* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel.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. 

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

### JAN 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICHARD L. LARSON, Petitioner-Appellant, v. DONALD A. DORSEY, Warden, and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 98-2177 (D.C. No. CV 96-434 HB/LCS) (District of New Mexico)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.
Petitioner Richard L. Larson appeals the district c ourt’s dismissal of his petition for a writ of habeas corpus filed pursuantto 28 U.S.C. § 2254. We previously stated that “[a]lthough Larson’s petition is far from a model of clarity, it appears to assert the following as grounds for granting habeas relief:- 2 -

(1) he was denied his right to due process during t he process of reaching the letter agreement because the magistrat e did not follow state statutes; (2) the letter agreement constitute d punishment and the magistrate judge lacked subject matter jurisdiction to punish him; (3) his subsequent arrest for the same conduct that for med the basis of the letter agreement violated the letter agreement and was, therefore, illegal; (4) his subsequent punishment for the acts underlying the letter agreement constituted double jeopardy; and ( 5) his counsel was ineffective for failing to raise the issues set outabove.” Larson v. Dorsey , No. 97-2215, at 3-4 (10th Cir. Jan. 29, 1998) (sl ip op.). Although Larson admits that he filed two prior fede ral petitions seeking habeas corpus relief, he argues that this is his fi rst habeas petition directed to the judgment of the New Mexico state magistrate court which he claims played some part in the process leading to the letter agreement . He asserts that his first two federal habeas petitions sought relief from the jud gment of the New Mexico state districtcourt in which he was ultimately convicted and sen tenced. Accordingly, he claims that his present petition is effectively a first petition and is not subject to dismissal based on the doctrine of abuse of the writ. We reject this argument. While Larson challenges the activities of the state magistrate judge regarding proceedings prior to the district court p roceeding that led to his confinement, we have held previously that “[t]his c hallenge is clearly directed at a state court judgment pursuant to which Larson is in custody [the state district court judgment].” Larson , No. 97-2215, at 6. Larson’s claims directed at t he actions of the state magistrate judge are properly reviewed through a challenge to1 Larson actually filed a motion for a certificate of appealability, however, because his petition for habeas corpus relief was f iled on April 1, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act do not apply. We consider his motion as a request for a certificate of probable cause and reject that motion. - 3 - the judgment of the state district court. Cf. Collins v. Hesse , 957 F.2d 746,748 (10th Cir. 1992) (“[B]ecause Collins was allegedly incarcerated on an enhanced sentence it was appropriate to construe his habeas action as challenging his present confinement even though the essence of his attack was the alleged unconstitutionality of the prior predicate convicti ons.”). Larson filed two prior federal habeas petitions, but has never asserted th e claims presented in this, his third, petition, nor has he demonstrated cause and prejudice or that a fundamental miscarriage of justice would occur if the claims ar e not considered. See McCleskey v. Zant , 499 U.S. 467, 492-94 (1991). The district court held that Larson’s present petit ion is barred by the abuseof-the-writ doctrine. We agree and accordingly we deny his motion for a certificate of probable cause. 1
The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge