*

 This order and judgment is not binding precedent except under the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

UNITED STATES COURT OF APPEALS

Filed 7/10/96

TENTH CIRCUIT

_____________________

ANDREW J. JOHNSON,

 Plaintiff-Appellant,

v.

DUANE SHILLINGER, Warden,

Wyoming Department of Corrections;

ATTORNEY GENERAL OF THE

STATE OF WYOMING,

 Defendants-Appellees.

No. 96-8011

(D.C. No. 95-CV-23-D)

(D. Wyoming)

_____________________

ORDER AND JUDGMENT*

_____________________

Before BRORBY, EBEL and HENRY, Circuit Judges.

_____________________

After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1

 The district court denied Mr. Johnson's petition on August 10, 1995. Mr.

Johnson did not file a notice of appeal within thirty days, Fed. R. App. P. 4(a)(1),

but he did file an application for a certificate of probable cause in the district

court on August 29, 1995. The court will construe the application for a certificate

of probable as a notice of appeal. Ray v. Cowley, 975 F.2d 1478 (10th Cir. 1992).

-2-

Petitioner Andrew J. Johnson, a Wyoming state prisoner proceeding pro se

and in forma pauperis, appeals the denial of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. We grant Mr. Johnson's application for a

certificate of probable cause and affirm.1

A Wyoming jury convicted Mr. Johnson of one count of aggravated

burglary and one count of first degree sexual assault, and he was sentenced to life

imprisonment. The Wyoming Supreme Court affirmed. Johnson v. State, 806

P.2d 1282 (Wyo. 1991). He subsequently filed the instant federal petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging the prosecutor and

an expert witness from the state crime laboratory conspired to present false

testimony during his trial. The expert testified that the seminal fluid found at the

crime scene could have belonged to Mr. Johnson. The expert stated, however,

that the test was "inconclusive ... so I cannot tell you exactly where the sperm

came from." Citing this testimony, Mr. Johnson asserted in district court and now

reasserts in this court that "[t]he prosecutor became a part of the conspiracy by
-3-

encouraging the state's crime laboratory expert witness to make remarks

(insinuating facts which were speculation) which tend to inflame, prejudice or

mislead the jury." The district court denied the petition on the ground Mr.

Johnson had failed to substantiate his claim the testimony was in any way false or

misleading and he failed to allege a violation of the United States Constitution.

We agree with the district court's assessment of the merits of Mr. Johnson's

petition. The testimony Mr. Johnson cites is nothing more than a properly

admitted expert opinion that, in light of certain tests, the seminal fluid found at

the crime scene could have come from Mr. Johnson, although it also may have

come from someone else. The evidence was not false or misleading, nor does its

admission violate the Constitution. We also reject Mr. Johnson's contention the

district court erred by failing to state in its order denying the petition that it had

reviewed the record de novo. We have no doubt the district court did so, and Mr.

Johnson has failed to draw our attention to anything the district court overlooked.

The judgment of the district court is AFFIRMED. All motions pending

before this court are DENIED as moot.
-4-

Entered for the Court:

WADE BRORBY

United States Circuit Judge