* This order and judgment is not binding precedent, except under the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

** The Honorable J. Thomas Marten, District Judge, United States District

Court for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 2 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GLORIA BUSTOS,

Petitioner-Appellant,

v.

TOM NEWTON, Warden;

ATTORNEY GENERAL OF THE

STATE OF NEW MEXICO,

Respondents-Appellees.

No. 96-2188

(D.C. No. CIV-95-1338-JP)

(D. N.M.)

ORDER AND JUDGMENT*

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN,** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of
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this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Ms. Gloria Bustos appeals the district court’s denial of her petition filed

pursuant to 28 U.S.C. § 2254. For substantially the reasons stated by the district

court, we affirm.

In May of 1987, Ms. Bustos pled guilty to first degree murder in connection

with a slaying at a Santa Fe, New Mexico, laundromat. She was sentenced to life

imprisonment, which under New Mexico law requires the service of thirty years

of the sentence before parole will be considered. The New Mexico Supreme

Court rejected a challenge to the life sentence.

In 1991, Ms. Bustos filed a motion to withdraw her guilty plea, which

apparently has yet to be ruled on. She then filed a state habeas action arguing that

(1) she was innocent of first degree murder; (2) she was coerced into pleading

guilty; (3) she did not understand the charges against her and the consequences of

her plea due to overmedication; (4) the “State of NM did not have the capacity to

form specific intent;” and (5) her crime was “no longer a crime as defined by

law.” See R. tab 11, Ex. O at 2. The New Mexico district court denied the

petition, but Ms. Bustos failed to appeal the denial to the New Mexico Supreme

Court within the time specified by law.
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Ms. Bustos then filed a petition in the federal district court raising the

following grounds for review: (1) the harshness and length of sentence;

(2) the New Mexico district court’s failure to hold a hearing on her motion to

withdraw her guilty plea; (3) whether she was coerced into pleading guilty;

(4) whether she understood the terms of her plea and its consequences due to

overmedication; (5) whether she had the capacity to form specific intent; and

(6) whether State v. Ortega , 817 P.2d 1196 (N.M. 1991), should be applied

retroactively.

The district court correctly held that grounds two through six of

Ms. Bustos’ federal habeas petition were barred from consideration because of

procedural default and because Ms. Bustos had failed to show cause and prejudice

for the default or that failure to accord federal habeas review would result in a

fundamental miscarriage of justice. Ms. Bustos’ claim for federal habeas relief

based on the length and harshness of her sentence was denied because the

sentence imposed was within the state statutory sentencing guidelines, thus

precluding federal habeas review. See Dorszynski v. United States , 418 U.S. 424,

431-32 (1974); Meachem v. Keane , 899 F. Supp. 1130, 1139 n.5 (S.D.N.Y. 1995).
1 Ms. Bustos has moved this court for issuance of a certificate of

appealability to prosecute her appeal. Because she filed her habeas corpus

petition on November 8, 1995, prior to the April 24, 1996 effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), she does not

need a certificate of appealability to proceed. See United States v. Kunzman,

No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1, 1997). Therefore,

pursuant to the requirements of 28 U.S.C. § 2253 in effect at the time Ms. Bustos

filed in the district court, we grant a certificate of probable cause.

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Our review of the record in this case and the briefs of the parties reveal no

error by the district court. 1

The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

Entered for the Court

Carlos F. Lucero

Circuit Judge