F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 21, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
BOBBY ANDREA LIVINGSTON,
Petitioner - Appellant,
No. 05-6048
vs. (D.C. No. 01-CV-1736-C)
(W.D. Okla.)
RON WARD, Director;
DEPARTMENT OF CORRECTIONS;
STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
Petitioner-Appellant Bobby Andrea Livingston, an Oklahoma inmate
appearing pro se, seeks a certificate of appealability (“COA”) permitting him to
appeal the district court’s order denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Because we determine that Mr. Livingston has not
made “a substantial showing of the denial of a constitutional right,” 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000), we deny a COA and
dismiss this appeal. We further deny Mr. Livingston’s motion to proceed in
forma pauperis.
The parties are familiar with the facts and procedural history in this case,
and we need not repeat them here. In his application for COA, Mr. Livingston
reiterates his argument before the district court alleging that the state withheld
impeachment evidence at trial in violation of Brady v. Maryland, 373 U.S. 83
(1963). For this court to grant a COA, Mr. Livingston must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-
El v. Cockrell, 537 U.S. 322, 336 (2003). When, as in this case, the district court
has denied a claim on the merits, the petitioner must demonstrate “‘that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different matter or that the issues
presented were adequate to deserve encouragement to proceed further.’” Miller-
El, 537 U.S. at 336 (quoting Slack, 529 U.S. at 484).
Having carefully reviewed the record, we deny a COA for substantially the
same reasons contained in the magistrate judge’s Report and Recommendation
and the district court’s Amended Order. Under his Brady claim, the only issue
raised herein, Mr. Livingston must show (1) that the government suppressed
evidence, (2) that such evidence was favorable to the defendant, and (3) that the
evidence was material, i.e., there is a reasonable probability had the evidence
been disclosed that the result of the trial would have been different. See Brady,
373 U.S. at 87; Knighton v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002). We
-2-
find that the district court’s conclusion that Mr. Livingston cannot demonstrate
that the allegedly suppressed evidence was material in light of the nature of the
impeachment material and the strength of the state’s case is not debatable.
Accordingly, we DENY COA and DISMISS this appeal. Furthermore,
because Mr. Livingston has not shown “a reasoned, non frivolous argument on the
law and facts” in support of his argument, DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991), we likewise DENY the motion to proceed in forma
pauperis. Mr. Livingston is reminded that he is obligated to make partial
payments to this court until the entire appellate filing fee is paid in accordance
with 28 U.S.C. § 1915(b).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-