UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LUIS HUMBERTO TARANGO MARTHA,
Petitioner-Appellant,	No. 01-1579
v.	(D.C. No. 01-Z-1890)
HOYT BRILL and ATTORNEY GENERAL OF THE STATE OF COLORADO,	(D. Colorado)
Respondents-Appellees.

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MURPHY, 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.

This is a pro se § 2254 prisoner appeal. Mr. Martha was convicted of sexual assault on a child and was initially sentenced to probation. Probation was revoked and he was sentenced to seven years of imprisonment and five years of mandatory parole.

In his federal habeas petition, Mr. Martha claims his constitutional rights were violated because he was not indicted by a grand jury as provided by the Fifth Amendment. The district court denied the § 2254 motion on the merits. The district court noted that the Fifth Amendment right to charging by grand jury is not applicable in state actions and that in Colorado a criminal action can arise from information, complaint, or grand jury indictment. The district court also denied Mr. Martha's motion for reconsideration and his request for a certificate of appealability. Petitioner then applied to this court for a certificate of appealability.2

In order for this court to grant a certificate of appealability, Petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To do so, Petitioner must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

We have carefully reviewed Mr. Martha's brief, the district court's disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Appellant's brief raises an issue which meets the standards for the grant of a certificate of appealability. For substantially the same reasons as set forth by the district court in its Order of October 16, 2001, we cannot say that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner." Id. We DENY Petitioner's request for a certificate of appealability and DISMISS the appeal.

Appellant's motion to proceed in forma pauperis on appeal is GRANTED.

Entered for the Court

Monroe G. McKay

Circuit Judge