F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 27 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JORGE ANTONIO CHAVEZ
GONZALES, a/k/a JORGE
ANTONIO CHAVEZ,
Petitioner-Appellant,
v. No. 00-6336
(D.C. No. 99-CV-1805-R)
THE STATE OF OKLAHOMA; (W.D. Okla.)
JAMES L. SAFFLE, Director of the
Oklahoma Department of Corrections,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before EBEL , ANDERSON , and KELLY , Circuit Judges.
After examining petitioner’s brief 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)(2); 10th Cir. R. 34.1(G).
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This order and judgment is not binding precedent, except under the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.
Petitioner Jorge Antonio Chavez Gonzales, also known as Jorge Antonio
Chavez, an Oklahoma state prisoner convicted by a jury of assault and battery
with a dangerous weapon, seeks a certificate of appealability (COA) to challenge
the district court’s order adopting the magistrate judge’s recommendation 1
to
deny his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
See 28 U.S.C. § 2253(c)(1)(A) (no appeal unless COA issued). He has also
requested leave to proceed on appeal without prepayment of fees. That request is
granted. See McIntosh v. United States Parole Comm’n , 115 F.3d 809, 812-13
(10th Cir. 1997) (stating leave to proceed in forma pauperis requires financial
inability to pay and showing of nonfrivolous argument to support claims).
Upon consideration of the issues raised, we deny issuance of a COA and
dismiss the appeal.
The parties are familiar with the underlying facts; therefore, we do not
repeat them. On appeal, petitioner argues he is entitled to habeas relief because
his trial attorney provided constitutionally ineffective assistance of counsel for
failing to (1) obtain and present the testimony of Jessie Rios that the victim
admitted that the shooting was an accident; (2) memorialize the victim’s
statement to defense counsel that the shooting was an accident, thus preventing
1
The case was referred to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B).
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him from using the statement to impeach the victim; (3) present evidence of
a laboratory report, an emergency room report, and the physical evidence of the
victim’s dusty pants. According to Mr. Gonzales, the laboratory and emergency
room reports were necessary to prove that the victim had ingested cocaine and
cannabis prior to the shooting. The pants would show that the victim had fallen,
contrary to her testimony that she had not. Mr. Gonzales has abandoned on
appeal the remaining issues raised to the district court.
This case is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA). Before a COA will issue, petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To do so, he
must demonstrate “that reasonable jurists could debate whether (or, for that matter
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted).
We have carefully reviewed petitioner’s brief and the appellate record. For
substantially the same reasons underlying the magistrate judge’s July 27, 2000
report and recommendation and the district court’s September 15, 2000 order,
we conclude that petitioner “has failed to raise issues that are debatable among
jurists, or that a court could resolve the issues differently, or that the questions
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deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91, 91
(10th Cir. 1997).
The motion for leave to proceed in forma pauperis is granted. The
application for issuance of a COA is denied. Appeal DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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