*This order and judgment is not binding precedent except under the doctrines of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 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, 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.
Mr. Asberry is a state inmate and a pro se litigator. On April 15, 1996, he-2-

filed a petition for a writ of habeas corpus pursua nt to 28 U.S.C. § 2254, challenging his state conviction for possession of a controlled dangerous substance after former conviction of two or more fe lonies. The district court denied relief.
The numerous issues Mr. Asberry raised in the distr ict court fall into three areas: (1) the denial of his right to effective as sistance of counsel on direct appeal; (2) the denial of his right to effective as sistance of counsel before and during his jury trial; and (3) the denial of a fairtrial due to prosecutorial misconduct.
The case was referred to a magistrate judge who iss ued a sixteen-page report recommending the denial of relief. The dist rict court ultimately adopted this report and recommendation in a four-page orderthat expanded upon the reasoning offered by the magistrate judge. Basical ly, 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 record s to fully support his Fifth, Sixth,-3-

and Fourteenth Amendment claims in Federal Court”; (2) “The United States District Judge err[]ed in ado[p]ting the Report andRecommendation of the Magistrate Judge with regards to petitioner’s claim s 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 claim s of ineffective assistance of trial counsel.” The district court denied Mr. Asbe rry 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 requir ed certificate of appealability.
The issues raised by Mr. Asberry in this appeal hav e no merit and warrant little discussion. Mr. Asberry must, in relation t o his claims of ineffective assistance of counsel, show two facts (not merely c onclusory 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 f air 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 d ue process.” See Donnelley v.-4-

DeCristoforo , 416 U.S. 637, 645 (1974).
We agree with the district court that Mr. Asberry h as failed to make a “substantial showing of the denial of a constitutio nal 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 JudgeAttachments not available electronically.