F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 9 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN HERRERA,
Petitioner-Appellant,
v.
No. 97-2325
(Dist. of New Mexico)
TIM LEMASTER, Warden, New
(D.C. No. CIV-97-737-LH)
Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has unanimously determined that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
*
This order and judgment is not binding precedent, except under the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.
Cir. R. 34.1.9. Petitioner’ request to submit the case on the briefs is granted, and
the case is ordered submitted without oral argument.
John Herrera, proceeding pro se and in forma pauperis , seeks a certificate
of appealability to appeal the district court’s denial of habeas corpus petition
brought pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing
that “[u]nless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from the final order in a habeas
corpus proceeding in which the detention complained of arises out of process
issued by a state court”). Because Herrera has failed to make “a substantial
showing of the denial of a constitutional right,” we deny Herrera’s request for a
certificate of appealability and dismiss the appeal. See id . § 2253(c)(2)
(certificate of appealability will issue only upon substantial showing of denial of
constitutional right); Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (holding that a
petitioner can make a substantial showing of the denial of constitutional right by
demonstrating that the issues raised are debatable among jurists, that a court
could resolve the issues differently, or that the questions deserve further
proceedings).
Upon de novo review of Herrera’s application for a certificate of
appealability and brief, the magistrate judge’s Report and Recommendation, and
the entire record on appeal, this court concludes that Herrera has failed to
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demonstrate that the district court’s resolution of his petition is debatable or is
reasonably subject to a different outcome on appeal to this court. This same
review leads us to conclude that none of the issues raised by Herrera are
deserving of further proceedings. Because Herrera has not made a substantial
showing of the denial of a constitutional right, this court DECLINES Herrera’s
request for a certificate of appealability and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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