* This order and judgment is not binding precedent, except under the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

August 22, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ALEX MATTHEW,

Petitioner-Appellant,

v.

MARTY SIRMONS, Warden,

Respondent-Appellee.

No. 04-6047

(D.C. No. 03-CV-339)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and PORFILIO , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Petitioner Alex Matthew, an Oklahoma inmate, appeals the district court's

denial of his 28 U.S.C. § 2254 habeas petition. After a nonjury trial in his
1 We note that the legal discussion in Matthew’s appellate brief is

substantially identical to the discussion in his district court brief. For this court,

(continued...)

-2-

underlying criminal case, Matthew was convicted of robbery with a firearm and

sentenced to fifteen years’ imprisonment. The Oklahoma Court of Criminal

Appeals affirmed his conviction and later denied his application for

post-conviction relief. Matthew then filed his federal § 2254 habeas petition. 

After thoroughly reviewing Matthew’s petition in a twenty-one-page report and

recommendation dated January 9, 2004, the magistrate judge determined that

Matthew was not entitled to habeas relief. Over Matthew’s objections, the

district court adopted the magistrate judge’s report and recommendation in its

entirety and denied the petition in an order dated January 29, 2004. This court

granted a certificate of appealability with respect to Matthew’s claims, permitting

him to pursue this appeal. See 28 U.S.C. § 2253(c)(1). We now vacate the

certificate of appealability and dismiss. 

To be entitled to federal habeas relief, Matthew must demonstrate that the

state courts’ resolution of his claims was “contrary to, or involved an

unreasonable application of, clearly established” Supreme Court precedent, or

represented “an unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d); see also Williams v. Taylor , 529 U.S. 362,

412-13 (2000). In district court and on appeal, Matthew has raised three issues. 1
1

(...continued)

Matthew has changed the term “petitioner” to “appellant” and modified the font

size. However, he has not adapted his argument to address the reasoning of the

magistrate judge and conclusions reached by the district court. Needless to say,

we disapprove of this practice. We are also unwilling to condone Matthew’s

failure to correct obvious errors. To illustrate, he states in both briefs that a

portion of a police officer’s testimony “had no purpose other than the [sic]

prejudice the jury,” even though no jury was present at his trial–the case was tried

to the court. See Aplt. Br. at 17; Aplt. App., Tab. 2 at 14.

Further, neither Matthew’s brief nor the warden’s brief complies with 10th

Cir. R. 28.2(A), (B). The rule requires appellant’s brief to include the magistrate

judge’s report and recommendation and the district court’s order; it calls for

appellee’s brief to include this material if appellant’s brief is deficient in this

regard. Id.

2 Matthew’s district court and appellate briefs mention ineffective assistance

of appellate counsel, but do not provide any support for this type of claim. Like

the magistrate judge, we determine that Matthew does not sufficiently assert that

appellate counsel provided ineffective assistance and therefore we deem the issue

waived. See Utahns for Better Transp. v. United States Dep’t of Transp ., 305

F.3d 1152, 1175 (10th Cir. 2002), modified on reh’g , 319 F.3d 1207 (2003)

(stating that “issues will be deemed waived if they are not adequately briefed”).

-3-

He maintains that the victim’s eyewitness testimony was improperly admitted at

his trial, that he was denied substantive due process by the state appellate court’s

refusal to consider his argument concerning the unfairness of a photo lineup (for

lack of an adequate record), and that he received ineffective assistance of trial

counsel. 2

We have reviewed the appellate briefs and the entire record on appeal. The

relevant facts of this case are fully and accurately described in the magistrate

judge’s report and recommendation and we will not repeat them here. Because
-4-

we agree with the magistrate judge’s assessment of Matthew’s claims, and

because these claims have not undergone any refinement on appeal, we decline to

duplicate the analysis. Briefly, Matthew failed to show that the state court’s

conclusion regarding the reliability of the victim’s eyewitness testimony was in

any way contrary to, or an unreasonable application of Supreme Court law. See

Neil v. Biggers , 409 U.S. 188, 199-200 (1972) (setting out factors for an

evaluation of the constitutionality of a pretrial identification procedure). 

Furthermore, the Oklahoma Court of Criminal Appeals did not violate Matthew’s

substantive due-process rights in denying review of his photo lineup. See Hatch

v. Okla. , 58 F.3d 1447, 1460 (10th Cir. 1995) (summarizing Supreme Court

precedent standing for the principle that “there is no constitutional right to an

appeal under the Due Process Clause”). Finally, we see no basis for his claims of

ineffective assistance of trial counsel. See Strickland v. Washington , 466 U.S.

668, 687 (1984) (requiring a habeas petitioner to establish both that his counsel's

performance was deficient and that the deficiency prejudiced his defense). 

It is now beyond debate Matthew is not entitled to habeas relief under
-5-

 § 2254. The order granting a certificate of appealability is VACATED as

improvidently granted, and the appeal is DISMISSED.

Entered for the Court

John C. Porfilio

Circuit Judge
04-6047, Matthew v. Sirmons

HARTZ , Circuit Judge, dissenting:

I agree that Mr. Matthew should be denied relief for essentially the reasons

set forth in the magistrate judge’s report and recommendation. Rather than

quashing the certificate of appealability (COA), however, I would recognize the

COA and affirm the district court judgment.

The decision to grant a COA is a preliminary one. The nature of the

process is described in Miller-El v. Cockrell , 537 U.S. 332, 336-42 (2003):

The COA determination under § 2253(c) requires an overview

of the claims in the habeas petition and a general assessment of their

merits. We look to the District Court’s application of AEDPA to

petitioner’s constitutional claims and ask whether that resolution was

debatable amongst jurists of reason. This threshold inquiry does not

require full consideration of the factual or legal bases adduced in

support of the claims. In fact, the statute forbids it .

. . .

We do not require petitioner to prove, before the issuance of a COA,

that some jurists would grant the petition for habeas corpus. Indeed,

a claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail.

. . . 

Deciding the substance of an appeal in what should only be a

threshold inquiry undermines the concept of a COA. The question is

the debatability of the underlying constitutional claim, not the

resolution of that debate.

(emphasis added). To say, as does the majority opinion, that the COA in this case

was “improvidently granted” is to say that the judge who granted the COA either

(1) should have inquired more deeply into the matter before issuing the certificate
-2-

or (2) could not reasonably have seen potential issues of substance in Mr.

Matthew’s claims. In my view, the first ground for vacating the COA would be

contrary to the directives of the Supreme Court concerning how to perform the

task of deciding whether to grant a COA, and the second ground amounts to a

determination that the judge issuing the COA was not just wrong, but

unreasonable. Moreover, once the matter has been fully briefed, I see no purpose

served by quashing the COA rather than affirming the judgment below.