* This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 26 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GEORGE W. ROBBINS,

Petitioner-Appellant,

v.

BOBBY BOONE, Warden, Mack

Alford Correctional Center;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 97-7146

(D.C. No. 95-CV-391-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of
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this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner George W. Robbins, proceeding pro se, appeals the district

court’s order adopting the magistrate judge’s recommendation to deny his petition

for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. Petitioner

challenges his conviction in Oklahoma state court for feloniously pointing a

weapon after former conviction of a felony and shooting with intent to kill after

former conviction of a felony, alleging (1) his appellate attorney provided

constitutionally ineffective assistance for failing to raise on direct appeal his

claim that he was not arraigned on the charges against him, (2) he was denied his

right to be represented by the attorney of his choice, and (3) the state trial court

abused its discretion by refusing his request for a continuance of his trial. 

Petitioner has requested a certificate of appealability. The certificate of

appealability provisions of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA) do not apply, however, because the habeas petition was filed prior

to AEDPA’s effective date of April 24, 1996. See Jackson v. Shanks , 143 F.3d 1313,

1316 n.1 (10th Cir. 1998). Therefore, we construe petitioner’s request for a

certificate of appealability as a request for a certificate of probable cause under

former 28 U.S.C. § 2253. See Parkhurst v. Shillinger , 128 F.3d 1366, 1368 n.3 (10th

Cir. 1997). 
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The magistrate judge found that under either AEDPA or pre-AEDPA law, the

state court’s finding of fact that petitioner had been arraigned on the charges was

binding, and therefore petitioner’s appellate counsel was not ineffective for failing

to raise the issue on appeal. The magistrate judge also determined that petitioner’s

federal rights were not violated by the state court’s denial of his request to be

represented by a different attorney and his motion for a continuance. 

We have reviewed the transcripts of the state court hearings, the documents

filed in the Oklahoma state trial and appellate courts, the federal district court file

including the magistrate judge’s report and recommendation and the district court’s

order, as well as the petitioner’s brief with attachments. For substantially the

reasons stated in the well-reasoned report by the magistrate judge dated

September 18, 1997, adopted by the district court on December 10, 1997, we

conclude petitioner has failed to make “a substantial showing of the denial of [a]

federal right.” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (quotation omitted);

accord Nguyen v. Reynolds , 131 F.3d 1340, 1345 (10th Cir. 1997), petition for cert.

filed , (U.S. May 8, 1998) (No. 97-9448). 
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Accordingly, we DENY petitioner a certificate of probable cause and

DISMISS this appeal. 

Entered for the Court

James E. Barrett

Senior Circuit Judge