*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### JAN 7 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ JAMES PAUL MANGHAM, Petitioner-Appellant,

v. STATE OF OKLAHOMA; DEWAYNE T. BEGGS, Respondents-Appellees. No. 99-6220 (W.D. Okla.) (D.Ct. No. 97-CV-602-L)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Mr. Mangham will begin serving this sentence once he serves a federal sentence

of 151 months for conviction of distribution of methamphetamine.
-2- Appellant James Paul Mangham appeals pro se the district court’s decision dismissing his 28 U.S.C. § 2254 petition. We deny Mr. Mangham a certificate of appealability and dismiss his appeal.

The State of Oklahoma charged Mr. Mangham with firs t degree manslaughter as a result of an auto-pedestrian coll ision. A jury convicted Mr. Mangham of negligent homicide, after which he recei ved a sentence of one year in county jail. 1 On direct appeal, the Oklahoma Court of Criminal Appeals affirmed his conviction and sentence. In his § 225 4 motion filed on April 21, 1997, Mr. Mangham raised the same issues raised in his state appeal, claiming insufficient evidence existed for conviction of neg ligent homicide and that the trial court’s failure to give a jury instruction on “proximate cause” rendered his trial fundamentally unfair.

A federal magistrate judge issued a thorough Reportand Recommendation, recommending denial of Mr. Mangham’s petition becau se his claims lacked merit. Mr. Mangham filed an objection to the recommendatio n, claiming: (1) application of the standard of review under the Ant i-Terrorism and Effective-3-

Death Penalty Act constituted an impermissible retr oactive application of the Act, and (2) the magistrate judge impermissibly gave too much weight to the Oklahoma Court of Criminal Appeals’ decision. The district court issued a decision, determining the magistrate judge provideda cogent analysis of the issued presented by Mr. Mangham, performed an exhau stive review of the claims, and correctly found them lacking. In addition, the district court rejected Mr. Mangham’s objections to the recommendation, finding : (1) the Anti-Terrorism and Effective Death Penalty Act standard of review applied because he filed his petition after the effective date of the Act, and ( 2) the magistrate judge did not give undue deference to the state court’s rationale . After conducting a de novo review, the district court adopted the magistrate j udge’s report and recommendation in its entirety and denied the petit ion.

On appeal, Mr. Mangham raises the same arguments ra ised in his petition and addressed by the district court. He also raise s the same issue on the application of the Anti-Terrorism and Death PenaltyAct, as contained in his objection to the magistrate judge’s recommendation and addressed by the district court. We review the district court’s factual find ings for clear error and its legal basis for dismissal of Mr. Mangham’s petition de novo

. See Roger v. Gibson , 173 F.3d 1278, 1282 and n.1 (10th Cir. 1999), petition for cert. filed (U.S. Nov. 5,-4-

1999) (No. 99-6954). In order for Mr. Mangham to p roceed on appeal, he must make a substantial showing of the denial of a const itutional right. 28 U.S.C. § 2253(c)(2). After a careful review of the record , we agree with the district court that Mr. Mangham fails to make the requisite showing. For substantially the same reasons set forth in the district court’s Ord er of April 29, 1999 and the magistrate judge’s Report and Recommendation of Nov ember 30, 1998, we deny Mr. Mangham’s request for a certificate of appealab ility, deny his request to proceed without prepayment of costs or fees, and DISMISS the appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge