* This order and judgment is not binding precedent, e xcept under the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

### DEC 22 1997 

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

DANNY E. SMITH,

Petitioner-Appellant,

v. STEVE HARGETT,

Respondent-Appellee. No. 96-6383 (D.C. No. CIV-95-1781-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and MURPHY , Circuit Judges.
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 oral ar gument. Petitioner Danny Eugene Smith was convicted in 1989 by the State of Oklahoma on charges of conspiracy and drug traffick ing. Proceeding pro se, he sought a writ of habeas corpus from the district co urt pursuant to 28 U.S.C.-2-

§ 2254. The district court denied relief, and peti tioner now appeals. Following the initiation of his appeal, the district court de nied petitioner a certificate of appealability. Petitioner filed a motion for a certificate of appealability. Subsequently, the Supreme Court held that the certi ficate of appealability provisions of the Antiterrorism and Effective DeathPenalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), are not applicable to cases filed before April 24, 1996, AEDPA’s date of enactm ent. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997); see also United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Because petitioner file d his habeas application with the district court on November 9, 1995, prior to AE DPA's date of enactment, he does not need a certificate of appealability to pro ceed on appeal. He is, however, subject to the previous requirement of 28 U.S.C. § 2253 that he obtain a certificate of probable cause to appeal. As we hel d in Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), overruled in part on other grounds byKunzman , 125 F.3d at 1364 n.2, petitioner’s burden is the same under either provision. In order to be eligib le for a certificate of probable cause, petitioner must “make a substantial showing of the denial of a federal constitutional right.” Id. (quotation omitted). We conclude that petitioner has made this showing, grant a certificate of probable cause, and consider his arguments on the merits. We exercise jurisdiction pursuant to 28 U.S.C. § 1291.-3-

Governed by the substantive habeas law prior to adoption of AEDPA, we review the district court’s denial of habeas relief de novo on legal issues, see Sinclair v. Henman , 986 F.2d 407, 408 (10th Cir. 1993). We review th e district court’s factual findings for clear error, see Edens v. Hannigan , 87 F.3d 1109, 1113-14 (10th Cir.1996), affording a presumption of correctness to factual findings of the state trial court unless we determi ne those factual findings are not fairly supported by the record, 28 U.S.C. § 2254(d) (prior to amendment). Finally, we construe petitioner’s pro se pleadings and briefs liberally. See United States v. Hardwell , 88 F.3d 897, 897 (10th Cir. 1996). On appeal, petitioner raises three issues. First, he contends that his trial and appellate counsel were ineffective in various w ays. However, our review of the record indicates that the majority of petitione r’s complaints were not presented to the district court. This court does n ot generally address issues not raised below, and declines to do so here. See United States v. Edwards , 69 F.3d 419, 427 n.5 (10th Cir. 1995). The only arguments regarding alleged ineffectiveness of counsel properly preserved for r eview are petitioner’s contentions that counsel would not raise or argue h is double jeopardy claims in state court. “We review an ineffectiveness [of cou nsel] claim de novo, as it presents a mixed question of law and fact.” Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 759 (10th Cir. 1996), cert. denied , 117 S. Ct. 1703-4-

(1997). Petitioner’s second argument on appeal is that his conviction violates the Double Jeopardy Clause. We agree with the districtcourt, for substantially the reasons set forth in the magistrate judge’s report and recommendation, adopted by the district court, that petitioner’s double jeopar dy rights were not violated and that he has not demonstrated ineffective assistance in connection with these claims. In his third argument, petitioner contends that the evidence at trial was insufficient to support his conviction on conspiracy charges. We have reviewed the trial transcript and agree with the district co urt that sufficient evidence was presented at trial such that a jury could have foun d that a conspiracy existed and that petitioner was part of that conspiracy. The judgment of the United States District Court fo r the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith. Entered for the Court Bobby R. Baldock Circuit Judge