* This order and judgment is not binding precedent, e xcept under the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

### JAN 5 1999 

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

Petitioner-Appellant,

v. H.N. SCOTT,

Respondent-Appellee. No. 98-6049 (D.C. No. 97-CV-648) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , 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). The case is therefore ordered submitted without oral argument.-2-

Petitioner Carroll Gregg appeals the district court ’s order denying his petition for a writ of habeas corpus, filed pursuan t to 28 U.S.C. § 2254. He requests issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c). We deny the certificate and dismiss the appeal. Petitioner was convicted in an Oklahoma state courtof forty-three counts based on his sexual abuse of a young girl. The cha rges arose from four sexual encounters between petitioner and the victim that p etitioner had videotaped. The state appellate court affirmed the convictions on all but one of the counts. See Gregg v. State , 844 P.2d 867, 879, 881 (Okla. Crim. App. 1992). He then filed his habeas petition in federal court. A magistrate judge recommended denying the petition and the district court adopted that recomm endation. On appeal, petitioner pursues the following arguments made to the state appellate court and the federal district court: (1 ) the prosecution charged him with many counts based on conduct that should have been charged as a single offense, in violation of the constitutional prohibi tion against double jeopardy; (2) the evidence that the crimes were committed within the applicable statutes of limitations was insufficient to support the convict ions; (3) the state court denied him his due process rights by refusing his request to present mitigating evidence on sentencing; (4) the prosecutor’s improper comments denied petitioner a fair-3-

trial; and (5) petitioner’s absences from various p arts of his trial denied him his constitutional rights of due process. Our review of the district court’s conclusions of law is de novo. See Sena v. New Mexico State Prison , 109 F.3d 652, 653 (10th Cir. 1997). The underlyi ng facts adjudicated in the state court are “presumed to be correct.” 28 U.S.C. § 2254(e)(1) (1996). We have carefully reviewed the record on appeal, a s well as the brief submitted by petitioner. Applying the st andards of 28 U.S.C. § 2254 (d) & (e) (1996), we affirm the denial of a writ of hab eas corpus for substantially the reasons stated in the district court’s January 16, 1998 order. PETITIONER’S REQUEST FOR A CERTIFICATE OF APPEALABI LITY IS DENIED. The appeal is DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge