*This order and judgment is not binding precedent, except under the doctrines of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

### JUN 19 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN L. HARDIN, Petitioner-Appellant,

v. STEPHEN W. KAISER, Respondent-Appellee. No. 96-6389 (D.C. No. CIV-96-1240-C) (W.D. Okla.)

ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Petitioner Marvin L. Hardin, appearing pro se and p roceeding in forma pauperis, requests a certificate of appealability t o appeal the district court's denial-2-

of his petition for writ of habeas corpus under 28 U.S.C. § 2254. We conclude Hardin is not entitled to a certificate of appealab ility and dismiss the appeal. Hardin was convicted by a jury on February 22, 1993 , of kidnapping after former conviction of two or more felonies, and assa ult and battery. He was sentenced to twenty years' imprisonment on the kidn apping charge and thirty days' imprisonment in county jail on the assault and batt ery charge. Hardin filed a direct appeal claiming he was denied a fair trial b ecause of the admission of evidence of other crimes and prosecutorial miscondu ct. His conviction and sentence were affirmed by the Oklahoma Court of Cri minal Appeals on June 29, 1995. Hardin then filed an application for post-co nviction relief claiming he was denied effective trial and appellate counsel, which was denied and the denial was affirmed by the Oklahoma Court of Criminal Appeals. Having exhausted his state remedies, Hardin filed apetition for writ of habeas corpus in federal district court, asserting all claims previously raised in state court. In recommending denial of the petitio n, a magistrate judge outlined the evidence presented at trial and concluded it wa s sufficient to support the jury's verdict. The magistrate rejected Hardin's assertio n that he was prejudiced by improper remarks by the prosecutor during closing arguments, and concluded evidence of Hardin's alleged "pimping" activity was properly admitted as relevant for purposes of attacking his credibility. The mag istrate also rejected his claims-3-

of ineffective assistance of counsel, in particularHardin's assertion that his trial counsel opened the door to evidence of prior convic tions and failed to request a jury instruction regarding evidence of other crimes , and his assertion that appellate counsel failed to challenge the sufficien cy of the evidence and failed to raise the ineffective assistance of trial counsel. The magistrate concluded Hardin was provided with reasonable professional assistanc e at both the trial and appellate stages and was not prejudiced by any of t he alleged errors. Hardin filed objections to the magistrate's recomme ndation. The district court adopted the report and recommendation in full . The court noted Hardin had raised an issue in his objection that was not addre ssed by the magistrate, i.e. , that the Oklahoma kidnapping statute under which he was charged (21 Okla. Stat. 1991, §741) required the prosecution to demonstrate that the forcible taking of the victim was either without "domestic authority" or w as a fraudulent inducement of consent to confinement. After reviewing the statut e at issue, the court rejected this argument as contrary to Oklahoma case law and common sense, and concluded the evidence presented at trial was suffi cient to support Hardin's conviction under the statute. The court denied Har din's petition for habeas corpus and, after he filed his notice of appeal, the courtdenied Hardin a certificate of appealability.-4-

The standard for granting a certificate of appealab ility under the Antiterrorism and Effective Death Penalty Act is th e same as the standard set out by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880 (1983). See Lennox v.
Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied 117 S. Ct. 746 (1997). Under the Barefootstandard, a certificate will issue only where the petitioner has demonstrated the issues raised are debatable among jurists of reason, a court could resolve the issues differently, or the questi ons presented are deserving of further proceedings. See Barefoot , 463 U.S. at 893 n.4. The question here is whether Hardin can meet this burden. For substanti ally the same reasons set forth in the magistrate's recommendation of September 19, 1996, and the district court's order of October 23, 1996, we agree with the distri ct court that Hardin cannot satisfy this burden and is not entitled to a certif icate of appealability. Hardin's application for a certificate of appealabi lity is DENIED and this appeal is DISMISSED. The mandate shall issue forth with. Entered for the Court Mary Beck Briscoe Circuit Judge