* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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 

### JUN 23 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNIS CARL GERMANY,

Petitioner - Appellant,

v. ARISTEDES W. ZAVARAS, Director of the Colorado Department of Corrections; and GAIL NORTON, Attorney General for the State of Colorado, Respondents - Appellees. No. 96-1506 (D. Ct. No. 96-Z-999) (D. Colo.)

ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument.- 2 -

Petitioner Dennis Carl Germany appeals from the dis trict court’s September 27, 1996 order adopting the findings and recommendations of the magistrate judge and dismissing his successive 28 U.S.C. § 225 4 habeas petition. The magistrate judge found that all of the issues raise d by petitioner in this petition have either been the subject of prior petitions or petitioner had failed to raise the claims in earlier habeas petitions. The magistrate judge further found that petitioner had demonstrated no cause for failing to raise new claims in prior proceedings and that petitioner had failed to show that failure to consider his claims would result in a miscarriage of justice. T hus, the magistrate judge, in recommending that petitioner’s petition be dismisse d apparently relied on the legal standards that governed analysis of habeas co rpus petitions prior to the passage of the Antiterrorism and Effective Death Pe nalty Act of 1996 (“AEDPA”) and found that petitioner’s petition constituted anabuse of the writ and should be dismissed. The district court, in its order of dis missal, noted that this habeas action was initiated on April 25, 1996, but the dis trict court also apparently relied upon applicable law prior to the effective date of the AEDPA. The record contains an ambiguity regarding the date of filing of this petition for habeas corpus. The face of the record copy of the petition for the writ of habeas corpus shows that it was filed April 25, 1996 in the United States District Court for the District of Colorado. Assum ing that filing stamp is correct,- 3 -

the petition was filed one day after the effective date of the AEDPA. The magistrate judge recites in his order a filing date of April 6, 1996, which is apparently in error. In the order of dismissal, th e district court correctly recites the date of April 25, 1996. There is no dispute th at this petition is a successive petition. Assuming that petitioner is required to comply with the relevant provisions of the AEDPA the district court in her o rder of November 8, 1996, applied the appropriate standards in dismissing the case and refusing to issue a certificate of appealability on the grounds that th e petitioner had not made a substantial showing of the denial of a constitution al right. Under the provisions of the AEDPA, the district court had no jurisdictio n to decide petitioner’s successive 2254 petition without the issuance of a certificate of appealability. Even if prior law applied, the district court corre ctly determined that petitioner had failed to show a fundamental miscarriage of jus tice, and therefore that the petition was an abuse of the writ. We construe the notice of appeal and appellate brie f filed in this court as an implied application for leave to file a successive 28 U.S.C. § 2254 petition. We agree with the magistrate judge and the district co urt that this application for leave to file a successive petition should be denie d. This court has thoroughly reviewed all of the filings in the district court a nd in this court and concludes that petitioner has failed to make a prima facie showing that satisfies the AEDPA- 4 -

criteria. 28 U.S.C. § 2244(b)(3)(C). The claims r aised in the district court and on appeal do not meet either of the standards set forth in 28 U.S.C. § 2244(b)(2) as amended. Petitioner does not rely on any new rule of constitutional law or on a factual predicate that was previously undiscoverabl e. We therefore affirm the order of the district court dismissing petitioner’s successive 28 U.S.C. § 2254 petition and affirm the order of the district courtdenying the certificate of appealability. Appeal DISMISSED. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge