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Petitioner, appearing pro se, asks this court to grant him a certificate of appealability, so that he can appeal the district court's denial of his petition for writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2254. We will issue a certificate of appealability only if petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2)(1). Where, as here, the district court rejected the constitutional claims on the merits, "petitioner must demonstrate that reasonable jurists would find [it's] assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because we find the district court's assessment of petitioner's claims neither debatable nor wrong, we deny his application for a certificate of appealability and DISMISS the appeal.⁽¹⁾

Entered for the Court

Wade Brorby

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Although he does make passing mention of the claims he argued before the district court (sufficiency of the evidence and ineffective assistance of both trial and appellate counsel), petitioner's only substantive argument on appeal relates to the trial court's refusal to instruct the jury on the crime of Assault and Battery With a Dangerous Weapon. He did not raise this argument in his habeas petition before the district court, and the district court declined to address the issue when petitioner raised it in his supplemental request for rehearing. Consequently, the issue would not be considered on appeal. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992). We note, however, as did the Oklahoma Court of Criminal Appeals when petitioner raised this issue on direct appeal, that Assault and Battery With a Dangerous Weapon is not a lesser included offense of First Degree Murder, and the record shows that the jury was instructed on lesser included offenses. See Smith v. State, 727 P.2d 1366, 1371 (Okla. Crim. App. 1986). Contrary to petitioner's assertion, Smith does not conflict with Jackson v. State, 964 P.2d 875 (Okla. Crim. App. 1998).

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