* This order and judgment is not binding precedent, e xcept under the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

### APR 30 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PHILLIP LUCERO,

Petitioner-Appellant,

v. JOHN SHANKS, Warden, and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 98-2044 (D.C. No. CIV-96-160-MV) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 The district court denied Lucero a certificate of appealability, and Lucero

has renewed his request to this court. Because Luc ero filed his habeas petition prior to the effective date of the Antiterrorism an d Effective Death Penalty Act (AEDPA), the certificate of appealability provision s of AEDPA do not apply. Petitioner remains subject, however, to the pre-AED PA requirement that he obtain a certificate of probable cause before bringing his appeal. In order to be granted a certificate of probable cause, Lucero must make asubstantial showing of the denial of a federal right, see Barefoot v. Estelle , 463 U.S. 880, 893 (1983), the same showing required to receive a certificate of appealability, see Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), overruled on other grounds by United States v. Kunzman , 125 F.3d 1363, 1364 n.1 (10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998). Therefore, we construe his reques t as an application for a certificate of probable cause. -2- Petitioner Phillip Lucero seeks a certificate of pr obable cause to appeal the district court’s dismissal of his petition for writof habeas corpus filed pursuant to 28 U.S.C. § 2254. 1 “[W]e may grant habeas relief to a state prisoneronly if state court error ‘deprived him of fundamental rights gua ranteed by the Constitution of the United States.’” Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.), cert. denied , 119 S. Ct. 378 (1998) (quoting Brinlee v. Crisp , 608 F.2d 839, 843 (10th Cir. 1979)). Because Lucero filed his habeas petit ion prior to the enactment of AEDPA, “we apply pre-amendment standards of review.” Id . We review the dismissal of a § 2254 petition de novo, giving defe rence to the state court’s construction of state law. See id . We review the district court’s factual findings for clear error, presuming the factual findings of the state court to be correct. See id

.-3-

We have reviewed the record on appeal, the report a nd recommendation of the magistrate judge, the district court’s orders, Lucero’s brief and supporting documents, and his application for a certificate of probable cause. We grant Lucero’s motion to withdraw from appellate review i ssues numbered one through thirteen in his § 2254 habeas petition. We conclud e that Lucero has failed to make a “substantial showing of the denial of [a] fe deral right” by demonstrating the issues raised are “debatable among jurists of r eason,” or that another court could resolve the issues differently, or that the q uestions deserve further proceedings. Barefoot , 463 U.S. at 893 n.4 (quotations omitted). Therefore, for substantially the reasons stated in the magistrate judges’s findings and recommendation dated December 22, 1997 , and the district court’s July 24, 1998 order, we DENY Lucero’s application f or a certificate of probable cause and DISMISS his appeal. The mandate shall issue forthwith.

Entered for the Court

Deanell Reece Tacha Circuit Judge