116 F3d 1489 Babcock v. Boone H

116 F.3d 1489

97 CJ C.A.R. 1098

William Patrick BABCOCK, Petitioner-Appellant,
Bobby BOONE, Warden, Mack H. Alford Correctional Center;
Attorney General of the State of Oklahoma,

No. 96-7105.

United States Court of Appeals, Tenth Circuit.

June 26, 1997.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.

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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); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.


This case is before the court on petitioner William P. Babcock's application for a certificate of appealability to appeal the district court's denial of Babcock's 28 U.S.C. § 2254 habeas corpus petition. After concluding that Babcock had procedurally defaulted his claims for post-conviction relief by failing to raise them on direct appeal to the Oklahoma Court of Criminal appeals, Coleman v. Thompson, 501 U.S. 722, 750-53 (1991), the district court denied Babcock a certificate of appealability.


Section 102 of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 requires state habeas petitioners to obtain certificates of appealability prior to seeking appellate review of final orders in habeas proceedings. Pub.L. No. 104-132, 110 Stat. 1217 (April 26, 1996) (codified at 28 U.S.C. § 2253). A habeas petitioner is entitled to a certificate of appealability only if the petitioner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This court has recognized that the standard for granting a certificate of appealability under the AEDPA is the same as the standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880 (1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir.1996), cert. denied, 117 S.Ct. 746 (1996). Under the Barefoot standard, a certificate will issue only where the petitioner has demonstrated that the issues raised are debatable among jurists of reason, a court could resolve the issues differently, or the questions presented are deserving of further proceedings. 463 U.S. at 893 n. 4.


This court has reviewed Babcock's application for a certificate of appealability, briefs and contentions, and the entire record on appeal. Because Babcock has not demonstrated that the district court's conclusion that Babcock's claims are procedurally barred is subject to debate or deserving of further proceedings, we DENY Babcock a certificate of appealability and DISMISS his appeal.


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