UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PHILLIP CORDOVA,

Petitioner-Appellant,

v.

ROB PERRY, Secretary of the New Mexico Department of Corrections; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO,

Respondents-Appellees.

No. 96-2179

(D.C. No. CIV-95-1505-JP)

(D. N.M.)

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Phillip Cordova appeals the district court's decision adopting the magistrate judge's report and recommendation, dismissing Mr. Cordova's petition for a writ of habeas corpus under 28 U.S.C. § 2254. After Mr. Cordova filed his notice of appeal, the district court issued an order denying him a certificate of appealability and, pursuant to Fed. R. App. P. 22(b), we will consider Mr. Cordova's notice of appeal to constitute a request for issuance of a certificate of probable cause for appeal.1 In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that "a certificate of probable cause requires petitioner to make a substantial showing of the denial of a federal right." 463 U.S. at 893 (citations omitted). This requires that the petitioner demonstrate that the issues presented are debatable among jurists of reason, that a court could resolve the issues differently or that the questions deserve further proceedings. See id. at 893 n.4. After careful examination of petitioner's application, the entire record, the district court's order and the magistrate judge's report and recommendation, we conclude that petitioner has failed to make the required showing. Consequently, petitioner's request for a certificate of probable cause is DENIED and the appeal is DISMISSED. Petitioner's claims that the magistrate judge exceeded his authority under, or otherwise did not follow the procedures of, 28 U.S.C. § 636(b) are without merit. All outstanding motions are denied. The mandate shall issue forthwith.

Entered for the Court

Monroe G. McKay

Circuit Judge