01-1221 -- Swendra v. Soares -- 12/07/2001

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALAN DAVID SWENDRA,

Petitioner - Appellant, No. 01-1221

v. (D.C. No. 98-N-1949)

RICK SOARES, Superintendent, Limon Correctional Facility; and KEN SALAZAR, Attorney General, State of Colorado, (D. Colorado)

Respondents - Appellees.

ORDER AND JUDGMENT^(*)

Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit Judge.

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.
Alan David Swendra appeals the District of Colorado's dismissal of his § 2254 habeas petition and the district court's refusal to grant a certificate of appealability.
We have thoroughly reviewed the magistrate judge's recommendation, the district court's decision, and the record. We adopt the magistrate judge's well- documented findings and dismiss Mr. Swendra's § 2254 habeas petition. We also deny Mr. Swendra's application for a certificate of appealability. Mr. Swendra has failed to "demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Nor has Mr. Swendra shown that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," as required to issue a COA when the district court denies a habeas petition on procedural grounds. Id.
Mr. Swendra's motion to proceed in forma pauperis is granted, and the appeal is DISMISSED.
Entered for the Court
Monroe G. McKay
Circuit Judge

FOOTNOTES
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^*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.
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ALAN DAVID SWENDRA,
Petitioner - Appellant,	No. 01-1221
v.	(D.C. No. 98-N-1949)
RICK SOARES, Superintendent, Limon Correctional Facility; and KEN SALAZAR, Attorney General, State of Colorado,	(D. Colorado)
Respondents - Appellees.