F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAR 16 1999
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


JIMMY R. GATEWOOD, JR.,

             Plaintiff-Appellant,
                                                        No. 98-6392
v.                                                 (W. Dist. of Oklahoma)
                                                   (D.C. No. 97-CV-1797)
TWYLA SNYDER,

             Defendant-Appellee.




                          ORDER AND JUDGMENT *


Before TACHA, McKAY, 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.

      This case is before the court on pro se petitioner Jimmy Gatewood’s

application for a certificate of appealability and motion to proceed on appeal in


      *
       This order and judgment is not binding precedent, except under the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.
forma pauperis. Gatewood seeks a certificate of appealability so that he can

appeal the district court’s denial of Gatewood’s 28 U.S.C. § 2254 habeas petition.

In his petition, Gatewood alleged that Respondents had violated his constitutional

rights in the following two respects: (1) failing to give him good time credits for

time spent in a federal penitentiary serving concurrent federal and state sentences;

and (2) classifying him as a Level I, rather than Level II, prisoner upon his return

to the state penitentiary to complete the remainder of his state sentence, thereby

precluding his ability to earn future good time credits. After the case was

referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C. §

636(b)(1)(B), the magistrate issued a Report and Recommendation (“R&R”)

recommending that Gatewood’s petition be dismissed. In particular, the

magistrate noted that Gatewood had failed to identify any Oklahoma statute or

precedent providing for the earning of good time credits while an Oklahoma

prisoner is in federal custody. Furthermore, the magistrate concluded that

Gatewood did not hold any right or liberty interest in a particular classification

upon returning to the Oklahoma prison system upon completion of his federal

sentence. Upon de novo review, the district court adopted the R&R. The district

court also denied Gatewood a certificate of appealability and denied Gatewood’s

request to proceed in forma pauperis on appeal, finding that the appeal was not

taken in good faith.


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      Gatewood is not entitled to appeal the district court’s denial of Gatewood’s

§ 2254 petition unless he first obtains a certificate of appealability. 28 U.S.C. §

2253(c)(1)(A). Gatewood is entitled to such a certificate only if he makes “a

substantial showing of the denial of a constitutional right.” 

In

order to satisfy this standard, Gatewood must demonstrate that the issues raised

are debatable among jurists of reason, subject to a different resolution on appeal,

or deserving of further proceedings. Barefoot v. Estelle, 

, 893 n.4

(1983).

      This court has reviewed the R&R, the district court order, Gatewood’s brief

and supporting documents, Gatewood’s application for a certificate of

appealability, and the entire record on appeal. In light of that review, this court

concludes that Gatewood has failed to make a substantial showing of the denial of

a constitutional rights for substantially those reasons stated in the magistrate’s

well-reasoned R&R dated September 2, 1998. Accordingly, we DENY

Gatewood’s application for a certificate of appealability and DISMISS his

appeal. Gatewood’s motion to proceed in forma pauperis is hereby DENIED.

                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge



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