*

 This order and judgment is not binding precedent except under the doctrines of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

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 22 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

LEON EDWARD ASBERRY,

Petitioner-Appellant,

v.

STEVE HARGETT,

Respondent-Appellee.

No. 98-6052

(W.D. Okla.)

(D.Ct. No. 97-CV-559)

ORDER AND JUDGMENT*

Before SEYMOUR, BRORBY, and BRISCOE, 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.

Mr. Asberry is a state inmate and a pro se litigator. On April 15, 1996, he
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filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

challenging his state conviction for possession of a controlled dangerous

substance after former conviction of two or more felonies. The district court

denied relief.

The numerous issues Mr. Asberry raised in the district court fall into three

areas: (1) the denial of his right to effective assistance of counsel on direct

appeal; (2) the denial of his right to effective assistance of counsel before and

during his jury trial; and (3) the denial of a fair trial due to prosecutorial

misconduct.

The case was referred to a magistrate judge who issued a sixteen-page

report recommending the denial of relief. The district court ultimately adopted

this report and recommendation in a four-page order that expanded upon the

reasoning offered by the magistrate judge. Basically, both judges determined Mr.

Asberry’s claims were meritless.

Mr. Asberry appeals the district court’s decision, asserting: (1) “The

United States District Judge err[]ed in denying the Petitioner’s request for the

State Court’s trial transcripts and original records to fully support his Fifth, Sixth,
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and Fourteenth Amendment claims in Federal Court”; (2) “The United States

District Judge err[]ed in ado[p]ting the Report and Recommendation of the

Magistrate Judge with regards to petitioner’s claims on his constitutional rights to

a fair trial and effective assistance of counsel”; and (3) “The United States

District Judge failed to address Petitioner’s claims of ineffective assistance of

trial counsel.” The district court denied Mr. Asberry a certificate of appealability

to pursue this appeal, finding he failed to make a “substantial showing of the

denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2). Mr.

Asberry now asks this court to grant him the required certificate of appealability.

The issues raised by Mr. Asberry in this appeal have no merit and warrant

little discussion. Mr. Asberry must, in relation to his claims of ineffective

assistance of counsel, show two facts (not merely conclusory allegations): (1) his

counsel’s performance was so defective that counsel was not functioning as the

counsel guaranteed by the Sixth Amendment; and (2) his counsel’s deficient

performance was so serious as to deprive him of a fair trial. See Strickland v.

United States, 466 U.S. 668, 687 (1984). A review of the record shows Mr.

Asberry failed to make either showing with respect to any of his claims. 

Furthermore, he did not show, as required, that the prosecutor’s conduct rendered

his trial “so fundamentally unfair as to deny him due process.” See Donnelley v.
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DeCristoforo, 416 U.S. 637, 645 (1974).

We agree with the district court that Mr. Asberry has failed to make a

“substantial showing of the denial of a constitutional right.” Consequently, we

deny his request for a certificate of appealability and DISMISS this appeal. See

28 U.S.C. § 2253(c).

Entered by the Court:

WADE BRORBY

United States Circuit Judge
Attachments not available electronically.