* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/5/96 TENTH CIRCUIT

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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)

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ORDER AND JUDGMENT *

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Before BRORBY, EBEL and HENRY , Circuit Judges.

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After examining the briefs and appellate record, th is panel has determined-2-

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 reaso ns stated, we grant Mr. Robinson's application for a certificate of appeala bility and affirm the judgment of the district court.

A New Mexico jury found Mr. Robinson guilty of traf ficking cocaine in violation of 1978 N.M.S.A. § 30-31-20. In his fede ral petition, Mr. Robinson alleged inadequate assistance from appellate counse l in violation of the Fourteenth Amendment. Respondents moved to dismiss on the ground the claim was procedurally barred. A magistrate judge conclu ded the claim was indeed procedurally barred and that the petition should be dismissed. The magistrate judge noted Mr. Robinson had appealed his convictio n to the New Mexico Court of Appeals, but did not seek certiorari review of t hat 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, buthe did not seek certiorari review-3-

of the denial of his petition. The magistrate judg e 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 pet ition. The district court overruled Mr. Robinson's objections to the magistrate judge's report and recommendation and dismissed Mr. Robinson's petitio n with prejudice. The district court also denied Mr. Robinson's applicati on for a certificate of appealability.

Mr. Robinson now contends the magistrate judge and the district court erred in concluding his claim he received inadequat e assistance from appellate counsel is procedurally barred from review on the m erits in federal court. We disagree. Once the New Mexico Court of Appeals den ied 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 cas e, the state court to which the petitioner would be required to present his claim w ould now find the claim procedurally barred under state law, "there is a pr ocedural default for purposes of federal habeas regardless of the decision of the la st 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 Mexi co 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' affirman ce 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 c laim is therefore procedurally barred under Coleman

.
-4- 735 n.1 (1991). 1

We also reject Mr. Robinson's contention the distri ct court should have dismissed his petition without prejudice so that he could exhaust his state remedies by filing a successive habeas corpus petit ion in New Mexico District Court and then petitioning for certiorari review in the New Mexico Supreme Court if his state habeas corpus petition was denie d. Under New Mexico law, a prisoner generally may not relitigate issues raised in previous habeas corpus petitions. Although the New Mexico Supreme Court h as 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 deci ded in previous habeas corpus proceedings is not an "adequate" state procedural b ar 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 rul e is not applied evenhandedly.

Mr. Robinson does not assert in his brief on appeal that he has demonstrated cause and prejudice sufficient to excu se 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 th is court perceives no basis for such an argument. We perceive no error in the repo rt of the magistrate judge, a copy being attached.

AFFIRMED. Entered for the Court : WADE BRORBY United States Circuit Judge