UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANCISCO MONTANO,

Petitioner-Appellant,

v.

JAY SHELTON, Warden and ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees.

No. 97-3091

(District of Kansas)

(D.C. No. 93-CV-3523)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO 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 Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Francisco Montano, appearing pro se, appeals the district court's denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Montano claims that he is entitled to a writ of habeas corpus on the following grounds: (1) the trial court erred in allowing Montano to be cross examined in English when his primary language is Spanish; (2) the state obtained evidence through statements Montano made to police and through a warrantless search of Montano's home based on unlawful waivers of Montano's rights.1 In denying Montano's petition, the district court concluded as follows: (1) Montano failed to establish that the trial court rendered his trial fundamentally unfair when it allowed Montano to be cross examined in English because "the trial evidence and [Montano's] cross examination testimony fully demonstrated [Montano's] working understanding and use of English, and . . . [Montano] fail[ed ] to identify how the outcome of his trial would have been altered if his cross examination had not been conducted in English with an interpreter available for assistance; and (2) the state court made factual findings, which are presumed correct and may only be set aside if not fairly supported by the record, that Montano sufficiently understood the Miranda warnings and the consent form for the search. Montano appeals. This court exercises jurisdiction pursuant to 28 U.S.C. § 2253 (1994) and 28 U.S.C. § 1291 and affirms.2

This court has reviewed de novo Montano's brief, the district court's order, and the entire record on appeal. Based on that review, we affirm for substantially the reasons set out in the district court's well-reasoned Memorandum and Order dated March 25, 1997.

The judgment of the United States District Court for the District of Kansas is hereby AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge