*This order and judgment is not binding precedent, except under the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 21 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHRISTOPHER DICHARD,

Petitioner-Appellant,

v.

WYOMING DEPARTMENT OF

CORRECTIONS STATE

PENITENTIARY WARDEN;

WYOMING ATTORNEY GENERAL,

Respondent-Appellee.

No. 96-8045

(Dist. of Wyoming)

(D.C. No. 94-CV-281)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges. 

After examining the briefs and 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); 10th Cir. R. 34.1.9. The cause is

therefore ordered submitted without oral argument.
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Petitioner Christopher Dichard, appearing pro se, petitioned for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Dichard asserted that he was

entitled to a writ of habeas corpus on the following three grounds: (1) he was

denied his Sixth Amendment right to effective assistance of counsel prior to and

during his plea negotiations; (2) the district court failed to establish a proper

factual basis for the entry of his guilty plea and erred in refusing to allow him to

withdraw his guilty plea prior; and (3) he did not enter his guilty plea knowingly

or intelligently but was, instead, coerced by his attorneys. The district court

dismissed the petition and denied Dichard a certificate of probable cause for leave

to proceed on appeal. This matter is before the court on Dichard’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.
-3-

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. 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 Dichard’s application for a certificate of probable cause as

a request for a certificate of appealability and proceed to determine whether he is

entitled to such a certificate.

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)(2). 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 have reviewed the district court’s order, Dichard’s brief and application

for a certificate of probable cause, appellee’s answer brief, and the entire record
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before us on appeal. We conclude that Dichard has failed to make a “substantial

showing of the denial of a constitutional right” for substantially the reasons set

forth in the district court’s order dated April 11, 1996. Accordingly, we DENY

Dichard a certificate of appealability and DISMISS the appeal.

ENTERED FOR THE COURT,

Michael R. Murphy

Circuit Judge