*This order and judgment is not binding precedent, except under the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

JUL 6 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID R. HENDRICKS,

Petitioner-Appellant,

v.

STEVE HARGETT,

Respondent-Appellee,

and

STATE OF OKLAHOMA,

Respondent.

No. 98-6115

(W. District of Oklahoma)

(D.C. No. CIV-97-667-R)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, 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.

This case is before the court on David R. Hendricks’ application for a

certificate of appealability. Hendricks seeks to appeal the district court’s denial

of Hendricks’ 28 U.S.C. § 2254 habeas corpus petition. Because Hendricks has

failed to make a “substantial showing of the denial of a constitutional right,” this

court denies Hendricks’ application for a certificate of appealability and

dismisses this appeal.

 Hendricks asserts that his Oklahoma convictions for kidnaping and first

degree rape must be vacated because: (1) evidence of another crime was

improperly admitted at his trial; (2) a knife was improperly admitted at trial; (3) a

copy of his certificate of discharge from the Oklahoma Department of

Corrections for a prior conviction was improperly admitted at trial; and (4) the

prosecutor impermissibly vouched for the veracity of a prosecution witness. A

magistrate judge issued a Report and Recommendation, which recommended that

Hendricks’ petition be denied. The magistrate thoroughly analyzed Hendricks’

petition and concluded that all of the evidence identified by Hendricks was

properly admitted and that even if it was not properly admitted, the evidence of

guilt was so overwhelming that the admission did not render his trial

fundamentally unfair. As to Hendricks’ claim of prosecutorial misconduct, the
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magistrate noted that Hendricks had taken the prosecutor’s remarks out of

context and that when read in context, the prosecutor’s remarks could not be read

as improper vouching. After de novo review, the district court adopted the

Report and Recommendation and denied the petition.

This court has reviewed Hendricks’ application for a certificate of

appealability and appellate brief, the magistrate’s Report and Recommendation,

the District Court’s Order, and the entire record on appeal. That review

demonstrates that the district court’s resolution of Hendricks’ petition is not

debatable among jurists of reason, subject to a different resolution by this court,

or deserving of further proceedings. See Barefoot v. Estelle , 463 U.S. 880 , 893

& n.4 (1983). Because Hendricks has failed to make the required showing, this

court DENIES his application for a certificate of appealability and DISMISSES

this appeal. Furthermore, because Hendricks has not presented a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal, we DENY his request to proceed in forma pauperis on appeal. 

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge