* This order and judgment is not binding precedent, e xcept under the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

### SEP 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

AUDREY SPLAIN,

Petitioner-Appellant,

v. TOM NEWTON, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 98-2128 (Dist. of New Mexico) (D.C. No. CIV-95-808-JP)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered subm itted without oral argument.1 Because Splain filed her § 2254 petition in July of 1995, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply. See Lindh v. Murphy , 117 S. Ct. 2059, 2063 (1997); United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). This court, therefore, construes Spl ain’s appeal as a request for a certificate of probable cause un der the pre-AEDPA version of 28 U.S.C. § 2253. See Hernandez v. Starbuck , 69 F.3d 1089, 1090 n.1 (10th Cir. 1995). -2- Audrey Splain seeks to appeal the district court’s order dismissing her 28 U.S.C. § 2254 habeas corpus petition with prejudice . Because this court concludes that Splain has not made a substantial sh owing of the denial of her constitutional rights, we deny her a certificate of probable cause and dismiss the appeal. 1 Splain was convicted of trafficking in cocaine in N ew Mexico state court in 1994. Splain exhausted her claims on direct app eal to the New Mexico Court of Appeals and filed this § 2254 petition in 1995. Splain raises the following three claims in support of her petition: (1) her Si xth Amendment rights were violated by the exclusion of African-Americans fromthe venire panel; (2) her due process rights were violated by the admission o f a mass spectrometer analysis to prove the illegal material was cocaine; and (3) she was convicted on the basis of insufficient evidence in violation of the Due Pr ocess Clause. In resolving Splain’s claim regarding the venire panel, the district court noted that the African-American population within the relevant New Mexico district was between two and five percent and that the total size of the venire was-3-

forty-eight people. In light of the size of the ve nire and the African-American population, one or two African-Americans would have represented a fair crosssection of the community. With this background in mind, the district court concluded that Splain’s claim failed because she co uld not show a systematic and deliberate exclusion of African-Americans from the venire. See United States v.
Ruiz-Castro , 92 F.3d 1519, 1527 (10th Cir. 1996) (holding that to establish a prima facie case under the Sixth Amendment, a movant must showthat the underrepresentation of a minority group is due to “ systematic exclusion of the group in the jury-selection process”). Splain’s cl aim was based solely on the absence of African-American’s from her particular v enire without reference to whether such a result was a statistical anomaly or a systematic practice. See
Duran v. Missouri , 439 U.S. 357, 362 (1979) (movant stated prima facie case by demonstrating systematic exclusion of minority group over six month period); Taylor v. Missouri , 419 U.S. 522, 524 (1975) (same over one year peri od). Furthermore, the African-American population in the relevant area was small enough that the absence of any African-Americans fr om the venire was not statistically unlikely. Cf. Castaneda v. Partida , 430 U.S. 482, 486-87 (1977) (movant made prima facie case where Mexican-American population in county was approximately eighty percent while percentage o f Mexican-Americans on grand jury panels was approximately thirty-nine per cent over ten year period).-4-

As to Splain’s claims concerning the admission of the mass spectrometer tests, the district court noted that Splain’s argum ents related to the weight of the evidence rather than its admission and that the adm ission of the tests did not render her trial fundamentally unfair. See Maes v. Thomas , 46 F.3d 979, 987 (10th Cir. 1995) (holding that a federal court cannot g rant habeas relief for state evidentiary rulings unless those rulings rendered the trial as a whole fundamentally unfair). Finally, the district courtnoted that Splain’s claims regarding the sufficiency of the evidence boiled do wn to the claim that the sole witness against her at trial was not worthy of beli ef. As properly noted by the district court, in concluding whether evidence is c onstitutionally sufficient, a federal court “may neither weigh conflicting eviden ce nor consider the credibility of witnesses.” United States v. Harrod , 981 F.2d 1171, 1174 (10th Cir. 1992). This court has considered de novo Splain’s appellate brief, the magistrate’s report and recommendation, and the entire record on appeal. In light of that review, there can be no question that the district court’s resolution of Splain’s claims is not debatable among jurists, deserving of further proceedings, or subject to an alternate resolution. See Gallagher v. Hannigan , 24 F.3d 68, 68 (10th Cir.1994). Accordingly, Splain has not made a su bstantial showing of the denial of an important federal right and is not, th erefore, entitled to a certificate-5-

of probable cause. The request for a certificate of probable cause is DENIED and this matter is DISMISSED

. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge