F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 20 2001
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 BRIAN ANDERSON,
          Petitioner-Appellant,                         No. 01-1173
 v.                                                 (D.C. No. 98-N-140)
 JUANITA NOVAK and ATTORNEY                              (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,
          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      After examining the briefs and the 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.

      Mr. Anderson appeals the district court’s rejection of his § 2254 habeas

petition. The district court adopted the magistrate judge’s recommendation that


      *
       This order and judgment is not binding precedent, except under the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.
Mr. Anderson’s petition be rejected as time-barred under AEDPA. Alternatively,

the district court ruled that all but one of Mr. Anderson’s claims were

procedurally defaulted. The district court dismissed Mr. Anderson’s remaining

claim of constitutional error in his in-court identification on the merits under the

totality of the circumstances test.

        After a thorough review of the record, we conclude that the district court

correctly denied Mr. Anderson’s petition. For the same reasons set forth in the

magistrate judge’s recommendation, we dismiss Mr. Anderson’s habeas petition.

However, we take no position as to whether Mr. Anderson’s claims are time-

barred under AEDPA. Mr. Anderson’s procedural default of the majority of his

claims and his failure to show that the method of his in-court identification was

constitutionally deficient under the totality of the circumstances test is sufficient,

standing alone, to reject his petition.

        We DENY Mr. Anderson’s application for a certificate of appealability and

DISMISS his appeal. We also DENY his motion to proceed in forma pauperis as

moot.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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