* This order and judgment is not binding precedent, e xcept under the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

### MAR 22 2001 

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

JOE T. BELL,

Petitioner-Appellant,

v. STEPHEN W. KAISER; DREW EDMONDSON; STATE OF OKLAHOMA,

Respondents-Appellees. No. 00-6330 (D.C. No. 99-CV-1146-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , 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.-2-

Petitioner seeks a certificate of appealability (CO A) to proceed with his appeal from the district court’s denial of his peti tion for writ of habeas corpus. In order to obtain a COA, petitioner must make a su bstantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). To do so, he must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000). Petitioner raised fourteen issues in his federal habeas petition: (1) error by the trial court in refusing to instruct the jury on voluntary intoxication; (2) ineffective assistance of trial counsel for fai ling to object to certain jury instructions; (3) failure of the state to prove bey ond a reasonable doubt that petitioner did not act in self defense because ther e were no eye witnesses to the altercation; (4) failure to prove that the candy di sh was the weapon used (because there were no fingerprints, DNA blood evidence or f orensic reports); (5) failure by the state to disclose that there were no fingerp rints, DNA blood evidence, forensic reports or expert medical examiner’s reports; (6) insufficient evidence to support the conviction (lack of fingerprints and vi ctim’s blood on the dangerous weapon); (7) ineffective assistance of trial counse l for failing to object to the state’s evidence and failing to seek a dismissal onthe ground that the state failed to prove the candy dish was the weapon used; (8) in effective assistance of trial-3-

counsel for failing to impeach the victim with her prior conviction; (9) ineffective assistance of trial counsel for failing to contact character witnesses; (10) ineffective assistance of appellate counsel fo r failing to raise trial counsel’s ineffectiveness; (11) violation of petitioner’s Fou rteenth Amendment rights because he was not permitted to take part in the ju ry selection process; (12) coercion of the jury by the trial judge and th e state; (13) vindictive prosecution in retaliation for petitioner’s lawsuit s against the Oklahoma county sheriff; and (14) ineffective assistance of trial c ounsel for failing to seek a change of venue. The magistrate judge carefully considered each clai m. After reviewing the magistrate judge’s report and recommendation de nov o and considering petitioner’s objections, the district court adopted the report and recommendation and denied the petition. We agree with the thoroug h and well reasoned consideration of petitioner’s claims by both the ma gistrate judge and district judge, making duplication of that analysis unnecess ary. Because we have determined that reasonable jurists would find the d istrict court’s assessment of petitioner’s constitutional claims neither debatabl e nor wrong, we conclude that petitioner has failed to make a substantial sh owing of the denial of a constitutional right for substantially the reason s set forth in the magistrate-4-

judge’s recommendation of August 21, 2000, and the district court’s order of September 21, 2000. The application for a certificate of appealability is DENIED and the appeal is DISMISSED. The motion for leave to proceed on appeal in forma pauperis is GRANTED. The mandate shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge