* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID S. PETERSON,

Petitioner-Appellant,

v. JOHN SHANKS, Warden; ATTORNEY GENERAL OF THESTATE OF NEW MEXICO,

Respondents-Appellees. No. 95-2248 (Dist. of New Mexico) (D.C. No. CIV-92-481-MV)

ORDER AND JUDGMENT *

Before LUCERO , LOGAN, and MURPHY , Circuit Judges.
Petitioner David S. Peterson, a state prisoner, fil ed in the United States District Court for the District of New Mexico a pet ition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Peterson asse rted that he was entitled to habeas relief on the following three grounds: (1) h e was denied his Sixth-2-

Amendment right to effective assistance of counsel and, as a result of that denial, his guilty plea was uncounseled and involuntary; (2 ) he was denied due process when he was convicted of a crime over which the state district court did not have jurisdiction; and (3) he was denied due process in that the state district court imposed a consecutive sentence which was not author ized by state law. The district court dismissed the petition and denied Pe terson a certificate of probable cause for leave to proceed on appeal. The matter i s now before the court on Peterson’s application for a certificate of probabl e cause. On April 24, 1996, the President signed into law th e Antiterrorism and Effective Death Penalty Act of 1996 (the “Act”), Pu b. L. 104-132, 110 Stat. 1214. Prior to the Act, state prisoners were allowed to appeal the denial of their § 2254 petitions only after they had obtained a certificat e of probable cause from “the justice or judge who rendered the order or a circui t justice or judge.” 28 U.S.C. § 2253 (1994). Under the provisions of the Act, howe ver, an appeal from the denial of a § 2254 petition is not available “[u]nless a c ircuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c) (Supp. July 1996). In Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 65 U.S.L.W. 3488 (U.S. Jan 13, 1997) (No. 96-6621), this court held that the certificate-of-appealability requirement set out in the Act applies to all pendi ng appeals, including those where the notice of appeal was filed prior to the d ate the President signed the Act-3-

into law. The Lennoxcourt reasoned that “the standard governing the is suance of a certificate of appealability requires the same sh owing as that for obtaining a certificate of probable cause.” Id. Accordingly, the application of the Act’s certificate-of-appealability requirement to pending appeals does not have an impermissible retroactive effect. Id. We therefore treat Peterson’s application for a certificate of probable cause as a request fo r a certificate of appealability and proceed to determine whether Peterson is entit led to such a certificate. Id. A habeas petitioner is entitled to a certificate of appealability only upon a “substantial showing of the denial of a constitutio nal right.” 28 U.S.C. § 2253(c). The standard for granting a certificate of appealab ility under the Act is the same standard set out by the Supreme Court in Barefoot v. Estelle , 463 U.S. 880 (1993).
Lennox , 87 F.3d at 434. Under the Barefootstandard, a certificate of appealability will issue only where the petitioner has demonstrated the issues raised are (1) debatable among jurists of reason, ( 2) a court could resolve the issues differently, or (3) the questions presented are deserving of further proceedings. Barefoot, 463 U.S. at 893 n.4. We conclude that Peterson has failed to make the re quisite showing for a certificate of appealability as to his claims regar ding the state court’s jurisdiction over his crime and the state court’s power to sente nce him to consecutive terms of incarceration. These claims lack merit and the dis trict court’s resolution of the-4-

issues is not subject to debate. Peterson’s ineffe ctive assistance of counsel claims are, however, deserving of further proceedings. Id. Accordingly, this court grants Peterson a certificate of appealability as t o that issue. “A claim of ineffective assistance of counsel prese nts a mixed question of law and fact which we review de novo.” Brewer v. Reynolds , 51 F.3d 1519, 1523 (10th Cir. 1995), cert. denied, 116 S. Ct. 936 (1996). This court has reviewed de

novo the magistrate’s Report and Recommendation, the di strict court’s Order, and the entire record before us on appeal. We have als o given due consideration to the parties’ briefs and contentions. In light of that review, this court finds that it can add little to the well reasoned Report and Reco mmendation of the magistrate judge. Accordingly, we affirm the dismissal of Pet erson’s ineffective assistance of counsel claim for substantially the reasons set out in the magistrate judge’s Report and Recommendation dated September 6, 1995. This court DECLINES to grant Peterson a certificate of appealability a s to his jurisdictional and sentencing claims and DISMISSES the appeal as to those issues. 28 U.S.C. § 2253(c)(2)-(3). We GRANT Peterson a certificate of appealability as to his claim of ineffective assist ance of counsel and AFFIRM

. ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge