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Petitioner Mark Kent Nolan, a prisoner of the State of Oklahoma appearing pro se, appeals from the denial of his petition for habeas relief filed under 28 U.S.C. § 2254. He has also filed an application for a certificate of appealability and a motion for leave to proceed on appeal in forma pauperis.

Petitioner is serving a thirty-five year sentence imposed after his conviction of first degree burglary and possession of a firearm after conviction of a felony. He argues⁽¹⁾ that: (1) the charging information was constructively amended, violating his right to due process; (2) his conviction for first degree burglary, in light of his acquittal on a charge of assault with a deadly weapon, violated his right to be free from double jeopardy; (3) evidence from the first phase of the bifurcated trial was improperly used in the second phase; (4) he was denied effective assistance of trial counsel; and (5) he was denied effective assistance of appellate counsel. The magistrate judge analyzed each of petitioner's claims and recommended that the petition be dismissed. The district court adopted the magistrate judge's recommendation.

Because petitioner filed his § 2254 petition in June 1998, the certificate of appealability provisions of the Antiterrorism and Effective Death Penalty Act of 1996 apply. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). To obtain a certificate of appealability, petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

We have reviewed the magistrate judge's report and recommendation, the district court's order, the parties' materials, and the record on appeal. We find no error. Accordingly, for substantially the same reasons as those set forth in the magistrate judge's carefully prepared report and recommendation, as adopted by the district court, petitioner's application for a certificate of appealability is DENIED, the motion to proceed on appeal in forma pauperis is DENIED, and the appeal is DISMISSED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge

^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The 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.

^1. Petitioner also argues that the discrepancy between the charging information and the proof at trial amounted to a prejudicial variance. Petitioner raised this argument for the first time in his objections to the magistrate judge's report and recommendation. See R. Doc. 19, at 1. Accordingly, we deem the issue waived and do not address it. See Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

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