F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 1 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
DANNY HOWARD HANKS,
Petitioner-Appellant,
v. No. 00-6436
JAMES L. SAFFLE, (D.C. No. CIV-00-623-C)
(W.D.Okla.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before HENRY, BRISCOE and MURPHY, 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.
Danny Howard Hanks, a state prisoner appearing pro se, seeks a certificate of
appealability to appeal the dismissal of his 28 U.S.C. § 2254 petition for writ of habeas
*
This order and judgment is not binding precedent, except under the doctrines of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.
corpus. We deny a certificate of appealability and dismiss the appeal.
Hanks was convicted of conspiracy to traffic a controlled dangerous substance,
attempting to traffic in illegal drugs, and using a communication facility to facilitate
commission of a felony. He was sentenced to two consecutive terms of fifteen years
and a concurrent term of five years. On direct appeal, the Oklahoma Court of Criminal
Appeals affirmed his convictions and sentences. His application for post-conviction
relief in state court was denied and the Oklahoma Court of Criminal Appeals affirmed
that denial.
In his habeas petition, Hanks contended he received ineffective assistance of
counsel at both the trial and appellate levels by counsel failing to (1) adequately
investigate and research; (2) fully advise Hanks of all consequences; (3) argue the
impact of Okla. Stat. tit. 21, § 11; (4) divulge a conflict of interest; and (5) advise
Hanks of the right to seek a suspended sentence. The magistrate judge recommended
that the habeas petition be denied. Hanks filed objections to the magistrate's report.
The district court adopted the magistrate's report and denied relief.
Under 28 U.S.C. § 2253, a certificate of appealability is required “whenever a
state prisoner habeas petition relates to matters flowing from a state court detention
order.” Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000). Where, as here, the
district court addressed the merits of a petitioner's claims, “the showing required to
satisfy § 2253(c) is straightforward: The petitioner must demonstrate reasonable jurists
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would find the district court's assessment of the constitutional claims debatable or
wrong.” Dennis v. Poppel, 222 F.3d 1245, 1249 (10th Cir. 2000) (quoting Slack v.
McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Hanks contends he should be granted an evidentiary hearing to allow him to
fully develop his claims of ineffective assistance of counsel and to address his
allegation of a conflict of interest. We have reviewed Hanks' appellate brief and the
entire record on appeal and conclude that Hanks has not demonstrated that he is
entitled to a certificate of appealability.
We DENY a certificate of appealability and DISMISS the appeal for
substantially the same reasons as set forth in the magistrate's report and
recommendation dated October 13, 2000, and the district court's order of dismissal
entered November 7, 2000.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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