UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ERNEST DERVON LINDSEY, JR.,

Petitioner-Appellant,

v.

RON CHAMPION,

Respondent-Appellee.

No. 96-6416

(D.C. No. CIV -95-433-T)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.

After examining petitioner's appellate brief and the 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.

Petitioner seeks review of the district court's order denying his petition for habeas relief under 28 U.S.C. § 2254. Before petitioner can proceed on appeal, however, he must secure a certificate of probable cause from this court, pursuant to 28 U.S.C. § 2253. 1 Based upon our review of the record as a whole, we conclude that petitioner has failed to make a substantial showing of a denial of a constitutional right.

We, therefore, DENY the application for a certificate of probable cause, and DISMISS the appeal.

The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero

Circuit Judge