UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID EUGENE EVANS,

Petitioner - Appellant,

v.

DAYTON POPPEL, Warden of Lawton Correctional Center, ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents - Appellees.

No. 04-5181

(N. D. Oklahoma)

(D.Ct. No. CV-02-293-H(M))

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before KELLY, O'BRIEN, and TYMKOVICH, 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 case is therefore ordered submitted without oral argument.

Petitioner-Appellant David Evans, a state prisoner appearing pro se, seeks a certificate of appealability ("COA") allowing him to appeal the district court's order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because we determine that Evans has not made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and dismiss the appeal.

The parties are familiar with the facts, and we need not restate them here. On appeal, Evans reasserts the claims he presented below, specifically that (1) there was insufficient evidence to prove the essential elements of trafficking in drugs (after former conviction of two or more felonies), and (2) he received ineffective assistance of trial counsel. After careful consideration of the materials submitted by Evans against a backdrop of the state court record, it is apparent the conclusions of the district court are not reasonably debatable. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); R. Docs. 15, 16.

For substantially the same reasons set forth by the district court, we DENY Evans' request for a COA and DISMISS the appeal.

Entered by the Court:

Terrence L. O'Brien

United States Circuit Judge