* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### FEB 6 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BILLY EARL ROBBINS, Petitioner-Appellant,

v. STEVE HARGETT, Warden, Respondent-Appellee. No. 00-6318 (W. District of Oklahoma) (D.C. No. 99-CV-1542-T)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE, and MURPHY , 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 court therefore honors the petitioner’s request and order s the case submitted without oral argument.-2-

This case is before the court on Billy Earl Robbins ’ pro se request for a certificate of appealability (“COA”). Robbins seek s a COA so that he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 petition unless the petitioner first obtai ns a COA). Because Robbins has not “made a substantial showing of the denial of a constitutional right,” this court denies his request for a COA and dismisses the appeal. See id. § 2253(c)(2). Following a jury trial in Oklahoma state court, Rob bins was convicted of murder in the first degree and sentenced to life imprisonment. On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Ro bbins contended as follows: (1) the prosecutor had engaged in miscondu ct with regard to certain comments made in closing argument; and (2) the tria l court’s denial of his change of venue motion denied him his constitutional rightto an impartial jury. The OCCA rejected Robbins’ contentions in a summary opi nion. Robbins then filed the instant § 2254 habeas petition, reasserting the same claims he raised before the OCCA. The district court referred Robbins’ petition to a magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1). In a comprehensive and wellreasoned Report and Recommendation, the magistrate judge recommended that Robbins’ petition be denied. In particular, the ma gistrate judge concluded that-3-

Robbins had failed present any evidence “of either actual juror prejudice or the type of community-wide hostility necessary to presu me prejudice.” Mayes v. Gibson , 210 F.3d 1284, 1291-92 (10th Cir. 2000). Furthermore, after conducting a exceedingly close review of the comments of the p rosecutor alleged by Robbins to be improper, the magistrate judge concluded thatthe comments, viewed in the context of the entire trial record, did not render Robbins’ trial fundamentally unfair. See Darden v. Wainwright , 477 U.S. 168, 181 (1986). Upon de novo review, the district court adopted the recommendati ons of the magistrate judge and denied Robbins’ § 2254 habeas petition. As noted above, Robbins must obtain a COA before he can appeal the district court’s denial of his § 2254 habeas petiti on. See 28 U.S.C. § 2253(c)(1)(A). He is entitled to a COA only upon m aking a “substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Robbins can make this showing by demonstrating that the issues he seeks t o raise on appeal are debatable among jurists, a court could resolve the issues dif ferently, or the questions presented deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000). This court has reviewed Robbins’ r equest for a COA and accompanying brief, along with the magistrate judge ’s report and recommendation, the district court’s order, and the entire record on appeal. Our review reveals that the district court’s resolutionof the petition is not debatable,-4-

subject to an alternate resolution, or deserving of further proceedings. Accordingly, this court DENIES Robbins’ request for a COA for substantially those reasons set forth in the magistrate judge’s r eport and recommendation dated July 31, 2000, and the district court’s order datedSeptember 5, 2000. Robbins’ appeal is, therefore, DISMISSED

. See 28 U.S.C. § 2253(c). ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge