           UNITED STATES COURT OF APPEALS
Filed 8/15/96
                    TENTH CIRCUIT


 JOE DON SMITH,

          Petitioner-Appellant,
                                                          No. 95-4138
 v.
                                                      (D.C. No. 93-CV-762)
                                                           (Dist. Utah)
 STATE OF UTAH; UTAH COURT
 OF APPEALS,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, KELLY and LUCERO, 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 appeal. Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Mr. Smith brought this federal habeas corpus action when the state denied

his requests for a free transcript to assist his preparation for a state post-

      *
       This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
conviction proceeding in which he sought to establish that he had been denied

effective assistance of counsel at his trial. The federal court ordered the state to

provide transcripts, which were subsequently supplied. Mr. Smith then brought a

motion for contempt on the ground that the transcripts were incomplete and had

been “doctored,” and requested the district court to grant further habeas relief.

       The district court found that the transcripts had been provided within the

time allotted by its order. Mr. Smith has provided this court with no reason to

believe this conclusion is clearly erroneous. Even assuming the transcripts do not

accurately reflect the proceedings they purport to record, such errors or omissions

need not constitute contempt. Mr. Smith’s federal habeas claim rested on the

ground that an indigent prisoner appealing an adverse decision in a state

postconviction proceeding must be afforded appellate review as adequate and

effective as that provided a prisoner who has money to buy transcripts. See Long

v. District Court of Iowa, 385 U.S. 192, 194 (1966); Gardner v. California, 393

U.S. 367, 368 (1969). Mr. Smith received his requested transcript. “[T]here is no

constitutional right to a perfect transcript.” State v. Menzies, 845 P.2d 220, 241

(Utah 1992). Mr. Smith’s remedy for any errors or omissions in the transcript is

in state court.

       We agree with the district court that Mr. Smith has not made the substantial

showing of the denial of a constitutional right necessary to obtain a certificate of


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probable cause. We construe Mr. Smith’s application for a certificate of probable

cause as a motion for a certificate of appealability now required by 28 U.S.C. §

2253(c)(2), see Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), and we deny

it.

                                              ENTERED FOR THE COURT

                                              Stephanie K. Seymour
                                              Chief Judge




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