*This order and judgment is not binding precedent, except under the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

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, filed in the United States

District Court for the District of New Mexico a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Peterson asserted that he was entitled to

habeas relief on the following three grounds: (1) he was denied his Sixth
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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 authorized by state law. The

district court dismissed the petition and denied Peterson a certificate of probable

cause for leave to proceed on appeal. The matter is now before the court on

Peterson’s application for a certificate of probable cause.

On April 24, 1996, the President signed into law the Antiterrorism and

Effective Death Penalty Act of 1996 (the “Act”), Pub. 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 certificate of probable cause from “the

justice or judge who rendered the order or a circuit justice or judge.” 28 U.S.C. §

2253 (1994). Under the provisions of the Act, however, an appeal from the denial

of a § 2254 petition is not available “[u]nless a circuit 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 pending appeals, including those

where the notice of appeal was filed prior to the date the President signed the Act
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into law. The Lennox court reasoned that “the standard governing the issuance of

a certificate of appealability requires the same showing 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 for a certificate of appealability

and proceed to determine whether Peterson is entitled 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 constitutional right.” 28 U.S.C. § 2253(c). 

The standard for granting a certificate of appealability 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 Barefoot standard, 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 requisite showing for a

certificate of appealability as to his claims regarding the state court’s jurisdiction

over his crime and the state court’s power to sentence him to consecutive terms of

incarceration. These claims lack merit and the district court’s resolution of the
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issues is not subject to debate. Peterson’s ineffective assistance of counsel claims

are, however, deserving of further proceedings. Id. Accordingly, this court

grants Peterson a certificate of appealability as to that issue. 

“A claim of ineffective assistance of counsel presents 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 district court’s Order, and

the entire record before us on appeal. We have also 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 Recommendation of the magistrate

judge. Accordingly, we affirm the dismissal of Peterson’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 as 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 assistance of counsel and AFFIRM.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge