*

 This order and judgment is not binding precedent, except under the doctrines of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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUN 19 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALFONSO DURAN,

Petitioner-Appellant,

 v.

EDWARD L. EVANS,

Respondent-Appellee.

No. 97-6094

(D.C. No. 96-CV-898)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is

ordered submitted without oral argument.
1

 Although Duran's notice of appeal was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996, he filed an outdated application

for a certificate of probable cause which we construe as a request for a certificate of

appealability under 28 U.S.C. § 2253(c). See Hogan v. Zavaras, 93 F.3d 711 (10th Cir.

1996).

-2-

Petitioner Alphonso Duran, appearing pro se, requests a certificate of

appealability to appeal the district court's denial of his petition for writ of habeas

corpus under 28 U.S.C. § 2254.1 We conclude Duran is not entitled to a

certificate of appealability and dismiss his appeal.

Duran was convicted by a jury of possession of a controlled dangerous

substance with intent to distribute, trafficking in illegal drugs, and maintaining a

vehicle where a controlled dangerous substance was kept, and was sentenced to a

total of fifty-five years' imprisonment. He filed a direct appeal, which was

rejected by the Oklahoma Court of Criminal Appeals. He then filed an

application for post-conviction relief. The trial court denied relief and the

Oklahoma Court of Criminal Appeals affirmed the denial. His state remedies

exhausted, Duran filed a petition for writ of habeas corpus in federal district

court, which was denied. He is now seeking permission to appeal the district

court's denial of his habeas petition.

In his petition for writ of habeas corpus, Duran raised six grounds for

relief. Three related grounds alleged Duran's convictions were unconstitutional

because they were based on evidence obtained (1) from a pretextual traffic stop,
-3-

(2) through detention and investigation which exceeded the proper scope of a

traffic stop, and (3) without his voluntary consent to search. The remaining three

grounds alleged (4) his convictions violated the constitutional prohibition against

double jeopardy and the Oklahoma statutory prohibition against multiple

punishment, (5) because of his lack of knowledge of the English language, his

consent to search was not knowing or voluntary, and (6) his appellate counsel was

ineffective in failing to raise the issues in grounds (4) and (5) on direct appeal. 

After receiving the state's response to Duran's petition, the magistrate judge filed

an extensive report and recommendation. In particular, the magistrate noted

grounds (1) through (3) were raised in Duran's direct appeal and he was precluded

from relitigating them in federal court via his habeas action. The magistrate also

noted grounds (4) through (6) were raised in Duran's application for postconviction relief and were procedurally barred because they could have been

raised on direct appeal, because Duran failed to satisfy the cause and prejudice

test with respect to those claims, and because Duran failed to make a colorable

showing of actual innocence. The magistrate also concluded there was no merit

to Duran's claim of ineffective assistance of appellate counsel, concluding even if

grounds (4) and (5) had been raised on direct appeal, he would not have been

entitled to relief. The district court fully adopted the magistrate's report and

recommendation. The district court also found Duran had failed to make a
-4-

substantial showing of the denial of a constitutional right and denied a certificate

of appealability.

We have held that the standard for granting a certificate of appealability

under the Antiterrorism and Effective Death Penalty Act is the same as the

standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880

(1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied 117

S. Ct. 746 (1997). Under the Barefoot standard, a certificate will issue only

where the petitioner has demonstrated the issues raised are debatable among

jurists of reason, a court could resolve the issues differently, or the questions

presented are deserving of further proceedings. See Barefoot, 463 U.S. at 893

n.4. We conclude Duran has failed to satisfy this burden for substantially the

same reasons set forth in the magistrate's report and recommendation dated

October 16, 1996.

Duran's application for a certificate of appealability is DENIED and this

appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge