*

 This order and judgment is not binding precedent except under the

doctrines of 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.

UNITED STATES COURT OF APPEALS

Filed 8/5/96

TENTH CIRCUIT

_____________________

FLOYD MARCUS ROBINSON,

 Petitioner-Appellant,

v.

JOE WILLIAMS, Warden, Western

NM Correctional Facility; TOM

UDALL, Attorney General, State of

New Mexico,

 Respondents-Appellees.

No. 95-2265

(D.C. No. CIV-95-31)

(D. New Mexico)

_____________________

ORDER AND JUDGMENT*

_____________________

Before BRORBY, EBEL and HENRY, Circuit Judges.

_____________________

After examining the briefs and appellate record, this panel has determined
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unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Floyd Marcus Robinson, a New Mexico state prisoner proceeding pro se

and in forma pauperis, appeals the denial of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated, we grant Mr.

Robinson's application for a certificate of appealability and affirm the judgment

of the district court.

A New Mexico jury found Mr. Robinson guilty of trafficking cocaine in

violation of 1978 N.M.S.A. § 30-31-20. In his federal petition, Mr. Robinson

alleged inadequate assistance from appellate counsel in violation of the

Fourteenth Amendment. Respondents moved to dismiss on the ground the claim

was procedurally barred. A magistrate judge concluded the claim was indeed

procedurally barred and that the petition should be dismissed. The magistrate

judge noted Mr. Robinson had appealed his conviction to the New Mexico Court

of Appeals, but did not seek certiorari review of that court's affirmance. Mr.

Robinson also filed a petition for a writ of habeas corpus in the New Mexico

District Court for the Ninth Judicial district, but he did not seek certiorari review
-3-

of the denial of his petition. The magistrate judge also found Mr. Robinson had

failed to demonstrate cause and prejudice excusing his failure to seek certiorari

review of the denial of his state habeas corpus petition. The district court

overruled Mr. Robinson's objections to the magistrate judge's report and

recommendation and dismissed Mr. Robinson's petition with prejudice. The

district court also denied Mr. Robinson's application for a certificate of

appealability.

Mr. Robinson now contends the magistrate judge and the district court

erred in concluding his claim he received inadequate assistance from appellate

counsel is procedurally barred from review on the merits in federal court. We

disagree. Once the New Mexico Court of Appeals denied Mr. Robinson's habeas

corpus petition, he had 30 days to file a petition for certiorari review by the New

Mexico Supreme Court. S.C.R.A. 12-501(B); N.M. R. Crim. P. 5-802(G)(2). The

30 day period expired long ago. If, as in this case, the state court to which the

petitioner would be required to present his claim would now find the claim

procedurally barred under state law, "there is a procedural default for purposes of

federal habeas regardless of the decision of the last state court to which the

petitioner actually presented his claims." Coleman v. Thompson, 501 U.S. 722,
1

 After he filed his federal petition, Mr. Robinson moved for leave to file

an untimely petition for certiorari in the New Mexico Supreme Court, and the

petition was denied. It is unclear from the record whether he sought certiorari

review of the New Mexico Court of Appeals' affirmance on direct appeal, the

denial of his state habeas corpus petition, or both. In any event, it is clear Mr.

Robinson is now barred from obtaining review of the denial of his habeas corpus

petition in the New Mexico Supreme Court, and his claim is therefore

procedurally barred under Coleman.

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735 n.1 (1991).1

We also reject Mr. Robinson's contention the district court should have

dismissed his petition without prejudice so that he could exhaust his state

remedies by filing a successive habeas corpus petition in New Mexico District

Court and then petitioning for certiorari review in the New Mexico Supreme

Court if his state habeas corpus petition was denied. Under New Mexico law, a

prisoner generally may not relitigate issues raised in previous habeas corpus

petitions. Although the New Mexico Supreme Court has recognized certain

exceptions to this general rule, see Clark v. Tansy, 882 P.2d 527, 531-32 (N.M.

1994) (petitioner may relitigate claims in light of intervening change in law or

facts), those exceptions do not apply in this case. We also reject Mr. Robinson's

contention the bar against relitigating issues decided in previous habeas corpus

proceedings is not an "adequate" state procedural bar because it has not been

applied evenhandedly. See Brecheen v. Reynolds, 41 F.3d 1343, 1353 (10th Cir.
-5-

1994), cert. denied, 115 S. Ct. 2564 (1995). The mere fact there are recognized

exceptions to a general rule does not mean that rule is not applied evenhandedly.

Mr. Robinson does not assert in his brief on appeal that he has

demonstrated cause and prejudice sufficient to excuse his failure to petition the

New Mexico Supreme Court for certiorari review of the Court of Appeals' denial

of his petition for a writ of habeas corpus, and this court perceives no basis for

such an argument. We perceive no error in the report of the magistrate judge, a

copy being attached.

AFFIRMED.

Entered for the Court:

WADE BRORBY

United States Circuit Judge