UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PHILLIP LUCERO,

Petitioner-Appellant,

v.

JOHN SHANKS, Warden, and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.

No. 98-2044

(D.C. No. CIV-96-160-MV)

(D. N.M.)

ORDER AND JUDGMENT*

Before TACHA, BARRETT, and MURPHY, 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Petitioner Phillip Lucero seeks a certificate of probable cause to appeal the district court's dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.1 "[W]e may grant habeas relief to a state prisoner only if state court error 'deprived him of fundamental rights guaranteed by the Constitution of the United States.'" Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998) (quoting Brinlee v. Crisp, 608 F.2d 839, 843 (10th Cir. 1979)). Because Lucero filed his habeas petition prior to the enactment of AEDPA, "we apply pre-amendment standards of review." Id. We review the dismissal of a § 2254 petition de novo, giving deference to the state court's construction of state law. See id. We review the district court's factual findings for clear error, presuming the factual findings of the state court to be correct. See id.

We have reviewed the record on appeal, the report and recommendation of the magistrate judge, the district court's orders, Lucero's brief and supporting documents, and his application for a certificate of probable cause. We grant Lucero's motion to withdraw from appellate review issues numbered one through thirteen in his § 2254 habeas petition. We conclude that Lucero has failed to make a "substantial showing of the denial of [a] federal right" by demonstrating the issues raised are "debatable among jurists of reason," or that another court could resolve the issues differently, or that the questions deserve further proceedings. Barefoot, 463 U.S. at 893 n.4 (quotations omitted).

Therefore, for substantially the reasons stated in the magistrate judges's findings and recommendation dated December 22, 1997, and the district court's July 24, 1998 order, we DENY Lucero's application for a certificate of probable cause and DISMISS his appeal.

The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha

Circuit Judge