UNITED STATES COURT OF APPEALS
Filed 8/22/96
FOR THE TENTH CIRCUIT
DANNY DUNSWORTH,
Petitioner-Appellant,
v. No. 95-2147
(D.C. No. CIV-91-1008-SC)
JOHN SHANKS, Warden, (D. N.M.)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before EBEL, BARRETT, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the doctrines of law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.
Danny Dunsworth appeals from the district court’s denial of his habeas petition,
filed pursuant to 18 U.S.C. § 2254. Our jurisdiction over this appeal arises from
28 U.S.C. § 1291. After Dunsworth filed his notice of appeal, the district court issued an
order denying him a certificate of probable cause. This court construed Dunsworth’s
notice of appeal as a renewal of his request for a notice of probable cause. See Fed. R.
App. P. 22(b). Further, in light of the passage of new legislation affecting the procedures
for habeas corpus appeals, see Lennox v. Evans, 87 F.3d 431, 432 (10th Cir. 1996), we
construe the request as an application for a certificate of appealability. Id. at 434.
Applying the standards of the newly enacted 28 U.S.C. § 2253(c)(2),1 we conclude
that Dunsworth “has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). His habeas petition alleges that 1) he received ineffective
assistance of counsel, and 2) his guilty plea was coerced and involuntary. These
allegations caused the district court to appoint counsel and hold a hearing. The district
court’s order, adopting the magistrate judge’s report, weighed the evidence from both the
state record and the hearing and made detailed findings of fact. Application of the law to
those facts was not a simple matter, requiring the discussion of many cases and standards.
1
Lennox held that the newly enacted certificate of appealability provision, 28 U.S.C.
§ 2253(c)(2), codified the standard set out in Barefoot v. Estelle, 463 U.S. 880, 892-93
(1983), for the issuance of a certificate of probable cause. 87 F.3d at 434. Because “the
standard governing the issuance of a certificate of appealability [under the newly enacted
legislation] requires the same showing as that for obtaining a certificate of probable cause
[under previous law],” id., the court in Lennox applied the new legislation as law “in effect
at the time we render our decision.” Id. We do likewise.
2
We conclude that “the issues raised are debatable among jurists, [and] that a court could
resolve the issues differently,” Smith v. Secretary of N.M. Dep’t of Corrections, 50 F.3d
801, 820 (10th Cir.)(quotation omitted)(citing Barefoot v. Estelle, 463 U.S. 880, 893 &
n.4 (1983)), cert. denied, 116 S. Ct. 272 (1995). Our conclusion is bolstered by this
court’s order appointing Dunsworth counsel on appeal. Accordingly, we grant
Dunsworth a certificate of appealability on both of the issues presented to the district
court.
On appeal, Dunsworth argues that his counsel failed to investigate his case and
that his counsel represented him while under a conflict of interest, which deficiencies
amounted to the denial of effective counsel, guaranteed by the sixth amendment. Further,
he contends that as a result of his attorney’s ineffective representation, his guilty plea to
the underlying charges was involuntary. “In reviewing the district court’s denial of
[petitioner’s] habeas corpus petition, we accept the court’s findings of fact unless clearly
erroneous and we review the court’s conclusions of law de novo.” Brewer v. Reynolds,
51 F.3d 1519, 1522 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996). After our
careful review of the record on appeal, including supplemental volumes containing the
state court record and the transcript of the district court’s hearing on Dunsworth’s habeas
petition, we conclude that the district court correctly decided this case. Therefore, for
substantially the same reasons contained in the magistrate judge’s proposed findings and
recommended disposition, dated May 8, 1995, and adopted by the district court in its
3
order dated June 20, 1995, the judgment of the United States District Court for the
District of New Mexico is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
4