*This order and judgment is not binding precedent, except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 Tenth Cir. 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 Oklahoma)

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 therefore ordered

submitted without oral argument.

Johnny Edward Evans (Evans), an inmate of the State of
1 We grant issuance of a certificate of probable cause

simply to reach the merits of the case.

- 2 -

Oklahoma, appearing pro se and having been granted leave to proceed

in forma pauperis, appeals from the district court’s order denying

his petition for writ of habeas corpus filed pursuant to 28 U.S.C.

§ 2254.1

On February 25, 1992, Evans was convicted, following a jury

trial, of Unlawful Delivery of a Controlled Drug in the District

Court of Beckham County, Oklahoma. On March 18, 1992, he was

sentenced to 40 years imprisonment and fined $ 10,000.

After exhausting his state court remedies, Evans filed 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 continuance of

his trial date; (2) the state trial court erred when 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 excessive. 

The matter was assigned to Magistrate Judge Blasdel who issued

a Report and Recommendation on September 8, 1995, recommending that

Evans’ petition be denied. Evans filed timely objections to the

magistrate judge’s report. After conducting a de novo review of

the magistrate judge’s findings and recommendations, the district

court adopted the Report and Recommendation in its entirety and
2 To the extent that Evans raises new issues on appeal

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/concluded that:

Evans failed to identify any possible legal prejudice which might

have resulted from the state trial court’s denial of his requested

continuance; Evans failed to demonstrate any factual basis for his

complaint that the state trial court’s evidentiary ruling

constituted an abuse of discretion nor did he articulate any legal

prejudice which could have resulted on account of the ruling; the

particular comments made by the state prosecutor under 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 well within the

statutory guidelines set by the state legislature and the length of

the sentence did not implicate either Eight or Fourteenth Amendment

concerns.

On appeal, Evans contends that the district court erred in

denying his petition for a writ of habeas corpus. In addition,

Evans reiterates his claims made to the district court.2 We 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 underlying mixed

questions of law and fact are accorded the presumption of

correctness. Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir. 1992).
We have carefully reviewed the record on appeal. We AFFIRM

substantially for the reasons set forth in the magistrate judge’s

Report and Recommendation of September 8, 1995, and the 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