F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                            JUN 25 2002
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 FLOYD SMITH,
             Petitioner - Appellant,                    No. 01-6417
 v.                                              (D.C. No. CIV-00-858-A)
 RON WARD,                                           (W.D. Oklahoma)
             Respondent - Appellee.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      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.

      This is a pro se § 2254 state prisoner appeal. Mr. Smith was convicted of

first degree rape after former conviction of two felonies. He was sentenced to

fifty years’ imprisonment, and his conviction and sentence were affirmed on



      *
       This order and judgment is not binding precedent, except under the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.
direct appeal. His state post-conviction action was unsuccessful, and his appeal

of that action was dismissed as untimely.

      In his federal habeas petition, Mr. Smith claimed erroneous admission of

hearsay testimony, excessive sentence, ineffective assistance of trial counsel,

false testimony, and conviction not supported by DNA evidence. The magistrate

judge recommended that the first two claims be denied on the merits and the

remaining three claims be dismissed as procedurally barred, absent cause or

prejudice. After consideration of Mr. Smith’s objections, the district court

adopted the recommendation and denied the petition. Petitioner then applied to

this court for a certificate of appealability.

      In order for this court to grant a certificate of appealability, Petitioner must

make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 

,

484 (2000) (quotations omitted).

      We have carefully reviewed Mr. Smith’s brief, the district court’s

disposition, and the record on appeal. Nothing in the facts, the record on appeal,

or Petitioner’s brief raises an issue which meets our standards for the grant of a


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certificate of appealability. For substantially the same reasons as set forth by the

district court in its Order of October 30, 2001, we cannot say that “reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner.” 

Petitioner’s request

for a certificate of appealability and DISMISS the appeal.

      Petitioner’s motion to proceed in forma pauperis on appeal is GRANTED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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