* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.-2-

Petitioner Christopher Dichard, appearing pro se , petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dichar d asserted that he was entitled to a writ of habeas corpus on the followin g three grounds: (1) he was denied his Sixth Amendment right to effective assis tance 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 certifi cate of probable cause for leave to proceed on appeal. This matter is before the co urt on Dichard’s application for a certificate of probable cause. On April 24, 1996, the President signed into law th e Antiterrorism and Effective Death Penalty Act of 1996 (the “Act”), Pu b. 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 certificat e of probable cause from “the justice or judge who rendered the order or a circui t justice or judge.” 28 U.S.C. § 2253 (1994). Under the provisions of the Act, howe ver, an appeal from the denial of a § 2254 petition is not available “[u]nless a c ircuit 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 t he certificate-of-appealability requirement set out in the Act applies to all pendi ng appeals. The Lennoxcourt reasoned that “the standard governing the issuance of a certificate of appealability requires the same showing as that for obtaining a c ertificate of probable cause.” Id. Accordingly, the application of the Act’s certifi cate-of-appealability requirement to pending appeals does not have an imp ermissible retroactive effect. Id. We therefore treat Dichard’s application for a ce rtificate of probable cause as a request for a certificate of appealability and p roceed 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 constitutio nal right.” 28 U.S.C. § 2253(c)(2). The standard for granting a certificat e of appealability under the Act is the same standard set out by the Supreme Court i n Barefoot v. Estelle , 463 U.S. 880 (1993). Lennox , 87 F.3d at 434. Under the Barefootstandard, 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, Dichar d’s brief and application for a certificate of probable cause, appellee’s ans wer brief, and the entire record-4-

before us on appeal. We conclude that Dichard has failed to make a “substantial showing of the denial of a constitutional right” fo r 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