F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 9 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
FRED ALAN MORGAN,
Petitioner-Appellant,
v. No. 97-6338
(D.C. No. CIV-97-271-T)
H.N. “SONNY” SCOTT, Warden, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, McKAY, 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); 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This order and judgment is not binding precedent, except under the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 seeks a certificate of appealability, see 28 U.S.C. § 2253(c), that
would enable him to appeal the district court’s denial of habeas relief, see id.
§ 2254, from his Oklahoma conviction for first degree manslaughter. Issuance of
a certificate of appealability is appropriate only if petitioner makes a substantial
showing of the denial of a constitutional right. See id. § 2253(c)(2).
As grounds for habeas relief, petitioner argues that there was insufficient
evidence to support his conviction, his life sentence was excessive, and the trial
court erred in admitting into evidence a .25 caliber shell casing without adequate
foundation and in refusing to instruct the jury on excusable homicide. We DENY
the certificate of appealability for substantially the reasons stated in the
magistrate judge’s report and recommendation dated June 30, 1997, and the
district court’s September 24, 1997 order adopting the magistrate judge’s
recommendation, and we DISMISS this appeal.
The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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