* This order and judgment is not binding precedent, e xcept under the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

### OCT 27 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DENNIS ESTELL,

Petitioner-Appellant,

v. ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondent-Appellee. No. 98-6083 (D.C. No. 96-CV-1617) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Dennis Estell appeals from the district court’s order denying his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254 . Appellant was convicted of burglary in the second degree after former convicti on of two or more felonies, for which he was sentenced to a fifty-year term in pris on. Our jurisdiction over his appeal arises under 28 U.S.C. §§ 1291 and 2253. Be cause appellant’s habeas petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the certificate of appealabili ty provision created by that act is applicable to his case. See 28 U.S.C. § 2253(c)(1)(A). The district court denied appellant a certificate of appealability. T herefore, appellant must demonstrate “a substantial showing of the denial of a constitutional right” before this court considers his appeal. See id. § 2253(c)(2). Respondent has not filed a brief in this appeal. Appellant presents several arguments in support of his motion for a certificate of appealability. He contends that the district court erred because it failed to make a de novo review of the record follo wing appellant’s objections to the magistrate judge’s report, failed to liberally construe appellant’s habeas petition to include a due process claim in connecti on with challenges to his sentence enhancement on the basis of prior convicti ons, and failed to hold a hearing on his petition. He argues constitutional error in his sentencing based on 1) his allegations that the prior convictions were not all his, 2) his assertion that-3-

the sentencing court inadequately instructed the ju ry on the government’s burden to prove the prior convictions beyond a reasonable doubt, and 3) the sentencing court’s reliance on a joint stipulation, to which appellant allegedly did not agree, regarding evidence of the prior convictions. Final ly, he contends trial counsel was ineffective for stipulating to evidence about the prior convictions. After careful review of the record on appeal, toget her with appellant’s arguments, and in light of the applicable law, we c onclude that appellant has not demonstrated his eligibility for a certificate of appealability. Therefore, for substantially the same reasons contained in the mag istrate judge’s report, dated November 17, 1997, a copy of which is appended to this order and jud gment, appellant’s motion for a certificate of appealabili ty is DENIED, and this appeal is
DISMISSED.

Entered for the Court

Wade Brorby Circuit JudgeAttachment not available electronically.