* This order and judgment is not binding precedent, e xcept under the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

### MAY 11 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MERRILL BURROUS CHAMBERLAIN, Petitioner - Appellant, No. 00-2465

v. (D.C. No. CIV-95-167-LH) JOHN SHANKS, Warden; and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, (D. New Mexico)

Respondents - Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR , McKAY, and BRORBY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. Petitioner fatally shot a police officer and was su bsequently tried for murder, among other things, in New Mexico state cou rt. The first trial resulted in-2-

a hung jury. The second trial, which involved new defense counsel and a different defense strategy, resulted in a convictio n. That conviction was affirmed on appeal by the New Mexico Supreme Court. See State v. Chamberlain , 819 P.2d 673 (N.M. 1991). Petitioner subsequently soug ht federal court review of his state court conviction pursuant to 28 U.S.C. § 2254 . In the habeas petition, he alleged that numerous constitutional violations occ urred during his second trial, including improper jury instructions, ineffective a ssistance of counsel, and various denials of due process. The matter was ref erred to a magistrate judge who recommended rejecting all of Petitioner’s claim s on the merits. After de novo review, the district court adopted the magistr ate judge’s recommendation. Petitioner then requested a certificate of appealab ility, as he must under 28 U.S.C. § 2253, for leave to appeal the district court’s de cision. That request was denied. Petitioner, now proceeding pro se, has renewed his pursuit of a certificate of appealability with this court. A court should grant a certificate of appealability“only if the applicant has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). Petitioner could do so by demonstrat ing that his claims warrant further proceedings, “subject to a different resolution on appeal,” or are debatable among reasonable jurists. See Montez v. McKinna , 208 F.3d 862, 869 (10th Cir. 2000). After carefully reviewing Petitioner’s “App lication for Certificate of1 We note that while the magistrate judge and the dis trict court did not apply

the Antiterrorism and Effective Death Penalty Act o f 1996 to Petitioner’s habeas proceeding, that act applies to this appeal. See Slack v. McDaniel , __ U.S. __, 120 S. Ct. 1595, 1602-03 (2000).

2 We also DENY Petitioner’s recently filed “Motion for Productionof Transcript of the 5/12/97 Hearing Held Without Appe llant’s Presence and Knowledge.” The 5/12/97 transcript referred to is from an unrelated case and was erroneously included in the instant case’s record o n appeal. -3- Appealability” in conjunction with the magistrate j udge’s thorough, considered opinion and State v. Chamberlain , 819 P.2d 673 (rejecting some of the same arguments currently asserted in Petitioner’s habeas petition), we conclude that Petitioner has failed to make the necessary showing . We can do no better than the Magistrate Judge’s Proposed Findings and Recommende d Disposition filed on August 1, 2000, in explaining why. 1 The request for a certificate of appealability is DENIED and this appeal is DISMISSED

. 2
Entered for the Court

Monroe G. McKay Circuit Judge