* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3. UNITED STATES COURT OF APPEALS Filed 4/12/96 FOR THE TENTH CIRCUIT

______ JOHNNY E. EVANS, ) ) Petitioner-Appellant, ) ) v. ) No. 95-6389 ) (D.C. No. CIV-95-290-R) JACK COWLEY, ATTORNEY GENERAL FOR ) (Dist. of Oklahom a) THE STATE OF OKLAHOMA, ) ) ) Respondents-Appellees. )

______ ORDER AND JUDGMENT *

______ Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______ After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is t herefore ordered submitted without oral argument. Johnny Edward Evans (Evans), an inmate of the State of1 We grant issuance of a certificate of probable caus e

simply to reach the merits of the case. - 2 - Oklahoma, appearing pro se and having been granted leave to proceed informapauperis , appeals from the district court’s order denying his petition for writ of habeas corpus filed pursua nt to 28 U.S.C. § 2254. 1 On February 25, 1992, Evans was convicted, followin g a jury trial, of Unlawful Delivery of a Controlled Drug inthe District Court of Beckham County, Oklahoma. On March 18, 19 92, he was sentenced to 40 years imprisonment and fined $ 10,0 00. After exhausting his state court remedies, Evans fi led a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Evans alleged that: (1) the state trial court abused its discretion by denying his motion for a c ontinuance of his trial date; (2) the state trial court erred whe n it permitted the state to introduce into evidence four “rocks” of cocaine; (3) comments made by the prosecutor during closing arguments deprived him of a fair trial; and (4) his sentence was exces sive. The matter was assigned to Magistrate Judge Blasdel who issued a Report and Recommendation on September 8, 1995, r ecommending that Evans’ petition be denied. Evans filed timely obje ctions to the magistrate judge’s report. After conducting a de novoreview of the magistrate judge’s findings and recommendations , the district court adopted the Report and Recommendation in its entirety and2 To the extent that Evans raises new issues on appea l

not raised in his § 2254 petition, these issues are not properly before this court and are not considered herein. - 3 - denied Evans’ petition. The district court found/c oncluded that: Evans failed to identify any possible legal prejudi ce which might have resulted from the state trial court’s denial o f his requested continuance; Evans failed to demonstrate any factua l basis for his complaint that the state trial court’s evidentiary ruling constituted an abuse of discretion nor did he artic ulate any legal prejudice which could have resulted on account of t he ruling; the particular comments made by the state prosecutor un der the circumstances of Evans’ case were neither so severe , nor so potentially damaging to Evans’ case that they raise any constitutional concerns; and Evans’ sentence fell w ell within the statutory guidelines set by the state legislature a nd the length of the sentence did not implicate either Eight or Four teenth Amendment

concerns. On appeal, Evans contends that the district court e rred in denying his petition for a writ of habeas corpus. In addition, Evans reiterates his claims made to the district co urt. 2We review a district court’s legal conclusions in dismissing a petition for a writ of habeas corpus de novo , Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993), although findings of fact un derlying mixed questions of law and fact are accorded the presumpt ion of correctness. Manlove v. Tansy , 981 F.2d 473, 476 (10th Cir. 1992).We have carefully reviewed the record on appeal. W e AFFIRM

substantially for the reasons set forth in the magi strate judge’s Report and Recommendation of September 8, 1995, andthe district court’s Memorandum Opinion and Order of October 20, 1995. The mandate shall issue forthwith.

Entered for the Court:
James E. Barrett, Senior United States Circuit Judge