Nash v. Jordan

33 F. App'x 474

Opinion

ORDER AND JUDGMENT

Footnotes

•

*

McKAY, 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.

This is a petition for habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his counsel was ineffective in connection with his plea to a recidivist enhancement to his state court conviction based on his guilty plea.

In a thorough Report and Recommendation dated April 23, 2001, the magistrate judge set forth why the petition clearly failed to raise a federal constitutional issue. The trial court, after review, adopted that report and denied relief. It also denied a certificate of appealability and permission to proceed in forma pauperis. Petitioner then applied to this court for a certificate of appealability and renewed his application to proceed in forma pauperis.

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, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted).

We have carefully reviewed Mr. Nash’s brief, the district court’s disposition, and the record on appeal. Nothing in Petitioner’s filing or the underlying record raises any question about the magistrate judge’s report or the trial court action which qualifies this appeal for a certificate of appealability. 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 GRANT the motion to appeal in forma pauperis **; we DENY the motion for a certificate of appealability. The petition is DISMISSED.

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

•

We note that Mr. Nash has been making partial payments on his filing fee. Since we have granted his motion to proceed in forma pauperis, he is not required to make any more payments.