* This order and judgment is not binding precedent, e xcept under the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

### SEP 22 1998 

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

HENRY LEE McCONE,

Petitioner-Appellant,

v. WYOMING ATTORNEY GENERAL; WYOMING DEPARTMENT OF CORRECTIONS DIRECTOR, in her official capacity, a/k/a Judy Uphoff,

Respondents-Appellees. No. 97-8104 (D.C. No. 97-CV-9) (D. Wyo.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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. Petitioner Henry McCone was convicted of four count s of making terroristic threats in violation of Wyo. Stat. Ann. § 6-2-505. The Wyoming Supreme Court affirmed the convictions on direct appeal. See McCone v. State , 866 P.2d 740 (Wyo. 1993). Petitioner then filed a petition for a writ of habeas corpus challenging his convictions pursuant to 28 U .S.C. § 2254 that was dismissed for failure to exhaust state remedies. See McCone v. Uphoff , No. 95-8017, 1996 WL 194850 (10th Cir. Apr. 23, 199 6) (unpublished). On January 14, 1997, petitioner filed the habeas pe tition that is the subject of this appeal. Without ordering a response from the state , the district court determined that petitioner had not shown he was entitled to re lief, and it denied the petition. Petitioner filed a notice of appeal. The district court denied his requests to proceed on appeal in forma pauperis and for a certi ficate of appealability. Petitioner has renewed these requests in this court

. To be entitled to a certificate of appealability, p etitioner must make “a substantial showing of the denial of a constitut ional right.” 28 U.S.C. § 2253(c)(2). Petitioner seeks a certificate of ap pealability on the same eleven issues he raised in his petition in the district co urt, which are the same eleven issues that he raised in his unsuccessful direct appeal. See McCone , 866 P.2d1 The eleven issues on which McCone seeks review are as follows:

I Whether Wyoming Statute § 6-2-205 [sic] is unc onstitutional because it is vague and overbroad. [The correct st atute is § 6-2-505.] . . . II Whether the Second Judicial District Court had jurisdiction and was proper venue . . . . III Whether Appell ant was denied due process when witnesses identified his voice from un necessarily suggestive procedures . . . . IV Whether Appell ant was denied a fair trial when the trial court incorrectly instr ucted the jury on the law of the case . . . . V Whether the district court denied Appellant the right to a fair trial when it refused to instru ct the jury on the lesser-included offense of threatening telephone ca lls . . . . VI Whether witness testimony concerning the credibility and truthfulness of the appellant was error per se . . . . VII Whether the prosecution violated Wyoming Rules of Evidence 401 and 403 by eliciting improper victim impact testimony at trial . . . . VIII Whether the trial court erred when it allowed evide nce of Appellant’s other bad acts under Wyoming Rules of Evidence 404( b) . . . . IX Whether the trial court erred when it ruled that Of ficer Marti’s report was inadmissible under W.R.E. 803(6), the business records exception to the hearsay rule . . . . X WhetherAppellant was denied his right to a fair trial when the prosecuto r made improper remarks in closing arguments . . . . XI Whetherthe evidence produced at trial was sufficient to prove beyond a reasonable doubt that Appellant committed terroristic threats.
McCone , 866 P.2d at 743-44. -3- at 743-44. 1 Indeed, the briefs he filed in the district courtand on appeal appear to be his direct appeal brief prepared by counsel w ith a new signature page indicating that petitioner submitted the briefs pro se. We have fully considered petitioner’s arguments andreviewed the record, and we find his claims of error unpersuasive for su bstantially the same reasons as the district court stated in its order denying the petition. We conclude that he-4-

has not made a substantial showing of the denial of a constitutional right and that he is therefore not entitled to a certificate of ap pealability. Petitioner’s application for a certificate of appea lability is DENIED, and the appeal is DISMISSED. Petitioner’s request to p roceed in forma pauperis is DENIED. All other outstanding motions are DENIE D.

Entered for the Court

John C. Porfilio Circuit Judge