UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN ANDERSON,
Petitioner-Appellant,	No. 01-1173
v.	(D.C. No. 98-N-140)
JUANITA NOVAK and ATTORNEY GENERAL OF THE STATE OF COLORADO,	(D. Colo.)
Respondents-Appellees.

ORDER AND JUDGMENT*

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

After examining the briefs and the 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 case is therefore ordered submitted without oral argument.

Mr. Anderson appeals the district court's rejection of his § 2254 habeas petition. The district court adopted the magistrate judge's recommendation that Mr. Anderson's petition be rejected as time-barred under AEDPA. Alternatively, the district court ruled that all but one of Mr. Anderson's claims were procedurally defaulted. The district court dismissed Mr. Anderson's remaining claim of constitutional error in his in-court identification on the merits under the totality of the circumstances test.

After a thorough review of the record, we conclude that the district court correctly denied Mr. Anderson's petition. For the same reasons set forth in the magistrate judge's recommendation, we dismiss Mr. Anderson's habeas petition. However, we take no position as to whether Mr. Anderson's claims are time-
barred under AEDPA. Mr. Anderson's procedural default of the majority of his claims and his failure to show that the method of his in-court identification was constitutionally deficient under the totality of the circumstances test is sufficient, standing alone, to reject his petition.

We DENY Mr. Anderson's application for a certificate of appealability and DISMISS his appeal. We also DENY his motion to proceed in forma pauperis as moot.

Entered for the Court

Monroe G. McKay

Circuit Judge