F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 11 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MERRILL BURROUS
CHAMBERLAIN,
Petitioner - Appellant, No. 00-2465
v. (D.C. No. CIV-95-167-LH)
JOHN SHANKS, Warden; and (D. New Mexico)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Petitioner fatally shot a police officer and was subsequently tried for
murder, among other things, in New Mexico state court. The first trial resulted in
*
This order and judgment is not binding precedent, except under the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.
a hung jury. The second trial, which involved new defense counsel and a
different defense strategy, resulted in a conviction. That conviction was affirmed
on appeal by the New Mexico Supreme Court. See State v. Chamberlain, 819
P.2d 673 (N.M. 1991). Petitioner subsequently sought federal court review of his
state court conviction pursuant to 28 U.S.C. § 2254. In the habeas petition, he
alleged that numerous constitutional violations occurred during his second trial,
including improper jury instructions, ineffective assistance of counsel, and
various denials of due process. The matter was referred to a magistrate judge
who recommended rejecting all of Petitioner’s claims on the merits. After de
novo review, the district court adopted the magistrate judge’s recommendation.
Petitioner then requested a certificate of appealability, as he must under 28 U.S.C.
§ 2253, for leave to appeal the district court’s decision. That request was denied.
Petitioner, now proceeding pro se, has renewed his pursuit of a certificate of
appealability with this court.
A court should grant a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Petitioner could do so by demonstrating that his claims warrant
further proceedings, “subject to a different resolution on appeal,” or are debatable
among reasonable jurists. See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.
2000). After carefully reviewing Petitioner’s “Application for Certificate of
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Appealability” in conjunction with the magistrate judge’s thorough, considered
opinion and State v. Chamberlain, 819 P.2d 673 (rejecting some of the same
arguments currently asserted in Petitioner’s habeas petition), we conclude that
Petitioner has failed to make the necessary showing. We can do no better than the
Magistrate Judge’s Proposed Findings and Recommended Disposition filed on
August 1, 2000, in explaining why. 1 The request for a certificate of appealability
is DENIED and this appeal is DISMISSED. 2
Entered for the Court
Monroe G. McKay
Circuit Judge
1
We note that while the magistrate judge and the district court did not apply
the Antiterrorism and Effective Death Penalty Act of 1996 to Petitioner’s habeas
proceeding, that act applies to this appeal. See Slack v. McDaniel, __ U.S. __,
120 S. Ct. 1595, 1602-03 (2000).
2
We also DENY Petitioner’s recently filed “Motion for Production of
Transcript of the 5/12/97 Hearing Held Without Appellant’s Presence and
Knowledge.” The 5/12/97 transcript referred to is from an unrelated case and was
erroneously included in the instant case’s record on appeal.
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