F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 22 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
HENRY LEE McCONE,
Petitioner-Appellant,
v. No. 97-8104
(D.C. No. 97-CV-9)
WYOMING ATTORNEY GENERAL; (D. Wyo.)
WYOMING DEPARTMENT OF
CORRECTIONS DIRECTOR, in her
official capacity, a/k/a Judy Uphoff,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , 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This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Petitioner Henry McCone was convicted of four counts of making
terroristic threats in violation of Wyo. Stat. Ann. § 6-2-505. The Wyoming
Supreme Court affirmed the convictions on direct appeal. See McCone v. State ,
866 P.2d 740 (Wyo. 1993). Petitioner then filed a petition for a writ of habeas
corpus challenging his convictions pursuant to 28 U.S.C. § 2254 that was
dismissed for failure to exhaust state remedies. See McCone v. Uphoff ,
No. 95-8017, 1996 WL 194850 (10th Cir. Apr. 23, 1996) (unpublished).
On January 14, 1997, petitioner filed the habeas petition that is the subject of this
appeal. Without ordering a response from the state, the district court determined
that petitioner had not shown he was entitled to relief, and it denied the petition.
Petitioner filed a notice of appeal. The district court denied his requests to
proceed on appeal in forma pauperis and for a certificate of appealability.
Petitioner has renewed these requests in this court.
To be entitled to a certificate of appealability, petitioner must make
“a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Petitioner seeks a certificate of appealability on the same eleven
issues he raised in his petition in the district court, which are the same eleven
issues that he raised in his unsuccessful direct appeal. See McCone , 866 P.2d
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at 743-44. 1
Indeed, the briefs he filed in the district court and on appeal appear
to be his direct appeal brief prepared by counsel with a new signature page
indicating that petitioner submitted the briefs pro se.
We have fully considered petitioner’s arguments and reviewed the record,
and we find his claims of error unpersuasive for substantially the same reasons
as the district court stated in its order denying the petition. We conclude that he
1
The eleven issues on which McCone seeks review are as follows:
I Whether Wyoming Statute § 6-2-205 [sic] is unconstitutional
because it is vague and overbroad. [The correct statute is § 6-2-505.]
. . . II Whether the Second Judicial District Court had jurisdiction
and was proper venue . . . . III Whether Appellant was denied due
process when witnesses identified his voice from unnecessarily
suggestive procedures . . . . IV Whether Appellant was denied
a fair trial when the trial court incorrectly instructed the jury on the
law of the case . . . . V Whether the district court denied Appellant
the right to a fair trial when it refused to instruct the jury on the
lesser-included offense of threatening telephone calls . . . . VI
Whether witness testimony concerning the credibility and
truthfulness of the appellant was error per se . . . . VII Whether the
prosecution violated Wyoming Rules of Evidence 401 and 403 by
eliciting improper victim impact testimony at trial . . . . VIII
Whether the trial court erred when it allowed evidence of Appellant’s
other bad acts under Wyoming Rules of Evidence 404(b) . . . . IX
Whether the trial court erred when it ruled that Officer Marti’s report
was inadmissible under W.R.E. 803(6), the business records
exception to the hearsay rule . . . . X Whether Appellant was
denied his right to a fair trial when the prosecutor made improper
remarks in closing arguments . . . . XI Whether the evidence
produced at trial was sufficient to prove beyond a reasonable doubt
that Appellant committed terroristic threats.
McCone , 866 P.2d at 743-44.
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has not made a substantial showing of the denial of a constitutional right and that
he is therefore not entitled to a certificate of appealability.
Petitioner’s application for a certificate of appealability is DENIED, and
the appeal is DISMISSED. Petitioner’s request to proceed in forma pauperis
is DENIED. All other outstanding motions are DENIED.
Entered for the Court
John C. Porfilio
Circuit Judge
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