* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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. 

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

### FEB 25 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENNETH SINOR,

Petitioner - Appellant, No. 98-2272

v. (D. New Mexico) TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents - Appellees. (D.C. No. CR-98-430-SC)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Although we take this date from Sinor’s certificate of mailing, we do not

consider whether New Mexico law applies any mailboxrule to such state court filings. Kenneth Sinor seeks a certificate of appealability in order to appeal from the district court’s dismissal of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also seeks leave to proceed i n forma pauperis. Because Sinor has failed to make “a substantial showing of the denial of a constitutional right,” we deny his application for a certificate o f appealability and dismiss this appeal. 28 U.S.C. § 2253(c)(2). While he was a parolee of the New Mexico Departmentof Corrections, Sinor was arrested on new charges. Following his arrest, he was confined to the county jail, and a parole “hold” was issued. Sinorescaped from the county jail, was captured, and subsequently was charged with the crime of escape from a penitentiary. He moved to dismiss, arguing that he was not in the custody of the penitentiary at the time of his escape, and that, t herefore, the charge was improper. The state trial court denied his motion, and he then pleaded guilty, reserving the right to appeal the court’s ruling. His conviction was entered on December 14, 1989. He appealed, and those proceedi ngs were concluded with the New Mexico Supreme Court’s denial of his petition f or certiorari on April 26, 1990. On April 5, 1997, Sinor mailed a habeas petition to state court. 1 After the petition was denied, Sinor sought a writ of certior ari, which the New Mexico Supreme Court denied on August 15, 1997. Sinor then filed his federal petition2 The relevant dates suggest that the state could hav e raised a statute of

limitations defense, although it did not make such an argument, either in the district court or to us. See 28 U.S.C. § 2244(d); see also Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998); United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). We have previously recognized th e power of both the district court and this court to raise sua sponte certain no njurisdictional bars in habeas cases, when doing so furthers “judicial efficiency. ” United States v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994). However, inasmu ch as we may efficiently dispose of this matter on the arguments actually ma de to us, we do not now address the issue of whether, and under what circum stances, a court may apply sua sponte a § 2244 statute of limitations bar. - 3 - on April 13, 1998, 2 contending that he was charged under the wrong statute and that he received ineffective assistance of counsel. The magistrate judge recommended that Sinor’s petition be denied on the merits. Sinor filed objections, following which the district court cond ucted a de novo review and adopted the magistrate judge’s recommendations. On appeal, Sinor’s primary argument concerns the al leged misapplication of state law. However, § 2254 federal habeas corpus r elief is available only to those held in state custody in violation of federal const itutional or statutory law; it is not available to remedy alleged violations of state law. See Estelle v. McGuire , 502 U.S. 62, 67-68 (1991); Richmond v. Embry , 122 F.3d 866, 870 (10th Cir. 1997), cert. denied , 118 S. Ct. 1065 (1998). “[I]t is not the provinc e of a federal habeas court to reexamine state-court determination s on state-law questions. In conducting habeas review, a federal court is limite d to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”- 4 -

Estelle , 502 U.S. at 67-68. Therefore, we do not considerSinor’s claims based on violations of state law. Sinor also alleges that his trial counsel rendered ineffective assistance. In his brief to us, Sinor’s sole basis for this claim is that “[t]he public defender in Chavis County has never won a case,” and he complai ns that no hearings were held to establish the facts. Appellant’s Br. at 12 . In order to prevail on a claim of ineffective assistance of counsel, Sinor must sh ow that counsel’s performance was deficient and that counsel’s errors prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). Sinor’s brief to us gi ves no facts or acts which establish any deficiency or prejudice in his case, and, thus, he has made no showing of ineffectiveness. We note, however, thatthe magistrate judge considered the ineffectiveness claim to relate to a n alleged failure of counsel to raise the substantive issue regarding the allegedlyimproper charge against Sinor. In any event, the state record demonstrates that 1) Sinor’s counsel filed timely and thorough motions regarding the issue, and 2) this c laim was fully considered and reviewed in New Mexico state courts. Thus, Sinor h as failed to demonstrate ineffectiveness regarding this issue. We GRANT Sinor’s application to proceed in forma pa uperis. For the reasons stated, we DENY the certificate of appealab ility and DISMISS the appeal.
ENTERED FOR THE COURT- 5 - Stephen H. Anderson Circuit Judge