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 appellate record, this panel has

determined unanimously that oral argument would not materially 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 oral 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 system, which was denied on

jurisdictional grounds. He then petitioned the federal district court for habeas
1Although Petitioner previously filed a § 2254 petition, the instant matter is

not successive for purposes of the AEDPA’s gatekeeping 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 initial habeas petition was

unadjudicated on its merits and dismissed for failure to exhaust state remedies is

not a second or successive petition.”). 

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corpus relief, which was denied as being procedurally 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 (10th Cir.

May 18, 2004).

Petitioner thereafter attempted to exhaust his state remedies. He then filed

the underlying § 2254 petition and asserted three claims allegedly entitling him to

habeas relief: (1) the interpreter in his state court 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 contacted. Embedded within these

claims Defendant asserts that he was denied effective assistance of counsel. 

In a thirteen-page Report and Recommendation (“R&R”), the magistrate

judge recommended that the petition be denied. Petitioner objected to the R&R

claiming that the district court erred because it failed to consider Petitioner’s

“rebuttal” (i.e., that certain relevant pleadings were not addressed) and failed to
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properly evaluate Petitioner’s justification for defaulting several of his claims. 

Rec., Tab 16, at 1-2. After conducting a de novo review 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 raises the same issues that he raised

in objection to the magistrate judge’s R&R. 

The district court also denied Petitioner’s request for a certificate of

appealability. He has renewed that request with this court. In order for us to

grant a certificate of appealability, Petitioner must 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 jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to 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 district court’s disposition, and

the record on appeal. Nothing in the facts, the record 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
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entirety by the district court, we cannot say “that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner.” Slack, 529 U.S. at 484.

We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge