* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or 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 

### DEC 21 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATHAN E. JONES, Petitioner-Appellant,

v. JIM FERGUSON, WARDEN, and the ATTORNEY GENERAL FOR THE STATE OF WYOMING, Respondents-Appellees. No. 98-8029 (D.C. No. 97-CV-76) (D. Wyo.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Nathan Jones was convicted in state court of first degree felony murder and sentenced to life in prison. He brought a pro se p etition for federal habeas corpus relief under 28 U.S.C. § 2254, alleging that the de struction of the transcript of his2

first preliminary hearing denied him due process, that he had ineffective assistance of counsel at trial and on appeal, and t hat the State had destroyed exculpatory evidence. The district court denied re lief, holding that Mr. Jones had failed to make a showing of need for the transcript , that he had failed to timely request the transcript, and that he had failed to r aise any issues with respect to the preliminary hearing in state court. The court also rejected Mr. Jones’ ineffective assistance claims, ruling that they were both concl usory and procedurally barred. Finally, the court held that the Wyoming Supreme Co urt’s resolution on direct appeal of his claim of destruction of evidence was not contrary to federal law or based on an unreasonable view of the facts. Mr. Jones appeals, asserting that the loss of the p reliminary hearing record denied him due process, that key witnesses changed their testimony between the first preliminary hearing and the trial, and that t he holding of a second preliminary hearing denied him due process. We aff irm. Mr. Jones had two preliminary hearings in connectio n with the murder charge against him. After the first hearing, whichlasted approximately seven hours, the Justice of the Peace ruled that the Stat e had failed to prove probable cause and discharged Mr. Jones and his two codefend ants. The three defendants were immediately rearrested, brought before anotherJustice of the Peace, and summarily bound over for trial. Mr. Jones was conv icted and sentenced to life in1 Mr. Jones appears to allege in his federal habeas petition that his appellate

counsel did move the appellate court for the transc ript. The decision denying his direct criminal appeal reveals that while counsel r aised the suppression of a tape of the pretrial statement of a State’s witness, thi s statement was not made at the preliminary hearing. Counsel did not raise any iss ue with respect to the preliminary hearing. See Jones v. State , 568 P.2d 837, 846-54 (Wyo. 1977).

2 Moreover, the record indicates that the destructio n of the tapes was due at least in part to the over fifteen-year interval between Mr. Jones’ trial and appeal and his request. 3 prison. He was paroled fifteen years later and app arently began efforts at that point to challenge his conviction. Upon discovering that the tapes of the first preliminary hearing had been destroyed and that no transcripts existed, he filed this action. Mr. Jones asserts that he has been denied due proce ss by the destruction of the record of the first preliminary hearing. We be gin our consideration of this claim by pointing out that although Mr. Jones appea led his conviction, see Jones v. State , 568 P.2d 837 (Wyo. 1977), the record contains no indication that Mr. Jones’ counsel requested the transcript either for use at trial or on appeal. 1 Thus, this case does not present the situation in which adefendant makes a contemporaneous claim that the denial of a transcri pt deprived him of the tools of an adequate defense or appeal. See Britt v. North Carolina , 404 U.S. 226, 226 (1971). 2 Here, Mr. Jones seeks the transcripts to prepare a collateral attack. Even if we were to assume that the same standards apply, we conclude that under the circumstances of this case Mr. Jones must make at l east a colorable showing of3 Mr. Jones alleges for the first time on appeal that he was denied a fair

trial because key witnesses changed their testimonybetween the first preliminary hearing and trial. He does not identify the witnes ses or describe the inconsistencies in their testimony. Even if we wer e to consider a claim raised for (continued...) 4 need for the transcript or of prejudice from the St ate’s inability to provide it. The Supreme Court has cautioned against requiring aparticularized showing from a defendant who has been denied a tran script of a prior mistrial. “[E]ven in the absence of specific allegations it c an ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for tria l, and as a tool at the trial itself for the impeachment of prosecution witnesses.” Id. at 228. We do not believe that assumption is appropriate here, however, in vi ew of the fact that Mr. Jones’ counsel did not seek the transcript in preparation for trial or appeal. Moreover, “[c]ircuit courts considering the issue have genera lly shown a greater inclination to examine the actual prejudice to the defendant re sulting from the denial of a transcript of a preliminary hearing than has been s hown in cases involving the denial of a trial transcript.” United States v. Rosales-Lopez , 617 F.2d 1349, 1356 (9th Cir. 1980), aff’d on other grounds , 451 U.S. 182 (1981); see also Phegley v.
Greer , 691 F.2d 306, 309 (7th Cir. 1982); United States ex rel. Moore v. Illinois , 577 F.2d 411, 417 (7th Cir. 1978). Accordingly, Mr . Jones’ failure to articulate any showing of need for the transcript defeats his alleged denial of due process. 33 (...continued)

the first time on appeal, such bare conclusory alle gations are insufficient to make the requisite showing.

4 We deny Mr. Jones’ request for appointment of couns el on appeal. 5 Mr. Jones argues that he was denied due process whe n the State subjected him to a second preliminary hearing after the firsthearing resulted in a finding of no probable cause. This argument is raised for the first time on appeal and we therefore decline to consider it. We observe in any event that Mr. Jones’ real complaint is that he won in the first proceeding an d lost in the second. Such a claim simply does not raise a constitutional issue. See Martinez v. Craven , 429 F.2d 18, 19-20 (9th Cir. 1970) (per curiam). Finally, Mr. Jones asserts that he received ineffec tive assistance of counsel. We agree with the district court that Mr. Jones’ al legations in this regard are wholly conclusory and completely lacking in any sup porting factual allegations. The court properly denied relief on this ground.
We GRANT Mr. Jones’ application for a Certificate of Appealability and his motion to proceed in forma pauperis, 4 and we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge