                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         SEP 10 1998
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


AUDREY SPLAIN,

            Petitioner-Appellant,

v.                                                      No. 98-2128
                                                   (Dist. of New Mexico)
TOM NEWTON, Warden; ATTORNEY                     (D.C. No. CIV-95-808-JP)
GENERAL FOR THE STATE OF NEW
MEXICO,

            Respondents-Appellees.




                          ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
       Audrey Splain seeks to appeal the district court’s order dismissing her 28

U.S.C. § 2254 habeas corpus petition with prejudice. Because this court

concludes that Splain has not made a substantial showing of the denial of her

constitutional rights, we deny her a certificate of probable cause and dismiss the

appeal. 1

       Splain was convicted of trafficking in cocaine in New Mexico state court

in 1994. Splain exhausted her claims on direct appeal to the New Mexico Court

of Appeals and filed this § 2254 petition in 1995. Splain raises the following

three claims in support of her petition: (1) her Sixth Amendment rights were

violated by the exclusion of African-Americans from the venire panel; (2) her

due process rights were violated by the admission of a mass spectrometer analysis

to prove the illegal material was cocaine; and (3) she was convicted on the basis

of insufficient evidence in violation of the Due Process Clause.

       In resolving Splain’s claim regarding the venire panel, the district court

noted that the African-American population within the relevant New Mexico

district was between two and five percent and that the total size of the venire was


       1
        Because Splain filed her § 2254 petition in July of 1995, the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply.       See Lindh
v. Murphy , 117 S. Ct. 2059, 2063 (1997);   United States v. Kunzman , 125 F.3d
1363, 1364 n.2 (10th Cir. 1997). This court, therefore, construes Splain’s appeal
as a request for a certificate of probable cause under the pre-AEDPA version of
28 U.S.C. § 2253. See Hernandez v. Starbuck , 69 F.3d 1089, 1090 n.1 (10th Cir.
1995).

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forty-eight people. In light of the size of the venire and the African-American

population, one or two African-Americans would have represented a fair cross-

section of the community. With this background in mind, the district court

concluded that Splain’s claim failed because she could not show a systematic and

deliberate exclusion of African-Americans from the venire.         See United States v.

Ruiz-Castro , 92 F.3d 1519, 1527 (10th     Cir. 1996) (holding that to establish a

prima facie case under the Sixth Amendment, a movant must show that the

underrepresentation of a minority group is due to “systematic exclusion of the

group in the jury-selection process”). Splain’s claim was based solely on the

absence of African-American’s from her particular venire without reference to

whether such a result was a statistical anomaly or a systematic practice.       See

Duran v. Missouri , 439 U.S. 357, 362 (1979) (movant stated         prima facie case by

demonstrating systematic exclusion of minority group over six month period);

Taylor v. Missouri , 419 U.S. 522, 524 (1975) (same over one year period).

Furthermore, the African-American population in the relevant area was small

enough that the absence of any African-Americans from the venire was not

statistically unlikely.   Cf. Castaneda v. Partida , 430 U.S. 482, 486-87 (1977)

(movant made prima facie case where Mexican-American population in county

was approximately eighty percent while percentage of Mexican-Americans on

grand jury panels was approximately thirty-nine percent over ten year period).


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       As to Splain’s claims concerning the admission of the mass spectrometer

tests, the district court noted that Splain’s arguments related to the weight of the

evidence rather than its admission and that the admission of the tests did not

render her trial fundamentally unfair.      See Maes v. Thomas , 46 F.3d 979, 987

(10th Cir. 1995) (holding that a federal court cannot grant habeas relief for state

evidentiary rulings unless those rulings rendered the trial as a whole

fundamentally unfair). Finally, the district court noted that Splain’s claims

regarding the sufficiency of the evidence boiled down to the claim that the sole

witness against her at trial was not worthy of belief. As properly noted by the

district court, in concluding whether evidence is constitutionally sufficient, a

federal court “may neither weigh conflicting evidence nor consider the credibility

of witnesses.”   United States v. Harrod , 981 F.2d 1171, 1174 (10th      Cir. 1992).

       This court has considered      de novo Splain’s appellate brief, the magistrate’s

report and recommendation, and the entire record on appeal. In light of that

review, there can be no question that the district court’s resolution of Splain’s

claims is not debatable among jurists, deserving of further proceedings, or

subject to an alternate resolution.      See Gallagher v. Hannigan , 24 F.3d 68, 68

(10th Cir.1994). Accordingly, Splain has not made a substantial showing of the

denial of an important federal right and is not, therefore, entitled to a certificate




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of probable cause. The request for a certificate of probable cause is   DENIED

and this matter is DISMISSED .

                                          ENTERED FOR THE COURT



                                          Michael R. Murphy
                                          Circuit Judge




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