* This order and judgment is not binding precedent, e xcept under the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

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## 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 MAR TEN, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Ms. Gloria Bustos appeals the district court’s deni al of her petition filed pursuant to 28 U.S.C. § 2254. For substantially th e reasons stated by the district court, we affirm. In May of 1987, Ms. Bustos pled guilty to first deg ree 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) sh e was coerced into pleading guilty; (3) she did not understand the charges agai nst her and the consequences of her plea due to overmedication; (4) the “State of N M did not have the capacity to form specific intent;” and (5) her crime was “no lo nger a crime as defined by law.” See R. tab 11, Ex. O at 2. The New Mexico district co urt denied the petition, but Ms. Bustos failed to appeal the denia l to the New Mexico Supreme Court within the time specified by law.-3-

Ms. Bustos then filed a petition in the federal dis trict court raising the following grounds for review: (1) the harshness an d length of sentence; (2) the New Mexico district court’s failure to holda hearing on her motion to withdraw her guilty plea; (3) whether she was coerc ed into pleading guilty; (4) whether she understood the terms of her plea an d 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 fro m consideration because of procedural default and because Ms. Bustos had faile d to show cause and prejudice for the default or that failure to accord federal h abeas review would result in a fundamental miscarriage of justice. Ms. Bustos’ cl aim for federal habeas relief based on the length and harshness of her sentence w as 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 c ertificate 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 19 96 (AEDPA), she does not need a certificate of appealability to proceed. Se e United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *3 n.2 (10th Cir. O ct. 1, 1997). Therefore, pursuant to the requirements of 28 U.S.C. § 2253 ineffect at the time Ms. Bustos filed in the district court, we grant a certificate of probable cause. -4- Our review of the record in this case and the brief s of the parties reveal no error by the district court. 1 The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge