* This order and judgment is not binding precedent, e xcept under the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

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

### MAY 24 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
JOSEPH PATRICK BROWN,

Petitioner - Appellant,

v. KEN KLINGLER,

Respondent - Appellee. No. 01-5194 (D. C. No. 98-CV-349-K) (N. D. Oklahoma)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, EBEL , and LUCERO , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Petitioner was convicted for the murder of James Ri chard Morris and sentenced to life imprisonment. Petitioner was rep resented by an Assistant Public Defender, and relied upon an alibi defense at trial . In the Oklahoma Criminal- 2 -

Court of Appeals, petitioner claimed that the trial court’s questioning of witnesses invaded the province of the jury, that explicit pho tographs of the decedent prejudiced the jury, and that the jury was provideda defective alibi instruction. The OCCA affirmed his sentence. Petitioner then filed pro se this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In this petition, pe titioner repeated his claims raised on direct appeal, but also added claims thatthe state had withheld exculpatory evidence, that he had been denied effec tive assistance of counsel, and that he was innocent of the charges. The district court denied the three new claims as procedurally barred and denied the remain ing claims on the merits. Petitioner now seeks a certificate of appealabilityin this court. At the outset, we note that pro se complaints are h eld “to less stringent standards than formal pleadings drafted by lawyers. ” Haines v. Kerner , 404 U.S. 519, 520-21 (1972). To be entitled to a COA, Mr. Brown must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). He can make this showing by establis hing that “reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotation omitted).- 3 -

We may grant habeas relief only if the state court entered a judgment that (1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). After reviewing the record and all of the filings i n this case, this court is convinced that no reasonable jurist would debate wh ether the petition should have been resolved in a different manner. We decline to grant a COA for substantially the reasons given in the order of the district court. The motion to proceed in forma pauperis is granted. The application for a certificate of appealability is DENIED. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge