* Mike Mullin replaced Gary Gibson as Warden of the O klahoma State

Penitentiary effective March 25, 2002.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### JUN 7 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOSEPH JEROME DENNIS,

Petitioner - Appellant,

v. MIKE MULLIN, * Warden, Oklahoma State Penitentiary,

Respondent - Appellee. No. 00-6375 (D.C. No. 00-CV-658-C) (W.D. Oklahoma)

ORDER AND JUDGMENT **

Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.

After examining petitioner’s brief and the appellat e record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument.-2-

This case is before the court on Joseph Jerome Dennis’s pro se request for a certificate of appealability (COA). Dennis seeks a COA so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 habeas petition unless the petitioner first obtains a COA). Because Dennis has not “made a substantial showing of the denial o f a constitutional right,” this court denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2).

I. After a jury trial, Dennis was convicted of first d egree murder and sentenced to life imprisonment without parole for s hooting an auto mechanic in Chickasha, Oklahoma. On direct appeal to the Oklah oma Court of Criminal Appeals (OCCA), Dennis asserted two errors. First, Dennis claimed that he had invoked his right to an attorney at his girlfriend’ s house, while in the custody of police officers, and therefore his subsequent state ments to the police should have been suppressed. Second, he claimed the trial court erred in failing to grant the motion to suppress his statements given at the poli ce station because he should have been informed his attorney was present and ava ilable to consult him. The OCCA rejected both claims and affirmed his conviction. Dennis v. State, 990 P.2d 277 (Okla. Crim. App. 1999).-3-

In his application for state post-conviction relief , Dennis raised the following seven grounds for reversing his conviction: (1) his trial counsel was ineffective; (2) his appellate counsel was ineffective; (3) the trial court failed to question the jury abo ut possible racial bias; (4) the conviction was based on insufficient eviden ce; (5) the trial court erred in admitting his involunt ary confession; (6) the trial court erroneously denied the submissi on of certain jury instructions; and (7) the prosecutor’s closing argument was prejudici al. The state district court denied the application, co ncluding that each of these issues either had been, or should have been, raisedon direct appeal. The OCCA affirmed, concluding that (1) ground number five wa s specifically addressed on direct appeal and therefore res judicata; (2) grounds number one, three, four, six, and seven were waived when they were not raised on direct appeal; and (3) ground number two was substantively meritless. In his federal habeas petition, Dennis made three a rguments all related to his desire to have the court suppress statements he made to the police. Dennis’s first two arguments were identical to the two claim s of error he asserted on direct appeal; therefore, the magistrate judge addressed t hose issues on the merits and found that Dennis was not entitled to habeas relief on either basis.-4-

In his third argument, Dennis claimed to have invok ed his right to counsel while at the police station and not to have reiniti ated contact with the police. The magistrate judge found this claim to be unexhausted because it was not raised either on direct appeal or in Dennis’s application for state post-conviction review. The magistrate judge recommended, however, that bec ause this unexhausted claim would be procedurally barred from post-conviction r eview under Oklahoma law, it be deemed exhausted and thus procedurally barred for purposes of federal habeas review pursuant to Coleman v. Thompson, 501 U.S. 722, 735 n.* (1991). Furthermore, the magistrate judge found that Dennis had shown neither cause for the default or prejudice in his case, nor a fundame ntal miscarriage of justice. After consideration of Dennis’s objections to the m agistrate judge’s recommendations, the district court adopted them in their entirety.

II. As noted above, Dennis must obtain a COA before he can appeal the district court’s denial of his § 2254 habeas petiti on. Dennis must make a “substantial showing of the denial of a constitutio nal right” before he is entitled to a COA. 28 U.S.C. § 2253(c)(2). He may make thi s showing by demonstrating that the issues raised are debatable among jurists, a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). This court has conduc ted a-5-

comprehensive de novo review of Dennis’s request for a COA and accompanyi ng brief, the magistrate judge’s report and recommendation, and the entire record on appeal. After that review, we conclude that the di strict court correctly resolved Dennis’s claims and that it is unnecessary for this court to expound on that court’s analysis. Accordingly, this court DENIES Dennis’s request for a COA for substantially those reasons set forth in the magistrate judge’s report and recommendation dated September 15, 2000, and DISMIS SES this appeal. Dennis’s request to proceed in forma pauperis is GRANTED.

Entered for the Court

Michael R. Murphy Circuit Judge