F I LED

United States Court of Appeals

Tenth Circuit

August 15, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SHAWN LOUIS JACOBS, 

Petitioner-Appellant, No. 06-2130

v. (D.C. No. CIV-05-1183 BB/WPL)

ROBERT ULIBARRI, Warden,

Southern New Mexico Correctional

Facility; ATTORNEY GENERAL

FOR THE STATE OF NEW MEXICO,

(D. New Mex.)

Respondents-Appellees.

 

ORDER

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Appellant is a state prisoner, appearing pro se, who seeks habeas relief

pursuant to 28 U.S.C. § 2254. On February 21, 1992, Appellant entered a nocontest plea to the felony offense of receiving stolen property. The state court

gave him an eighteen-month suspended sentence. On July 29, 1992, Appellant

pleaded guilty to possession of a firearm by a felon, receiving stolen property,

and conspiracy to commit forgery. He was sentenced to a total of three years’

imprisonment for these offenses. His earlier eighteen-month sentence was set to

run concurrently with his three-year sentence for the later convictions.

In October 1994, Appellant was released from prison. Three days later he
-2-

killed a high school student. In 1996, he was convicted of murder, kidnaping,

attempted sexual penetration, and several related offenses. He was sentenced to

life imprisonment plus 69.5 years. Appellant has filed several appeals and

petitions in both state and federal court. 

He appeals to this court challenging his 1996 sentence on the ground that

his 1992 convictions were invalid. Appellant has argued previously in related,

nevertheless distinct, petitions that he was not a felon when he allegedly

committed his 1992 offense of felon in possession of a firearm because he had not

then been sentenced for his earlier 1992 stolen property offense. This argument

was rejected by a state judge and a federal magistrate judge. See Proposed

Findings and Recommended Disposition, 2 (D.N.M. Mar. 10, 2006). 

The magistrate judge, who construed Appellant’s arguments generously,

recommended that Appellant’s 1992 convictions could no longer be open to direct

or collateral attack because the time to bring a habeas petition had expired. Id. at

5. We agree. In addition, the district court found that even if Appellant could

demonstrate his entitlement to equitable tolling, “his Fifth Amendment claim fails

because the right to grand jury indictment does not apply to state prosecutions.” 

Order Adopting Magistrate Judge’s Proposed Findings And Recommended

Disposition, 1 (D.N.M. Apr. 7, 2006) (citing Aldridge v. Marshall, 765 F.2d 63,

68 (6th Cir. 1985). The district judge also determined that his ineffective

assistance of counsel claim and his demand for an evidentiary hearing were
-3-

without merit. Id. at 1-2.

Appellant now seeks from this court a certificate of appealability. The

issues he raises on appeal are identical to those brought before the district court.

To grant a certificate of appealability, Appellant must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994). 

To meet this burden, Appellant must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (quotation omitted).

We have carefully reviewed Appellant’s brief, the magistrate judge’s

recommendations, the district court’s disposition, and the record on appeal. 

Nothing in the facts, the record on appeal, or Appellant’s filing raises an issue

which meets our standard for the grant of a certificate of appealability. For

substantially the same reasons set forth by the district court in its order of April 7,

2006, we cannot say “that reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner.” 

Id. 
-4-

Accordingly, we DENY Appellant’s request for a certificate of

appealability and DISMISS the appeal. Appellant's motion for appointment of

counsel is denied.

Entered for the Court

Monroe G. McKay

Circuit Judge