* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### OCT 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANCISCO MONTANO, Petitioner-Appellant,
v. JAY SHELTON, Warden and ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents-Appellees. No. 97-3091 (District of Kansas) (D.C. No. 93-CV-3523)

ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges. After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument.1 Montano also asserted the following two claims befo re the district court:

(1) prosecutorial misconduct during the State’s clo sing argument denied him a fair trial; and (2) the trial judge erred in failin g to instruct the jury on voluntary intoxication. Montano has, however, affirmatively waived appellate review of these issues by failing to raise or brief these iss ues in either his application for a certificate of appealability or his brief on appeal
. -2- Francisco Montano, appearing pro se , appeals the district court’s denial of his petition for a writ of habeas corpus filed purs uant to 28 U.S.C. § 2254. Montano claims that he is entitled to a writ of hab eas corpus on the following grounds: (1) the trial court erred in allowing Mont ano to be cross examined in English when his primary language is Spanish; (2) the state obtained evidence through statements Montano made to police and throu gh a warrantless search of Montano’s home based on unlawful waivers of Montano ’s rights. 1 In denying Montano’s petition, the district court concluded as follows: (1) Montano failed to establish that the trial court rendered his trial f undamentally unfair when it allowed Montano to be cross examined in English bec ause “the trial evidence and [Montano’s] cross examination testimony fully demon strated [Montano’s] working understanding and use of English, and . . . [Montano] fail[ed] to identify how the outcome of his trial would have been altere d if his cross examination had not been conducted in English with an interpreter available for assistance; and (2) the state court made factual findings, which are pr esumed correct and may only be set aside if not fairly supported by the record, th at Montano sufficiently2 The Supreme Court recently held that the provisions of Chapter 153 of

Title 28 of the United States Code, including § 225 3(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are generally not retroactive. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997). Because Montano’s case was pending on the AEDPA’s effective date, he is not su bject to the AEDPA, but is instead subject to§ 2253's previous requirement that he obtain a certificate of probable cause. We grant the certificate of probab le cause and proceed to the merits of this case. -3- understood the Mirandawarnings and the consent form for the search. Mon tano appeals. This court exercises jurisdiction pursuant to 28 U.S.C. § 2253 (1994) and 28 U.S.C. § 1291 and affirms. 2 This court has reviewed de novo Montano’s brief, the district court’s order, and the entire record on appeal. Based on that rev iew, we affirm for substantially the reasons set out in the district court’s well-re asoned Memorandum and Order dated March 25, 1997. The judgment of the United States District Court fo r the District of Kansas is hereby AFFIRMED
. ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge