UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEWIS LAVERN SETLIFF,

Petitioner - Appellant,

v.

R. MICHAEL CODY,

Respondent - Appellee.	No. 97-6144

(D.C. No. 95-CV-962)

(Western District of Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK and LUCERO, Circuit Judges.

Petitioner Lewis Lavern Setliff seeks leave to appeal from the district court's decision adopting the magistrate judge's report and recommendation and dismissing Mr. Setliff's petition for a writ of habeas corpus under 28 U.S.C. § 2254. We construe petitioner's application for a certificate of appealability as one for a certificate of probable cause to appeal. 1

In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that "a certificate of probable cause requires petitioner to make a substantial showing of the denial of a federal right." 463 U.S. at 893 (citations omitted). This requires that the petitioner demonstrate that the issues presented are debatable among jurists of reason, that a court could resolve the issues differently or that the questions deserve further proceedings. See id. at 893 n.4. After careful examination of petitioner's application, the district court's order and the magistrate judge's report and recommendation, we conclude that Mr. Setliff has failed to make the required showing. Consequently, petitioner's request for a certificate of probable cause is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge