* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 19 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GARY EARL BYERS,

Petitioner-Appellant,

v.

H.N. SCOTT; THE ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents-Appellees.

No. 98-6108

(D.C. No. CIV-96-1101-L)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , 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.
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Petitioner Gary Earl Byers, an Oklahoma state inmate convicted of driving

under the influence of alcohol and subornation of perjury, seeks a certificate of

appealability to appeal the district court’s denial of his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. In order to show entitlement

to a certificate of appealability, an appellant must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is met

by a showing that the issues raised “are debatable among jurists, or that a court

could resolve the issues differently, or that the questions deserve further

proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th Cir. 1997).

Petitioner was found alone at the scene of a one-car automobile accident

on July 24, 1992. He was hospitalized and later charged with driving under the

influence of alcohol (DUI). At the preliminary hearing, an individual named Greg

Wheelbarger testified that he, not petitioner, had been driving the automobile and

that he had fled before the accident was discovered. Mr. Wheelbarger recanted

this admission after a discussion with the district attorney.

At trial, facing DUI and subornation of perjury charges, petitioner

continued to assert that he was not the driver of the car. Mr. Wheelbarger

testified that he had not been with petitioner at the time of the accident, but

that he had accepted petitioner’s offer of a $1,500 payment in exchange for false
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testimony. Petitioner was convicted and sentenced to five years for DUI and

twenty years for subornation of perjury, with the sentences to run consecutively.

In the petition filed in district court, Mr. Byers asserted that he is entitled

to federal habeas relief for several reasons. Four of his contentions relate to the

right to a fair trial: (1) the change in Mr. Wheelbarger’s testimony, which

Mr. Byers attributes to threats on the part of the district attorney; (2) the absence

of corroboration for Mr. Wheelbarger’s testimony on the subornation of perjury

count; (3) the lack of a cautionary jury instruction on the unreliability of

informant testimony; and (4) the giving of a jury instruction allowing the

conviction of Petitioner as an habitual offender. Petitioner also claimed that he

was denied effective assistance of trial and appellate counsel and that there was

insufficient evidence to support his DUI conviction.

The district court, adopting the report and recommendation of the United

States magistrate judge, determined that the claim of insufficient evidence on the

DUI count was procedurally barred and that the remaining claims lacked merit. 

It denied the petition for habeas relief and, subsequently, petitioner’s request

for a certificate of appealability. After a review of the record, we agree with

the district court. 

Because we conclude that petitioner has not made a substantial showing of

the denial of a constitutional right, we DENY his request for a certificate of
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appealability and DISMISS the appeal. The motion for in forma paupers status is

denied as moot. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock

Circuit Judge