## F I L E D United States Court of Appeals Tenth Circuit 

### September 20, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN JOSE VALLADARESSANDOVAL,

Petitioner-Appellant, No. 05-6032

v. (D.C. No. 04-CV-1227-F) STEVEN BECK, Warden, (W.D. Okla.)

Respondent-Appellee.

ORDER

Before EBEL , McKAY , and HENRY, Circuit Judges.

After examining Petitioner’s brief and the appellat e record, this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. This is a pro se 28 U.S.C. § 2254 prisoner appeal. Petitioner pled guilty in state court to one charge of trafficking in illegal drugs and was sentenced to twenty-five years’ imprisonment. He did not appeal the propriety of his plea agreement or the legality of his sentence in state court. However, Petitioner did apply for post-conviction relief in the state syste m, which was denied on jurisdictional grounds. He then petitioned the fed eral district court for habeas1 Although Petitioner previously filed a § 2254 petit ion, the instant matter is

not successive for purposes of the AEDPA’s gatekeep ing provisions because the prior petition was dismissed without prejudice for failure to exhaust his state remedies. See Slack v. McDaniel , 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the district court after an initi al habeas petition was unadjudicated on its merits and dismissed for failu re to exhaust state remedies is not a second or successive petition.”). -2- corpus relief, which was denied as being procedural ly barred. Petitioner appealed the district court’s decision, and we reversed and remanded with instructions to dismiss the petition without prejudice for failure to exhaust state court remedies. 1
Sandoval v. Beck, 99 Fed. Appx. 835, 836, 2004 WL 1098933, at *2 (1 0th Cir. May 18, 2004). Petitioner thereafter attempted to exhaust his stat e remedies. He then filed the underlying § 2254 petition and asserted three c laims allegedly entitling him to habeas relief: (1) the interpreter in his state co urt proceedings provided inadequate interpretation services during the plea agreement proceeding; (2) the prosecutor withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (3) the Mexican consulate was not conta cted. Embedded within these claims Defendant asserts that he was denied effecti ve assistance of counsel. In a thirteen-page Report and Recommendation (“R&R” ), the magistrate judge recommended that the petition be denied. Pet itioner objected to the R&R claiming that the district court erred because it f ailed to consider Petitioner’s “rebuttal” (i.e., that certain relevant pleadings w ere not addressed) and failed to-3-

properly evaluate Petitioner’s justification for de faulting several of his claims. Rec., Tab 16, at 1-2. After conducting a de novo r eview of the petition, the district court overruled Petitioner’s objections to the R&R, adopted the magistrate judge’s R&R in its entirety, and denied the habeas petition. Petitioner now appeals to this court. On appeal, Petitioner raise s the same issues that he raised in objection to the magistrate judge’s R&R. The district court also denied Petitioner’s requestfor a certificate of appealability. He has renewed that request with th is court. In order for us to grant a certificate of appealability, Petitioner mu st make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2003). To do so, Petitioner must demonstrate “that reasonable jurist s could debate whether (or, for that matter, agree that) the petition should have b een resolved in a different manner or that the issues presented were adequate t o deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotations and citation omitted). We have carefully reviewed the briefs, the districtcourt’s disposition, and the record on appeal. Nothing in the facts, the re cord on appeal, or Petitioner’s brief raises an issue which meets our standard for the grant of a certificate of appealability. We conclude that for substantially the same reasons as set forth by the magistrate judge in its December 30, 2004 R&R, which was adopted in its-4-

entirety by the district court, we cannot say “that reasonable jurists could debate whether (or, for that matter, agree that) the petit ion should have been resolved in a different manner.” Slack, 529 U.S. at 484.
We DENY Petitioner’s request for a certificate of appealab ility and
DISMISS the appeal. Entered for the Court

Monroe G. McKay Circuit Judge