UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES LEON CHEATHAM,

Petitioner-Appellant,

v.

RON WARD,

Respondent-Appellee.

No. 99-6254

(W. Dist. of Oklahoma)

(D.C. No. CIV-97-1464-R)

ORDER AND JUDGMENT*

Before TACHA, McKAY, and MURPHY, Circuit Judges.

After examining the briefs and 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)(2); 10th Cir. R. 34.1(G). The court therefore honors the petitioner's request and orders the case submitted without oral argument.

This case is before the court on petitioner Charles Leon Cheatham's request for a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253(c).2 Cheatham seeks a COA so that he can appeal the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 petition unless the petitioner first obtains a COA). Cheatham is entitled to a COA only if he can make a substantial showing of the denial of a constitutional right. See id. § 2253(c)(2). Cheatham can make such a showing by demonstrating that the issues he raises are deserving of further proceedings, reasonably debatable among jurists of reason, or subject to a different resolution on appeal. Barefoot v. Estelle, 463 U.S. 880, 893 (1983).

In a thorough and extensive Report and Recommendation, a magistrate judge recommended that Cheatham's petition be denied on the merits. In an equally thorough and well-reasoned Memorandum Opinion and Order, the district court accepted the magistrate's recommendations and dismissed Cheatham's petition. The court has undertaken a close review of Cheatham's request for a COA and appellate brief, the magistrate judge's Report and Recommendation, the district court's Memorandum Opinion and Order, and the entire record on appeal. That close review demonstrate's that the district court's resolution of Cheatham's claims is neither subject to a different resolution on appeal nor deserving of further proceedings. Accordingly, this court DENIES Cheatham's request for a COA for substantially those reasons set out in the magistrate judge's Report and Recommendation dated July 31, 1998 and the district court's Memorandum Opinion and Order dated December 23, 1998, and DISMISSES the appeal.3

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge