* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Petitioner Gary Earl Byers, an Oklahoma state inmat e convicted of driving under the influence of alcohol and subornation of p erjury, 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 mus t 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 q uestions 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-ca r automobile accident on July 24, 1992. He was hospitalized and later ch arged with driving under the influence of alcohol (DUI). At the preliminary hea ring, 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 districtattorney. At trial, facing DUI and subornation of perjury charges, petitioner continued to assert that he was not the driver of t he car. Mr. Wheelbarger testified that he had not been with petitioner at t he time of the accident, but that he had accepted petitioner’s offer of a $1,500 payment in exchange for false-3-

testimony. Petitioner was convicted and sentenced to five years for DUI and twenty years for subornation of perjury, with the s entences to run consecutively. In the petition filed in district court, Mr. Byers asserted that he is entitled to federal habeas relief for several reasons. Fourof his contentions relate to the right to a fair trial: (1) the change in Mr. Wheel barger’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 onthe subornation of perjury count; (3) the lack of a cautionary jury instructio n on the unreliability of informant testimony; and (4) the giving of a jury i nstruction allowing the conviction of Petitioner as an habitual offender. Petitioner also claimed that he was denied effective assistance of trial and appell ate counsel and that there was insufficient evidence to support his DUI conviction
. The district court, adopting the report and recomme ndation of the United States magistrate judge, determined that the claim of insufficient evidence on the DUI count was procedurally barred and that the rema ining claims lacked merit. It denied the petition for habeas relief and, subse quently, 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 r equest for a certificate of-4-

appealability and DISMISS the appeal. The motion f or in forma paupers status is denied as moot. The mandate shall issue forthwith.
Entered for the Court
Bobby R. Baldock Circuit Judge