F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 13 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MCKINLEY MAHAN,
Petitioner-Appellant,
v. No. 98-6051
(D.C. No. 96-CV-456)
STEVE HARGETT; ATTORNEY (W.D. Okla.)
GENERAL OF THE STATE OF
OKLAHOMA,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , BRISCOE , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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.
This appeal arises from the district court’s denial of plaintiff’s petition for
a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 on March 22, 1996. 1
This is the second time this case has been before us on appeal. The district court,
upon a magistrate judge’s findings and recommendation, denied the petition on
July 23, 1996, finding that petitioner’s claims of ineffective assistance of
appellate counsel were meritless and that the other habeas claims were
procedurally barred. Petitioner appealed, and we affirmed the denial of habeas
relief as to the claims of ineffective assistance of appellate counsel, but we
reversed the district court’s application of procedural bar to the remaining claims
and remanded for the district court to address those claims on the merits. Mahan
v. Hargett , No. 96-6269, 1997 WL 297658, at **3 (10th Cir. June 5, 1997)
(unpublished order and judgment). The district court has complied with our
mandate by addressing the merits of petitioner’s remaining habeas claims. The
district court denied habeas relief, and petitioner appeals.
We have already affirmed the district court’s denial of habeas relief on
petitioner’s claims of ineffective assistance of appellate counsel. Id. Petitioner
now alleges error in the district court’s denial of relief with respect to the
1
Because the petition was filed before the effective date of the Antiterrorism
and Effective Death Penalty Act (AEDPA), we construe petitioner’s application
for a certificate of appealability as an application for a certificate of probable
cause. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997),
cert. denied , 118 S. Ct. 1375 (1998).
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following issues: (1) denial of an impartial, unbiased, unprejudiced, and
disinterested jury trial; (2) denial of the right to effective assistance of trial
counsel due to conflict of interest by an investigating officer; (3) denial of the
right to effective assistance of trial counsel because trial counsel did not provide
appellate counsel with certain witness statements; (4) denial of due process,
equal protection, and effective assistance of trial counsel because trial counsel
did not move to suppress a former conviction used for sentence enhancement;
(5) a rational trier of fact could not have found guilt of second degree murder
beyond a reasonable doubt; (6) the information did not allege or charge an offense
nor allege the essential elements of second degree murder and notice did not
comply with due process; (7) denial of the right to an impartial, unprejudiced
jury; and (8) the prosecution knowingly and unlawfully suppressed exculpatory
evidence, resulting in denial of due process, equal protection, and the right to
a fair, impartial, and unprejudiced jury trial.
“We review the district court’s factual findings for clear error and its legal
conclusions de novo.” Green v. Reynolds , 57 F.3d 956, 957 (10th Cir. 1995).
Guided by these standards, and having reviewed both the federal habeas and the
state trial record, we affirm for substantially the reasons stated by the magistrate
judge in his supplemental findings and recommendation.
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We GRANT a certificate of probable cause, and we AFFIRM the judgment
of the district court denying habeas relief. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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Mahan v. Hargett
Combined Opinion