Mr. Brown, a state prisoner appearing pro se and in forma pauperis, seeks
to appeal from the district court’s denial of his habeas petition, 28 U.S.C. § 2254.
The district court construed Mr. Brown’s notice of appeal to this court as a
request for a certificate of appealability and denied the request. After a careful
review of the record, we conclude Mr. Brown has not made “a substantial
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
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.
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and deny
his application for a certificate of appealability.
Mr. Brown’s opening brief in this court, which incorporates by reference
his objections to the magistrate’s report and recommendation, challenges the
magistrate’s disposition of his due process claim and asserts the magistrate failed
to address Mr. Brown’s claim that his counsel rendered ineffective assistance by
failing to investigate an insanity defense. Mr. Brown’s latter argument was not
properly before the magistrate because he raised it in his reply brief, see Aplt.
Brief at 3, and we will not consider it on appeal. See Coleman v. B-G
Maintenance Management of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997).
As to Mr. Brown’s due process claim, we are in substantial agreement with the
magistrate’s report and recommendation. See R. doc. 10 at 2-10.
APPEAL DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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