* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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.

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, 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 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 priso ner 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 o f aggravated burglary and one count of first degree sexual assau lt, 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 i nstant 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 c onspired to present false testimony during his trial. The expert testified t hat the seminal fluid found at the crime scene could have belonged to Mr. Johnson. Th e expert stated, however, that the test was "inconclusive ... so I cannot tel l you exactly where the sperm came from." Citing this testimony, Mr. Johnson ass erted 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 wit ness to make remarks (insinuating facts which were speculation) which te nd to inflame, prejudice or mislead the jury." The district court denied the p etition on the ground Mr. Johnson had failed to substantiate his claim the te stimony was in any way false or misleading and he failed to allege a violation of t he United States Constitution.
We agree with the district court's assessment of th e merits of Mr. Johnson's petition. The testimony Mr. Johnson cites is nothi ng more than a properly admitted expert opinion that, in light of certain t ests, the seminal fluid found at the crime scene could have come from Mr. Johnson, a lthough it also may have come from someone else. The evidence was not false or misleading, nor does its admission violate the Constitution. We also rejectMr. Johnson's contention the district court erred by failing to state in its ord er 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 anythin g 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