* This order and judgment is not binding precedent, except under the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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of
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this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner Henry McCone was convicted of four counts 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No. 95-8017, 1996 WL 194850 (10th Cir. Apr. 23, 1996) (unpublished). 

On January 14, 1997, petitioner filed the habeas petition 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 relief, 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 certificate of appealability. 

Petitioner has renewed these requests in this court.

To be entitled to a certificate of appealability, petitioner must make

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Petitioner seeks a certificate of appealability on the same eleven

issues he raised in his petition in the district court, which are the same eleven

issues that he raised in his unsuccessful direct appeal. See McCone , 866 P.2d
1 The eleven issues on which McCone seeks review are as follows:

I Whether Wyoming Statute § 6-2-205 [sic] is unconstitutional

because it is vague and overbroad. [The correct statute is § 6-2-505.] 

 . . . II Whether the Second Judicial District Court had jurisdiction

and was proper venue . . . . III Whether Appellant was denied due

process when witnesses identified his voice from unnecessarily

suggestive procedures . . . . IV Whether Appellant was denied

a fair trial when the trial court incorrectly instructed 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 instruct the jury on the

lesser-included offense of threatening telephone calls . . . . 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 evidence of Appellant’s

other bad acts under Wyoming Rules of Evidence 404(b) . . . . IX 

Whether the trial court erred when it ruled that Officer Marti’s report

was inadmissible under W.R.E. 803(6), the business records

exception to the hearsay rule . . . . X Whether Appellant was

denied his right to a fair trial when the prosecutor made improper

remarks in closing arguments . . . . XI Whether the evidence

produced at trial was sufficient to prove beyond a reasonable doubt

that Appellant committed terroristic threats.

McCone , 866 P.2d at 743-44.

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at 743-44. 1

 Indeed, the briefs he filed in the district court and on appeal appear

to be his direct appeal brief prepared by counsel with a new signature page

indicating that petitioner submitted the briefs pro se.

We have fully considered petitioner’s arguments and reviewed the record,

and we find his claims of error unpersuasive for substantially the same reasons

as the district court stated in its order denying the petition. We conclude that he
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has not made a substantial showing of the denial of a constitutional right and that

he is therefore not entitled to a certificate of appealability.

Petitioner’s application for a certificate of appealability is DENIED, and

the appeal is DISMISSED. Petitioner’s request to proceed in forma pauperis

is DENIED. All other outstanding motions are DENIED.

Entered for the Court

John C. Porfilio

Circuit Judge