UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CONNIE L. BROWN,

Petitioner-Appellant,

vs.

STEVE HARGETT,

Respondent-Appellee.

No. 97-6395

(	D.C. No. CIV-97-499-C)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.**

Mr. Brown, a state prisoner appearing pro se and in forma pauperis, seeks to appeal from the district court's denial of his habeas petition, 28 U.S.C. § 2254. The district court construed Mr. Brown's notice of appeal to this court as a

request for a certificate of appealability and denied the request. After a careful review of the record, we conclude Mr. Brown has not made "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and deny his application for a certificate of appealability.

Mr. Brown's opening brief in this court, which incorporates by reference his objections to the magistrate's report and recommendation, challenges the magistrate's disposition of his due process claim and asserts the magistrate failed to address Mr. Brown's claim that his counsel rendered ineffective assistance by failing to investigate an insanity defense. Mr. Brown's latter argument was not properly before the magistrate because he raised it in his reply brief, see Aplt. Brief at 3, and we will not consider it on appeal. See Coleman v. B-G Maintenance Management of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997). As to Mr. Brown's due process claim, we are in substantial agreement with the magistrate's report and recommendation. See R. doc. 10 at 2-10.

APPEAL DISMISSED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge