*This order and judgment is not binding precedent, except under the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

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 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.

Petitioner fatally shot a police officer and was subsequently tried for

murder, among other things, in New Mexico state court. 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 conviction. 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 sought 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 occurred during his second trial,

including improper jury instructions, ineffective assistance of counsel, and

various denials of due process. The matter was referred to a magistrate judge

who recommended rejecting all of Petitioner’s claims on the merits. After de

novo review, the district court adopted the magistrate judge’s recommendation. 

Petitioner then requested a certificate of appealability, as he must under 28 U.S.C.

§ 2253, for leave to appeal the district court’s decision. 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 constitutional right.” 28 U.S.C.

§ 2253(c)(2). Petitioner could do so by demonstrating 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 “Application for Certificate of
1We note that while the magistrate judge and the district court did not apply

the Antiterrorism and Effective Death Penalty Act of 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).

2We also DENY Petitioner’s recently filed “Motion for Production of

Transcript of the 5/12/97 Hearing Held Without Appellant’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 on appeal.

-3-

Appealability” in conjunction with the magistrate judge’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 Recommended 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