## F I L E D United States Court of Appeals Tenth Circuit 

### December 15, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EDSEL RAY HILL,

Petitioner-Appellant. No. 05-6155

v. (D.C. No. 04-CV-1728-F) MIKE ADDISON, Warden; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, (W. D. Okla.)

Respondents-Appellees.

ORDER

Before EBEL , McKAY , and HENRY , Circuit Judges.

This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner was convicted after a bench trial of first-degree murder and unla wful disposal of a body. He was sentenced to life imprisonment without the possibil ity of parole and five years’ imprisonment. Petitioner then filed a § 2254 petit ion for habeas corpus relief with the United States District Court for the Weste rn District of Oklahoma. In that petition, Petitioner argued for relief on the following grounds: (1) failure of trial court to conduct a mental competency hearing; (2) prosecutorial misconduct; (3) lack of a pretrial Dauberthearing as to the testimony of certain witnesses, Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993); (4)-2-

ineffective assistance of trial counsel; and (5) in effective assistance of appellate counsel. In his report and recommendation (“R&R”), the magistrate judge recommended that the petition be denied as time-bar red. After considering Petitioner’s objections and conducting a de novo re view of the petition, the district court found that Petitioner had not made a sufficient showing to equitably toll AEDPA’s one-year statute of limitations, adopt ed the R&R, and dismissed the § 2254 petition as untimely. The district court al so declined to grant Petitioner a certificate of appealability. Petitioner has renew ed his request for a certificate of appealability with this court. The issues he raise s on appeal are identical to those brought before the district court. In order for this court to grant a certificate of a ppealability, Petitioner must make “a substantial showing of the denial of a cons titutional 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) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotations omitted). When a § 2254 petition is denied by the district court for procedural reasons, as is the ca se here, Petitioner must clear the added hurdle of showing “that jurists of reason wou ld find it debatable whether the district court was correct in its procedural ru ling.” Id.-3-

We have carefully reviewed Petitioner’s brief, the district court’s disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Petitioner’s filing raises an issue which meets our standards for the grant of a certificate of appealability. For substantially th e same reasons as set forth by the magistrate judge’s R&R, which the district court ad opted in its April 27, 2005 Order, we cannot say that it is “debatable whether the district court was correct in its procedural ruling.” Id.
We DENY Petitioner’s request for a certificate of appealab ility and
DISMISS the appeal. Entered for the Court

Monroe G. McKay Circuit Judge