                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         NOV 21 2001
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

 LEONARD DAVIS,

               Petitioner - Appellant,                  No. 01-2198
          v.                                         (D. New Mexico)
 ERASMO BRAVO, Warden,                        (D.C. No. CIV-01-140-JP/RLP)
 Guadalupe County Correctional
 Facility; THE CORRECTIONS
 DEPARTMENT OF THE STATE OF
 NEW MEXICO; ATTORNEY
 GENERAL FOR THE STATE OF
 NEW MEXICO,

               Respondents - Appellees.


                             ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.




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

unanimously that oral argument would not materially assist the determination of




      *
       This order and judgment is not binding precedent, except under the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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       This case is before the court on Leonard Davis’ request for a certificate of

appealability (“COA”). Davis seeks a COA so that he can appeal the district

court’s dismissal with prejudice of his habeas corpus petition.         See 28 U.S.C.

§ 2253(c)(1)(A).   1
                       Because Davis has not “made a substantial showing of the

denial of a constitutional right,” this court         denies his request for a COA and

dismisses this appeal.     Id. § 2253(c)(2).

       Davis is currently serving a life sentence in New Mexico state prison for

first degree murder. He raised the following two general claims in his habeas

petition: (1) he was denied due process by the respondent’s refusal to apply

good-time credits to reduce the time he needed to serve in order to be eligible for

parole from thirty years to fifteen years; and (2) his conviction is invalid under

Apprendi v. New Jersey , 530 U.S. 466 (2000) because the jury would have only

convicted him of second degree murder if it had known that he would not get the



       1
        Davis’ petition is actually a hybrid in the sense that it challenged both his
underlying conviction and the execution of his sentence. It does not matter,
however, whether Davis’ petition is denominated as arising under 28 U.S.C.
§ 2241 or 28 U.S.C. § 2254 because he would need a COA in either case. See
Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (“[C]onsistent with the
plain language of [28 U.S.C.] § 2253(c)(1)(A), this court holds that a state
prisoner must obtain a COA to appeal the denial of a habeas petition, whether
such petition was filed pursuant to § 2254 or § 2241 . . . .”).

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benefit of good-time credits to reduce his parole eligibility date. After the case

was referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C.

§ 636(b)(1)(B), the magistrate judge recommended that the petition be dismissed.

The magistrate judge noted that Davis’ claim to good-time credits was foreclosed

by this court’s decisions in     Stephens v. Thomas , 19 F.3d 498, 501 (10th Cir. 1994)

and Lasiter v. Thomas , 89 F.3d 699, 702 (10th Cir. 1996). As to        Apprendi , the

magistrate simply noted that it had no application to this case. Upon       de novo

review, the district court adopted the recommendation of the magistrate judge and

dismissed Davis’ petition with prejudice.

       In his brief on appeal and request for a COA, Davis asserts that      Stephens

and Lasiter are wrong and that the statutes in New Mexico clearly provide for the

application of good-time credits to reduce the parole eligibility date on a life

sentence.   2
                This court is bound by the decisions in   Stephens and Lasiter absent a

superseding decision of the Supreme Court or reconsideration by the          en banc

court. See In re Smith , 10 F.3d 723, 24 (10th Cir. 1993). Furthermore, the

district court’s interpretation of those cases as foreclosing Davis’ claim is clearly

not debatable among jurists, subject to a different resolution by this court, or



       Neither Davis’ appellate brief nor his request for a COA mention the
       2

Apprendi claim advanced in the district court. That claim is, therefore, waived.
See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994)
(“[A]ppellant failed to raise this issue in his opening brief and, hence, has waived
the point.”).

                                               -3-
deserving of further proceedings.     See Slack v. McDaniel , 529 U.S. 473, 483-84

(2000). Accordingly, Davis has not “made a substantial showing of the denial of

a constitutional right” and is not entitled to a COA.    See id. ; see also 28 U.S.C.

§ 2253(c)(2). Davis’ request for a COA is       DENIED and this appeal is

DISMISSED .

                                                   ENTERED FOR THE COURT


                                                   Michael R. Murphy
                                                   Circuit Judge




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