* This order and judgment is not binding precedent, e xcept under the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

### 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, 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. 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 petiti on. 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 appeal ability and dismisses this appeal. Hendricks asserts that his Oklahoma convictions fo r kidnaping and first degree rape must be vacated because: (1) evidence o f another crime was improperly admitted at his trial; (2) a knife was i mproperly admitted at trial; (3) a copy of his certificate of discharge from the Oklah oma Department of Corrections for a prior conviction was improperly a dmitted at trial; and (4) the prosecutor impermissibly vouched for the veracity o f a prosecution witness. A magistrate judge issued a Report and Recommendation , which recommended that Hendricks’ petition be denied. The magistrate thor oughly analyzed Hendricks’ petition and concluded that all of the evidence ide ntified by Hendricks was properly admitted and that even if it was not prope rly admitted, the evidence of guilt was so overwhelming that the admission did no t render his trial fundamentally unfair. As to Hendricks’ claim of pr osecutorial misconduct, the-3-

magistrate noted that Hendricks had taken the prose cutor’s remarks out of context and that when read in context, the prosecut or’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 o n appeal. That review demonstrates that the district court’s resolution o f Hendricks’ petition is not debatable among jurists of reason, subject to a dif ferent 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 areasoned, nonfrivolous argument on the law and facts in suppo rt of the issues raised on appeal, we DENYhis request to proceed in forma pauperison appeal. ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge