Marsh v. Newton

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 17, 2000
• Docket: 99-2284
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 17 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

SANDRA MARSH,

Petitioner-Appellant,

v. No. 99-2284 (D.C. No. CIV-95-360-JC/LFG) TOM NEWTON, Warden; (D. N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , 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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Petitioner-Appellant Sandra Marsh appeals from the district court’s order

denying her petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Appellant was convicted in state court of conspiracy to traffic in a controlled

substance and trafficking in a controlled substance. After exhausting her state

remedies, she brought this petition in federal district court. A federal magistrate

judge recommended that her petition be denied, and his recommendation was

adopted by the district court.

This matter comes before us on appellant’s request for a certificate of

appealability (COA). 1 Appellant requires a COA to proceed on appeal, and we

may issue one only if she has “made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, an

applicant must show that her petition “raises[es] issues that are debatable among

jurists, or that a court could resolve the issues differently, or that the questions

deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th

Cir. 1997).

Appellant raises the following issues: (1) the state’s failure to disclose the

existence of taped conversations prior to trial violated her right to due process;

1 Appellant requested a certificate of probable cause. Although this case was filed in district court prior to the effective date of the AEDPA amendments to § 2253, this appeal was filed afterwards and she therefore requires a COA to proceed on appeal. See Slack v. McDaniel , 120 S. Ct. 1595, 1602-03 (2000).

-2- (2) the state court’s failure to declare a mistrial based on the undisclosed tapes

chilled her right to testify in her own behalf and otherwise violated her

constitutional rights; (3) she received ineffective assistance of counsel at trial; (4)

there was not sufficient evidence to support her convictions; and (5) she received

ineffective assistance of counsel at sentencing. Having carefully reviewed

appellant’s brief, the record, and the applicable law, we conclude that she has

failed to make a substantial showing of the violation of a constitutional right.

Accordingly, her request for a COA is DENIED, and this appeal is DISMISSED.

Entered for the Court

Stephen H. Anderson Circuit Judge

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