* This order and judgment is not binding precedent, e xcept under the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

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

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

### NOV 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
TIMOTHY LEE GRAVES,

Petitioner-Appellant,
v. MICHAEL CARR,

Respondent-Appellee. No. 96-5126 (D.C. No. 95-CV-284) (N.D. Okla.)

ORDER AND JUDGMENT *
Before PORFILIO and LUCERO, Circuit Judges, and MAR TEN, ** District Judge. After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument.1 Petitioner has moved this court for issuance of a c ertificate of appealability

to prosecute his appeal. Because he filed his habe as corpus petition on March 28, 1995, prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he does not need a certificate of appealability to proceed. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Therefore, pursuant to the requi rements of 28 U.S.C. § 2253 in effect at the time petitioner filed in the district court, we deny a certificate of probable cause. -2- Petitioner Timothy Lee Graves appeals the district court’s denial of his petition for writ of habeas corpus brought pursuantto 28 U.S.C. § 2254. For substantially the reasons stated by the distric t court, we affirm. 1 Petitioner was convicted by a jury of first degree murder. His conviction was upheld on direct appeal, and two subsequent state postconviction proceedings failed to provide relief for petitioner. Petitione r now applies for federal habeas relief arguing that (1) his confession was procured in violation of his right to counsel; (2) his trial and appellate counsel were i neffective, particularly because of trial counsel’s failure to inform him of a proff ered plea bargain; (3) the jury instruction on first degree murder was improper; an d (4) the jury improperly considered the possibility of parole for petitionerwhile deliberating his guilt or innocence. In conducting our de novo review of the district co urt’s denial of petitioner’s application for habeas relief, we have reviewed the record, petitioner’s brief, and the analysis of the distric t court. The district court-3-

correctly concluded that any error from the admissi on of petitioner’s confession was harmless and that he was not denied effective a ssistance of counsel. Petitioner has procedurally defaulted his remaining claims, thus precluding federal habeas review. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. The mandate shall issue f orthwith.

Entered for the Court

John C. Porfilio Circuit Judge