* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered su bmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 7 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MAJOR HUDSON, III, Petitioner - Appellant, v. JAMES L. SAFFLE, Director of the Oklahoma Department of Corrections, Respondent - Appellee, and STATE OF OKLAHOMA, Respondent. No. 01-6296 (D.C. No. 01-CV-258-W) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges. **
Petitioner-Appellant Major Hudson, III, an inmate appearing pro se, seeks a- 2 -

certificate of appealability (“COA”) allowing him t o appeal the district court’s order denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Because Petitioner has failed to make a “substantial showin g of the denial of a constitutional right” as required by 28 U.S.C. § 22 53(c)(2), we deny his request and dismiss the appeal. Petitioner was convicted in a jury trial of Rape in the First Degree, Burglary in the First Degree, Child Abuse, and Thre atening a Witness. He was sentenced to fifty-three years on the rape charge, twenty years on the burglary charge, ten years on the child abuse charge, and se ven years on the witness threatening charge, all to be served consecutively. On direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirme d the convictions and sentences. Petitioner subsequently filed an applic ation for post-conviction relief in state court, alleging that his court-appointed appellate counsel provided ineffective assistance. The state trial court deni ed the application and the OCCA subsequently entered an order declining jurisdictio n dismissing Petitioner’s postconviction appeal on the ground that it was untimel y filed. Petitioner then filed a federal habeas petition, cl aiming (1) admission of evidence of other crimes denied him a fair trial; ( 2) the evidence was insufficient to support the convictions; (3) defense counsel pro vided ineffective assistance of counsel at trial; (4) the sentences were excessive; and (5) his appellate counsel- 3 -

provided ineffective assistance on his direct appea l. After referral of the matter from the district court, the magistrate judge issue d a thorough Report and Recommendation, recommending dismissal of the petit ion. R. Doc. 17. Petitioner had filed a motion to stay the proceedin g in federal court because he claimed he had a pending application in state trial court to appeal out of time the denial of his post-conviction ineffective assistanc e of appellate counsel claim. The magistrate judge denied the motion after conclu ding that Petitioner had provided no specific information or documentary evi dence supporting his allegation of a post-conviction proceeding. The di strict court adopted the Report and Recommendation and denied both the petition and the motion to stay the proceedings. R. Doc. 20. With the exception of his claim of ineffective assi stance of appellate counsel, Petitioner raises the same issues in this appeal as he did below: (1) that admission of other crimes denied him a fair trial; (2) that the evidence was insufficient to support the convictions; (3) that d efense counsel provided ineffective assistance; and (4) that his sentence w as excessive. We have carefully reviewed Petitioner’s request fora COA, his appellate brief, the magistrate judge’s recommendation, and t he appellate record, and conclude that he has failed to demonstrate that the issues raised are debatable among jurists, that a court could resolve the issue s differently, or that the- 4 -

questions presented deserve further proceedings. S ee Slack v. McDaniel , 529 U.S. 473, 483–84 (2000). As such, Petitioner has f ailed to make the “substantial showing of the denial of a constitutional right” re quired for a COA. 28 U.S.C. § 2253(c)(2). Accordingly, for substantially the reasons set forth by the magistrate judge, we DENY Petitioner’s request for a COA and DISMISS his appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge