* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 14 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

THOMAS CAMPBELL HEADLEY,

Petitioner-Appellant,

v. HANK GALETKA, Warden; STATE OF UTAH, Respondents-Appellees. No. 99-4061 (D.C. No. 96-CV-277) (D. Utah)

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Because petitioner filed his habeas petition on Apr il 15, 1996, before the

April 24, 1996 enactment of the Antiterrorism and E ffective Death Penalty Act of 1996, the certificate of appealability provisions of that act do not apply. See Lindh v. Murphy , 521 U.S. 320, 336 (1997). Instead, we construe p etitioner’s motion as an application for a certificate of probable cause. Cf. United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

2 A habeas corpus action under § 2254 is not a civil action as contemplated by the Prison Litigation Reform Act, and petitioneris not required to submit a certified statement of his trust account. See United States v. Simmonds , 111 F.3d 737, 741, 744 (10th Cir. 1997). -2- Petitioner Thomas C. Headley, a prisoner of the State of Utah appearing pro se, appeals from the dismissal of his petition for habeas relief filed under 28 U.S.C. § 2254. He has filed a motion for a cert ificate of appealability, which we construe as a motion for a certificate of probable cause, 1 and a motion for leave to proceed in forma pauperis on appeal. 2We have jurisdiction under 28 U.S.C. § 1291. Petitioner was charged in 1991 with several sex off enses against children. He pled guilty to one count of sexual abuse of a ch ild, a second degree felony, in exchange for the State’s agreement to drop other, m ore serious, charged offenses and not bring any further charges. After petitione r completed a ninety-day diagnostic evaluation, the trial court sentenced hi m to one to fifteen years’ imprisonment and ordered him to pay the costs of extradition and the victim’s therapy.-3-

After petitioner’s sentencing in 1992, petitioner’s appointed counsel sought and obtained permission to withdraw from representation on the basis that petitioner wished to assert a claim of ineffective assistance of counsel on appeal. Another attorney was appointed to represent petitio ner, who perfected petitioner’s direct appeal. Counsel identified two issues in th e amended docketing statement for petitioner’s direct appeal: (1) ineffective as sistance of trial counsel; and (2) under Anders v. California , 386 U.S. 738 (1967), no other meritorious issues could successfully be raised. See R. Doc. 9, Ex. 12, at 1 ¶ 5. On September 30, 1992, petitioner, through counsel, filed a motion t o dismiss his appeal so that he could file a motion in the trial court to withdraw his guilty plea. See id. Doc. 9, Ex. 13. Counsel also filed petitioner’s affidavit declaring his desire that his appeal be dismissed. See id. Doc. 9, Ex. 14. Petitioner’s motion to withdraw h is guilty plea was denied. Petitioner, at this point representing himself, proceeded to pursue state collateral relief, which was deniedon the ground of procedural bar. In this § 2254 petition, petitioner asserts twenty- two claims. The district court referred the case to a magistrate judge, who summarized and addressed petitioner’s claims. See id. Doc. 35. The magistrate judge recommended that most of petitioner’s claims be dismissed based on the state court’s procedural bar determination. See id. at 6-8. The magistrate judge found that petitione r failed to-4-

show either cause or prejudice to excuse the defaul t, or that a miscarriage of justice would result from the failure of the federa l court to review his petition. See id. The magistrate judge recommended that the rest of petitioner’s claims be dismissed because they challenged the conditions of his confinement and therefore should have been brought under 42 U.S.C. § 1983 instead of 28 U.S.C. § 2254. See id. at 8-9. After considering petitioner’s objections , but without holding a hearing, the district court adopted the m agistrate judge’s recommendation, and dismissed the petition. See id. Doc. 37. We review the district court’s denial of habeas relief de novo. See Sinclair
v. Henman , 986 F.2d 407, 408 (10th Cir. 1993). We also revi ew the denial of a hearing de novo. See Medina v. Barnes , 71 F.3d 363, 370 (10th Cir. 1995). We construe petitioner’s pro se pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). In order to obtai n a certificate of probable cause for appeal, petitioner must make a “substanti al showing of the denial of [a] federal right.” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (quotation omitted). On appeal, petitioner asserts in a conclusory fashi on that the district court ignored his arguments showing cause for his procedural default, and that he is actually innocent of the crime to which he pled gui lty. We have carefully reviewed the parties’ materials, the magistrate jud ge’s recommendation, and the district court’s order. We conclude that petitione r has failed to make a substantial-5-

showing of the denial of a federal right for substantially the same reasons as those set forth in the magistrate judge’s recommendation, adopted by the district court in its March 19, 1999 order. Accordingly, petitioner’s motion for leave to proce ed in forma pauperis on appeal is granted, his application for a certificat e of probable cause is denied, and the appeal is DISMISSED. The mandate shall issue f orthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge