* This order and judgment is not binding precedent, e xcept under the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

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

### MAR 18 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD LYNN WRIGHT, Petitioner-Appellant, No. 98-4067

v. (D.C. No. 96-CV-274-J) O. LANE McCOTTER, (D. Utah) Respondent-Appellee.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate 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. Petitioner Richard Lynn Wright is currently serving a sentence for aggravated robbery in the Central Utah Correctional Facility in Gunnison, Utah. He appeals the district court’s dismissal of his se cond petition for a writ of habeas1 The complex procedure and history of this case is c learly set forth by the

district court in its Opinion and Order issued Octo ber 31, 1991, which was adopted and incorporated by this court in its decis ion affirming the district court’s dismissal of Petitioner’s first federal habeas corp us petition. See Wright v. Deland , 986 F.2d 1432, 1993 WL 18625 (10th Cir.) (Table), cert. denied , 510 U.S. 834 (1993). Since Wrightwas issued on January 27, 1993, Petitioner filed a second petition for relief in state trial court whi ch was dismissed as frivolous on November 1, 1993. The Utah Supreme Court affirmed that dismissal. See Wright v. Carver , 886 P.2d 58 (Utah 1994).

2 Petitioner’s appointed counsel was permitted to withdraw after perfecting the appeal but prior to briefing. Petitioner is pr oceeding pro se on appeal.

3 Because Petitioner filed his petition for habeas co rpus before April 19, 1996, the provisions of the Antiterrorism and Effec tive Death Penalty Act of 1996 do not apply to this appeal. -2- corpus filed pursuant to 28 U.S.C. § 2254. 1 Petitioner filed his second federal habeas corpus p etition on April 12, 1996, alleging two grounds for relief: (1) he was denied his Sixth Amendment right to a speedy trial; and (2) his due process rights were d enied because the Ogden City magistrate judge had no authority to dismiss his cr iminal proceeding in 1976. The matter was referred to a magistrate judge who recom mended that the petition be dismissed as successive and without merit. After r eviewing objections from both Petitioner and his counsel, 2 the district court adopted the magistrate judge’s recommendation and, with some additional clarificat ion, denied and dismissed the section 2254 petition. On appeal, Petitioner seeks a certificate of probab le cause 3 from this court and essentially claims that (1) the district court incorrectly determined that there4 This is precisely the same substantive showing thata petitioner must make

under AEDPA to obtain a certificate of appealability. See Lennox v. Evans , 87 F.3d 431, 434 (10th Cir. 1996), cert. denied , U.S. , 117 S. Ct. 746 (1997) (standard for granting either certificate requires petitioner to make a substantial showing of the denial of a federal constitutional r ight), overruled on other grounds byUnited States v. Kunzman , 125 F.3d 1363, 1365 n.2 (10th Cir. 1997), cert. denied , U.S. , 118 S. Ct. 1375 (1998). -3- are no new or intervening facts or law that warrantreview of the Sixth Amendment speedy trial claim, and (2) the court inc orrectly dismissed Petitioner’s due process claim because it “based it s decision on an erroneous interpretation of the prior habeas decision in 1991 .” Appellant’s Application for Certificate of Probable Cause at 2. To obtain a certificate of probable cause, Petition er must make a substantial showing that the district court’s ruling resulted i n the “denial of an important federal right by demonstrating that the issues rais ed are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings.” Gallagher v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994) (citing Barefoot v. Estelle , 463 U.S. 880 (1983)). 4
This court has conducted a de novo review of the br iefs, Petitioner’s application for a certificate of probable cause, th e magistrate judge’s report and recommendation, the district court’s order, and the entire record on appeal. Based on that review, we conclude that the district courtcorrectly determined that there are no new or intervening facts or law that warrantreview of the Sixth-4-

Amendment speedy trial claim and that it properly d ismissed Petitioner’s due process claim. When Petitioner was discharged from the indictment in 1976, no criminal charges were pending against him; the crim inal charges remaining were pending against Mr. Leonard Eugene Wright. In its 1991 Order, the district court stated: “Once the complaint was amended to reflectthe name of Leonard Eugene Wright, the prosecution of Richard Lynn Wright effe ctively terminated and Richard Lynn Wright no longer stood accused.” Wrig ht , 1993 WL 18625, at **6. This statement, and the analysis underlying it, rem ain true today. Further, the district court did not sanction the magistrate judg e’s “dismissal” of the complaint against Petitioner in the 1991 Order. Instead, the court concluded that the practical result of the discharge of Petitioner fro m the indictment was to terminate the prosecution against him in 1976; the court only sanctioned the actual dismissal of the complaint against Leonard Eugene W right. See id. Also of particular significance is the district court’s con clusion that Petitioner’s “interest in [the protections of] the right to a speedy trial was not implicated” until he learned of the charges in 1985 because he did not k now that charges had been brought against him in 1976. Id. at **7. Like the panel of this court which affirmed the district court’s 1991 Order, we can di scern no error in any of this analysis and have found no new or intervening law o r facts that change our determination.-5-

For these reasons and for substantially the same re asons set forth in the magistrate judge’s report and recommendation and th e district court’s order–both of which clearly and thoroughly address Petitioner’ s claims–we conclude that Petitioner has failed to make the required substant ial showing of the denial of an important federal right. Accordingly, we DENY Petitioner a certificate of probable cause andDISMISS the appeal. Entered for the Court

Monroe G. McKay Circuit Judge