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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before PORFILIO, KELLY, and HENRY,
Circuit Judges.(**)
Mr. Lewis seeks to appeal from the denial of his habeas petition, 28 U.S.C.
§ 2254. Upon recommendation of the magistrate judge, the district court denied
the petition, in forma pauperis status for an appeal, and a certificate of
appealability. We have reviewed the record, grant Mr. Lewis's motion for leave
to proceed on appeal without prepayment of costs or fees, but conclude that he
has not made "a substantial showing of the denial of a constitutional right," 28
U.S.C. § 2253(c)(2), and therefore deny his application for a certificate of
appealability. The predicate of Mr. Lewis's claims, ineffective assistance of
counsel, was considered on the merits by the Oklahoma Court of Criminal
Appeals, R. doc. 17, ex. A at 2, so the claim is not procedurally barred, see Ylst
v. Nunnemaker, 501 U.S. 797, 801 (1991), and there is no need to consider the
issue of procedural bar in the context of Oklahoma's direct appeal procedure, see
English v. Cody, Nos. 97-5004 & 97-5132, 1998 WL 348019 (10th Cir. June 30,
1998). As to the merits, we are in substantial agreement with the Supplemental
Report and Recommendation of the magistrate judge, see R. doc. 30 at 6-17.
APPEAL DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
FOOTNOTES
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*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**. After examining the briefs and the
appellate record, this three-judge
panel has determined unanimously that oral argument would not 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 ordered submitted without oral argument.
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