* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### MAY 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

COURTNEY M. SCOTT, JR., Petitioner-Appellant,

v. RON WARD, Respondent-Appellee. No. 98-6377 (W. District of Oklahoma) (D.C. No. 98-CV-3-A)

ORDER AND JUDGMENT *

BeforeTACHA , McKAY, and MURPHY , 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. This case is before the court on Courtney M. Scott’ s pro se application for a certificate of appealability (“COA”) and request to proceed in forma pauperis-2-

on appeal. Scott seeks a COA so that he can appeal the district court’s denial of Scott’s 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal cannot be taken from a “f inal order in a habeas corpus proceeding in which the determination complained of arises out of process issued by a State court” unless the petitioner first obtai ns a COA). To be entitled to a COA, Scott must make “a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Scott can make such a showing by de monstrating the issues raised are debatable among jurists, a court could resolve the issues differently, or that the questions presented deserv e further proceedings. Barefoot v. Estelle , 463 U.S. 880, 892-893 & n.4. (1983)

. In his § 2254 petition, Scott sought to challenge h is conviction, upon a plea of guilty, to murder in the first degree afterformer conviction of three or more felonies. Raising four separate grounds for r elief, Scott alleged as follows: (1) his trial counsel rendered ineffective assistan ce of counsel by allowing him to plead guilty to murder under a statute that had bee n repealed; (2) the prosecutor violated Scott’s due process rights by prosecuting him under a repealed statute; (3) the trial court “erred” in allowing Scott to be convicted under a repealed statute; and (4) he was being illegally confined af ter being convicted under a repealed statute. Scott’s petition was referred to a magistrate judge for preparation of a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. §1 Scott’s “Motion to Supplement the Record” with mate rials not before the

district court, which materials do not relate to any one of the four issues raised in Scott’s § 2254 petition before the district court, is DENIED

. -3- 636(b)(1)(B). In the R&R, the magistrate recommend ed that Scott’s petition be denied as procedurally barred pursuant to Coleman v. Thompson , 501 U.S. 722, 750 (1991), because Scott had failed to raise these claims until his third petition for state post-conviction relief. Upon de novo review, the district court adopted the R&R and further noted that Scott’s allegations of error were based on nothing more than a mere “scrivener’s error” in the sentenc ing form used by the state trial court, which error had absolutely no effect on Scott’s substantive rights. This court has undertaken a close review of Scott’s application for a COA and appellate brief, the magistrate judge’s R&R, th e district court Order, and the entire record on appeal. That review demonstrates that the district court’s resolution of Scott’s claims is not reasonably debatable, subject to a different resolution on appeal, or deserving of further proceedings. See Barefoot , 463 U.S. at 893 & n.4. Accordingly, Scott has not made a substantial showing of the denial of a constitutional right and is not entitled to a COA. See 28 U.S.C. § 2253(c)(2). Scott’s application for a COA is hereby DENIED for substantially those reasons set out in the magistrate judge’s R&R dated August 13, 1998, and the district court Order dated September 14, 1998; this appeal i s therefore DISMISSED

. Scott’s request to proceed in forma pauperison appeal is DENIED as moot. 1-4- ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge