* This order and judgment is not binding precedent, except under the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

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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 23 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

 

DAVID EARL DOBY,

Petitioner - Appellant,

v. No. 97-1365

RICHARD MARR; ATTORNEY

GENERAL FOR THE STATE OF

COLORADO,

Respondents - Appellees.

(D.C. No. 97-M-1169)

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**

 

Petitioner David Earl Doby seeks a certificate of appealability to appeal the district

court’s decision dismissing his 28 U.S.C. § 2254 petition for lack of subject matter

jurisdiction. Petitioner also challenges the district court’s order denying his “petition to

reopen and rehear the case.” We conclude Petitioner has not made a substantial showing
2

of the denial of a constitutional right. Therefore, we deny his request for a certificate of

appealability and dismiss the appeal.

Petitioner is an inmate at the Centennial Correctional Facility in Canon City,

Colorado. On June 5, 1997, Petitioner filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 seeking relief from a 1988 Colorado state court conviction. 

As grounds for his petition, Petitioner alleged, inter alia, that his trial and appellate

counsel were ineffective, that the trial court had no jurisdiction over his case, that his

right to a speedy trial was violated, that his rights to substantive and procedural due

process were violated, and that his right to equal protection was violated. The district

court referred the case to a magistrate judge who issued an order to show cause why

Petitioner’s request for a writ of habeas corpus should not be dismissed for failing to

comply with the one-year limitation period provided for in the Antiterrorism and

Effective Death Penalty Act of 1996. 28 U.S.C. § 2244(d)(1). After considering

Petitioner’s response, the magistrate recommended that the case be dismissed for lack of

subject matter jurisdiction. The district court adopted the magistrate’s recommendation

and dismissed Petitioner’s § 2254 petition. On appeal, Petitioner requests, among other

things, that we grant his certificate of appealability, reverse the district court’s decision,

and remand the case with instructions to grant his request for a writ of habeas corpus.

We have reviewed Petitioner’s application for certificate of appealability, his brief,

the district court’s order, and the entire record before us. We conclude Petitioner has not
3

demonstrated that the district court’s disposition of his § 2254 petition is debatable,

reasonably subject to a different outcome on appeal, or otherwise deserving of further

proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983) (substantial

showing of denial of constitutional right shown by demonstrating that; (1) issues raised

are debatable among jurists, (2) an appellate court could resolve issues differently, or (3)

the questions deserve further proceedings.). Accordingly, we DENY Petitioner’s motion

for a certificate of appealability and DISMISS his appeal.

Entered for the Court,

Bobby R. Baldock

Circuit Judge