Darrell Wayne Cain, Petitioner-appellant, v. R. Michael Cody, Warden, Attorney General of the State Ofoklahoma, Respondents-appellees, 39 F.3d 1191 (10th Cir. 1994)

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

Darrell Wayne Cain, appearing pro se, appeals from the district court's dismissal of his 28 U.S.C. 2254 petition for a writ of habeas corpus.

We grant Cain's application for a certificate of probable cause simply in order to reach the merits of his appeal.

Petitioner Cain was tried and convicted by a jury in an Oklahoma state district court of unlawful distribution of marijuana after a former conviction of a felony, and maintaining a dwelling house for keeping of a controlled dangerous substance. He was sentenced to ten years imprisonment and fined. He has exhausted all available state remedies.

In his petition filed in the federal district court, Cain claimed that the state courts denied him due process of law and equal protection in (1) omitting the essential element of "knowingly or intentionally" from jury Instruction 20 defining the offense of Maintaining a Dwelling House Used for Keeping a Controlled Substance, (2) refusing to grant his Supplemental Petition for Rehearing in the Oklahoma Court of Criminal Appeals, (3) applying retroactively a new substantive rule to the effect that an appellant is barred from raising issues on rehearing which could have been raised on direct appeal, (4) denying his request for an evidentiary hearing to question Leon Glenn, Dub Turner and David Tedrick concerning an alleged deal the Oklahoma Bureau of Narcotics made with informer David Tedrick, and (5) refusing to address the above stated grounds on the merits.

The matter was referred to United States Magistrate Judge Gary M. Purcell who entered his Report and Recommendation on February 28, 1994, recommending that the petition for a writ of habeas corpus be denied. Petitioner Cain filed his objections thereto, and the district court thereafter adopted the magistrate judge's Report and Recommendation in its entirety and dismissed Cain's petition.

On appeal, Cain substantially advances the same issues that he asserted in the district court, contending that he has suffered the "fundamental miscarriage of justice" addressed in Coleman v. Thompson, 501 U.S. ---, 115 L. Ed 2d 640 (1991). He asks that we review "this appeal on the merits, and reject or modify in whole or in part the findings and recommendations and grant any other relief to which Appellant is entitled." (Appellant's Reply Brief to Appellee's Answer Brief, p. 3).

We affirm for substantially the reasons set forth in the United States Magistrate Judge's "Report and Recommendation" filed February 28, 1994.