F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 24 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILBERT L. NUBINE,
Petitioner-Appellant,
v. No. 98-6418
(D.C. No. 97-CV-146)
TOM C. MARTIN, (W.D. Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before TACHA , KELLY , 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)(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This order and judgment is not binding precedent, except under the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.
Petitioner Wilbert L. Nubine, proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. On de novo review, the district
court adopted the magistrate judge’s recommendation to deny the petition.
Petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, we deny issuance of a
certificate of appealability and dismiss this appeal.
Petitioner was convicted by an Oklahoma state jury of first degree murder.
He was sentenced to life in prison. The parties are familiar with the underlying
facts; we do not repeat them here.
On appeal, petitioner argues that the following errors deprived him of his
constitutional rights: (1) prosecutorial misconduct during closing argument at his
state court trial, (2) ineffective assistance of trial and appellate counsel, and
(3) the prosecution’s failure to reveal the identity of a witness who heard someone
else confess to the killing. Petitioner also complains that the federal district court
refused to permit discovery.
The magistrate judge denied petitioner’s discovery requests because he did
not establish “good cause” for discovery, as required by Rule 6(a) of the Rules
Governing Section 2254 cases. See Bracy v. Gramley , 520 U.S. 899, 908-09
(1997) (“good cause” for discovery established “where specific allegations before
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the court show reason to believe that the petitioner may, if the facts are fully
developed, be able to demonstrate that he is . . . entitled to relief”) (quotation
omitted). We find no abuse of discretion in the district court’s denial of
petitioner’s discovery requests. See LaFevers v. Gibson , No. 98-6302, 1999 WL
394508, at *17 (10th Cir. June 16, 1999) (discovery rulings on “good cause” in
habeas cases reviewed for abuse of discretion).
The underlying habeas petition was filed after enactment of the
Antiterrorism and Effective Death Penalty Act of 1996. Pursuant to the
applicable version of 28 U.S.C. § 2254,
a state prisoner will be entitled to federal habeas corpus relief
only if he can establish that a claim adjudicated by the state courts
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or “resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” Further, “a determination of a factual issue made by a
State court shall be presumed to be correct.” That presumption of
correctness is rebuttable only “by clear and convincing evidence.”
Boyd v. Ward , 179 F.3d 904, 911-12 (10th Cir. 1999) (quoting 28 U.S.C.
§ 2254(d) & (e)(1)).
We have carefully reviewed petitioner’s appellate brief and appendix, the
magistrate judge’s report and recommendation, the district court’s order, and the
entire record on appeal. For substantially the reasons stated in the magistrate judge’s
July 31, 1998 report and recommendation, and the district court’s September 24,
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1998 order, we determine that petitioner has not made a substantial showing of the
denial of a constitutional right and is not entitled to a certificate of appealability.
See 28 U.S.C. § 2253(c).
The application for a certificate of appealability is DENIED. Petitioner’s
motions to supplement the record on appeal are DENIED. This appeal is
DISMISSED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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