UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GREGORY ROCSHON LEWIS,

Petitioner - Appellant,

v.

H. N. "SONNY" SCOTT,

Respondent - Appellee.

No. 97-6380

(	D.C. No. 97-CV-341)

(W.D. Okla.)

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