* This order and judgment is not binding precedent, e xcept under the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

### OCT 14 1998 

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

GERALD L. COOPER,

Petitioner-Appellant,

v. KENNETH KLINGER,

Respondent-Appellee. No. 97-6197 (D.C. No. CIV-96-79-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, McKAY, and BRISCOE , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The district court denied petitioner a certificate of appealability in its order

dated June 20, 1997, and petitioner requests this c ourt to issue one. The certificate of appealability provisions of the Anti terrorism and Effective Death Penalty Act of 1996, Pub L. No. 104-132, 110 Stat. 1214 (AEDPA) do not apply, however, because petitioner’s habeas petition was f iled prior to AEDPA’s effective date of April 24, 1996. See Jackson v. Shanks , 143 F.3d 1313, 1316 n. 1 (10th Cir. 1998), petition for cert. filed , (U.S. Aug. 3, 1998) (No. 98-5679). Petitioner remains subject, however, to the pre-AED PA requirement that he obtain a certificate of probable cause before bringing his appeal, requiring him to make a substantial showing of the denial of a federal right, see Barefoot v. Estelle , 463 U.S. 880, 893 (1983), the same showing a petitionermust make under AEDPA standards to obtain a certificate of appealability, see Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied ,117 S. Ct. 746 (1997). Therefore, we construe petitioner’s request as a request for a ce rtificate of probable cause. -2- Petitioner Gerald L. Cooper, appearing pro se, seek s a certificate of probable cause to appeal the district court’s orderdismissing his petition for writ of habeas corpus under 28 U.S.C. § 2254. 1 Petitioner was convicted in Oklahoma in 1988 of one count of first degree rape, two coun ts of forcible oral sodomy, one count of forcible anal sodomy and one count of inde cent or lewd acts with a child under sixteen years of age, all occurring after pri or convictions of two or more felonies. Petitioner was sentenced to 300 years’ i mprisonment. Petitioner challenges his conviction claiming his c onstitutional rights were violated because (1) hearsay testimony of the child victim was improperly admitted; (2) hearsay testimony of state witness Le a Jones was improperly admitted; (3) hearsay testimony of state witness Dr . Parker-Hughey was improperly admitted; (4) a videotaped interview of the child victim was-3-

improperly admitted; (5) the improperly admitted ev idence had a cumulative effect; (6) the prosecutor withheld exculpatory evi dence; (7) the expert testimony of Dr. Parker-Hughey was not reliable; (8) the stat e relied on erroneous scientific data; (9) the testimony of Dr. Parker-Hughey improp erly bolstered the testimony of the child victim; (10) his counsel failed to obt ain expert witnesses to challenge the state’s experts; (11) the prosecutor misled the court and the jury as to Dr. Parker-Hughey’s qualifications; (12) his trial coun sel waived his right to rebut the child victim’s testimony; (13) he received ineffect ive assistance of counsel at the guilt/innocence stage of trial because his counsel failed to object to or otherwise prevent the foregoing errors; (14) the prosecutor i mproperly expressed his opinion during the sentencing stage of the trial that the e vidence was uncontroverted, and gave the jury improper “rules of thumb” to determin e his sentence; (15) the prosecutor improperly expressed his opinion during the sentencing stage of the trial that it was uncontroverted that petitioner ha d four prior felony convictions; (16) the prosecutor identified himself as part of the jury during the sentencing stage; and (17) he received ineffective assistance of counsel at the sentencing stage of the trial because his counsel failed to object to the alleged prosecutorial misconduct. The district court adopted the magistrate judge’s p roposed findings and recommended disposition. The magistrate judge heldthat petitioner had properly-4-

exhausted his state remedies with respect to claim nine (that Dr. Parker-Hughey improperly bolstered the victim’s credibility), andclaims fourteen, fifteen, and sixteen (allegations of prosecutorial misconduct) b y raising them on direct appeal.
See Coleman v. Thompson , 501 U.S. 722, 731 (1991). As to these four claim s, the magistrate judge found that none of the challen ged testimony or comments rendered the trial so fundamentally unfair as to co nstitute a denial of due process. The magistrate judge held that petitioner had proce durally defaulted all of his remaining claims, except his claims of ineffective assistance of counsel. As to the procedurally barred claims, the magistrate judg e found that petitioner had not shown cause for his default or prejudice resulting therefrom. See Coleman , 501 U.S. at 750. Finally, as to the ineffective assist ance of counsel claims, the magistrate judge held that petitioner failed to sho w that his counsel’s performance was so deficient that counsel was not performing to the level guaranteed by the Sixth Amendment, or that counsel’s deficient performance prejudiced him. See Strickland v. Washington , 466 U.S. 668, 687 (1984). “Our scope of review in federal habeas proceedings is limited; we may grant habeas relief to a state prisoner only if state court error ‘deprived him of fundamental rights guaranteed by the Constitution o f the United States.’” Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir. 1998), petition for cert. filed , (U.S. Aug. 3, 1998) (No. 98-5679) (quoting Brinlee v. Crisp , 608 F.2d 839, 843-5-

(10th Cir. 1979). “Because this case was filed bef ore the enactment of the AEDPA, we apply pre-amendment standards of review.” Id. We review the legal bases for the district court’s dismissal of the § 2254 petition de novo , but we afford deference to the state court’s construction of state law, and we review the federal district court’s factual findings for clearerror, and presume the state court’s factual findings are correct. See id. ; 28 U.S.C. § 2254 (pre-amendment). We have reviewed the transcripts of the state crimi nal trial, the pleadings and rulings in the state court direct appeal and po st-conviction proceedings, the magistrate judge’s report, the district court’s ord er, the petitioner’s brief and application for certificate of probable cause, and respondent’s response thereto. For substantially the reasons stated in the well-re asoned report by the magistrate judge dated October 23, 1996, and the district court’s February 6, 1997 order adopting this report, we conclude petitioner has fa iled to make a “substantial showing of the denial of [a] federal right” by demo nstrating the issue is “debatable among jurists of reason,” or that anothe r court could resolve the issue differently, or that the question deserves further proceedings. Barefoot , 463 U.S. at 893 n.4 (quotations omitted). Consequently, we DENY petitioner’s application-6-

for a certificate of probable cause and DISMISS thi s appeal. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge