* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### OCT 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PETER JAMES ROBINSON, Petitioner-Appellant,

v. RON WARD; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellee. No. 97-6232 (W. District of Oklahoma) (D.C. No. CIV-96-1851-C)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument.-2-

Peter Robinson, appearing pro se and in forma pauperis , appeals the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. In his habeas corpus petition, Robi nson challenges two Oklahoma state convictions resulting from pleas of guilty to escape from a state penitentiary and possession of a firearm. Robinson alleges thathis sentences for those crimes were improperly enhanced by a void former convictio n and that the sentences he received were thus greater than that allowed by law

. The district court referred Robinson’s petition to a magistrate judge for initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B). In a thorough and well-researched Report and Recommendation, the magistrate judge recommended that Robinson’s petition be dismissed o n the grounds of procedural bar. The magistrate judge noted that the state cou rts had denied Robinson’s application for post-conviction relief on the groun ds that Robinson should have raised his objections to the sentence enhancement o n direct appeal. The magistrate judge moved on to analyze the state courts’ application of procedural bar, finding that application to be both “independe nt” and “adequate.” Finally, the magistrate judge conducted an extensive analysi s of Robinson’s claim of ineffective assistance of counsel and ultimately co ncluded that even if Robinson’s claims were true, they did not amount to either cau se or prejudice sufficient to overcome the procedural bar. After Robinson object ed to the Report and1 In his appellate brief, Robinson contends that this court must reverse and

remand because the district court failed to conducta de novo review of the Report and Recommendation. This assertion is clearly with out merit. In adopting the Report and Recommendation, the district court state d as follows: “Accordingly, having reviewed all matters of record de novo , the Court finds that the Report and Recommendation of the Magistrate Judge is correct i n all particulars and is hereby affirmed.” -3- Recommendation, the district court conducted a de novo review of the record and adopted the Report and Recommendation. 1 The case is before this court on Robinson’s application for a certificate of appealability. 28 U.S.C. § 2253(c)(1) (“Unless a c ircuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from [] the final order in a habeas corpus proceedi ng in which the detention complained of arises out of process issued by a State court . . . .”). To be entitled to a certificate of appealability, Robinson must ma ke “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Robinson can make such a showing by demonstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or thatthe questions presented deserve further proceedings. Barefoot v. Estelle , 463 U.S. 880, 892-893 & n.4. (1983);
Lennox v. Evans , 87 F.3d 431, 433-34 (10th Cir. 1996), cert. denied, 117 S. Ct. 749 (1997).-4-

This court has thoroughly reviewed Robinson’s appel late brief and application for a certificate of appealability, the magistrate judge’s excellent Report and Recommendation, the district court’s Ord er, and the entire record on appeal. Based on that review, we conclude that Rob inson has not made a substantial showing of the denial of an important f ederal right for the reasons set forth in the magistrate judge’s Report and Recommen dation. Accordingly, this
court DENIES Robinson’s application for a certificate of appeal ability and
DISMISSES this appeal. 28 U.S.C. § 2253(c)(2).
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge