* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Petitioner George W. Robbins, proceeding pro se, ap peals 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 f or feloniously pointing a weapon after former conviction of a felony and shoo ting with intent to kill after former conviction of a felony, alleging (1) his app ellate attorney provided constitutionally ineffective assistance for failing to raise on direct appeal his claim that he was not arraigned on the charges agai nst him, (2) he was denied his right to be represented by the attorney of his choi ce, and (3) the state trial court abused its discretion by refusing his request for acontinuance of his trial. Petitioner has requested a certificate of appealabi lity. The certificate of appealability provisions of the Antiterrorism and E ffective Death Penalty Act of 1996 (AEDPA) do not apply, however, because the hab eas 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).-3-

The magistrate judge found that under either AEDPA or pr e-AEDPA law, the state court’s finding of fact that petitioner had b een arraigned on the charges was binding, and therefore petitioner’s appellate couns el 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 courthearings, the documents filed in the Oklahoma state trial and appellate cou rts, the federal district court file including the magistrate judge’s report and recommen dation and the district court’s order, as well as the petitioner’s brief with attac hments. For substantially the reasons stated in the well-reasoned report by the m agistrate judge dated September 18, 1997, adopted by the district court o n December 10, 1997, we conclude petitioner has failed to make “a substanti al 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).-4-

Accordingly, we DENY petitioner a certificate of pr obable cause and DISMISS this appeal.

Entered for the Court

James E. Barrett Senior Circuit Judge