*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and 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.

** After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 7 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

KENNETH R. WASHINGTON,

Petitioner-Appellant,

v. No. 00-6190

JAMES L. SAFFLE, Director, Oklahoma

Department of Corrections,

Respondent-Appellee,

and

STATE OF OKLAHOMA,

Respondent.

(D.C. No. 00-CV-233-C)

(W.D. Okla.)

 

ORDER AND JUDGMENT*

 

Before BALDOCK, HENRY, and LUCERO, Circuit Judges.**

 

A jury convicted Petitioner Kenneth Washington in Oklahoma state court for

“Forcible Oral Sodomy After Former Conviction of Two or More Felonies.” Petitioner
1

 The original information charged Petitioner with “Forcible Oral Sodomy . . . by .

. . unnatural and carnal copulation orally . . . .”

2

received a sentence of twenty years imprisonment. On direct appeal to the Oklahoma

Court of Criminal Appeals, Petitioner argued that a variance between a second amended

information and the evidence at trial violated his Sixth Amendment right to notice of the

charge against him. Apparently, the information charged Petitioner with “Forcible Oral

Sodomy . . . by . . . unnatural and carnal copulation by anus . . . .” The evidence at trial,

however, reflected only that Petitioner forced his victim to perform oral sex on him.1 The

Oklahoma Court of Criminal Appeals affirmed Petitioner’s conviction, holding that “the

variance . . . amounted to a harmless scrivener’s error.” Washington v. Oklahoma, No. F98-208 (Okla. Crim. App., Feb. 11, 1999).

Thereafter, Petitioner filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254, again challenging his conviction on the basis of the variance. In a

thorough Report and Recommendation, a United States Magistrate Judge, applying the 

standard enunciated in Williams v. Taylor, 120 S. Ct. 1495 (2000) (construing 28 U.S.C.

§ 2254(d)), recommended the petition be denied because Petitioner could not show he had

been prejudiced by the variance. See Rogers v. Gibson, 173 F.3d 1278, 1287 (10th Cir.

1999). The district court agreed and denied the petition. The court subsequently denied

Petitioner a certificate of appealability. See 28 U.S.C. § 2253(c). His renewed

application is before us.
3

A petitioner may appeal the denial of a habeas corpus petition only if a “circuit

justice or judge” issues a certificate of appealability. Id. § 2253(c)(1)(A). A certificate of

appealability “may issue . . . only if the applicant has made a substantial showing of the

denial of a constitutional right.” Id. §2253(c)(2); United States v. Simmonds, 111 F.3d

737, 746 (10th Cir. 1997). We conclude that Petitioner has failed to make the required

showing.

We have thoroughly reviewed Petitioner’s application for a certificate of

appealability, his brief, and the entire record before us. We conclude that Petitioner’s

claims are meritless substantially for the reasons set forth in the magistrate judge’s report

and recommendation to the district court. Because Petitioner has not made a substantial

showing of the denial of a constitutional right, we deny his request for a certificate of

appealability and dismiss the appeal.

APPLICATION DENIED; APPEAL DISMISSED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge