* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GILBERT H. CONNALLY,

Petitioner-Appellant,

v. BOBBY BOONE,

Respondent-Appellee. No. 97-6221 (W. Dist. of Oklahoma) (D.C. No. CIV-95-1910)

ORDER AND JUDGMENT *

BeforeSEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordere d submitted without oral argument.1 Because Connally filed his habeas petition in 1995, before the enactment

of the Antiterrorism and Effective Death Penalty Ac t of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 State. 1214, the AEDPA’s certif icate of appealability requirements do not apply to this appeal. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Instead, the pre- AEDPA certificate of probable cause requirements apply here. Nevertheless, despi te the label this court attaches to the requirements, Connally’s substantive burden is the same. See Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part by Kunzman , 125 F.3d at 1364 n.2. Accordingly, this court wi ll liberally construe Connally’s application for a certificate of appealability as an application for a certificate of probable cause. -2- Petitioner Gilbert H. Connally, appearing pro se , petitioned the district court for a writ of habeas corpus pursuant to 28 U. S.C. § 2254. The district court denied the petition. We DENY Connally a certificat e of probable cause and DISMISS this appeal. 1 Connally was convicted by an Oklahoma jury of distr ibution of a controlled dangerous substance and was sentenced to a sixty-ye ar prison term. His conviction was upheld on direct appeal and several subsequent state postconviction proceedings failed to provide Connal ly relief from the conviction or sentence. Connally then filed the instant petit ion pursuant to § 2254 alleging seventeen claims of error. After the claims were r eferred to a magistrate judge for initial proceedings, the magistrate recommendedthat Connally’s petition be denied. Connally thereafter filed written objectio ns which presented the following two issues for the district court’s revie w: (1) whether his Sixth Amendment rights were violated through an invalid w aiver of counsel; and (2)-3-

whether he had sufficiently established his actual innocence to overcome the procedural bar to the review of his other claims of error. In response to Connally’s limited objections, the district court c orrectly noted that Connally had waived review of the magistrate’s recommendations a s to issues not identified in the objections. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). As to the specific objections raised by Connally, the district court concluded the record established a knowing, voluntary, and intell igent waiver of his right to counsel and that Connally had failed to make a suff icient showing of actual innocence to overcome the procedural bar. This court has conducted a de novo review of Connally’s brief and application for a certificate of probable cause, th e magistrate’s Report and Recommendation and district court’s Order, and the entire record on appeal. In light of that review, we conclude that Connally has failed to make a “substantial showing of the denial of a constitutional right” fo r substantially the reasons set for in the district court’s order dated June 6, 199 7. See Barefoot v. Estelle , 463 U.S. 880 & n.4 (1983) (holding that a certificate o f probable cause should only issue where petitioner has demonstrated the issues raised are (1) debatable among jurists of reason, (2) a court could resolve the is sues differently, or (3) the questions presented are deserving of further procee dings.”). Accordingly, this-4-

court DENIES Connally a certificate of probable cause and DISMISSES the appeal. Connally’s “Motion to Produce Exculpatory Evidence” is DENIED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge