                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            SEP 22 1998
                                FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    VINCENT JAMES ZURLA,

                Petitioner-Appellant,

    v.                                                   No. 98-2008
                                                 (D.C. No. CIV-97-841-JP/LFG)
    TIM LEMASTER, Warden;                                  (D. N.M.)
    ATTORNEY GENERAL STATE
    OF NEW MEXICO,

                Respondents-Appellees.




                                ORDER AND JUDGMENT        *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.



         After examining petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist 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      This order and judgment is not binding precedent, except under the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.
       Petitioner, a prisoner of the State of New Mexico appearing pro se, appeals

from the district court’s denial of his petition for writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254. The district court also denied a certificate of

appealability.

       Before petitioner may proceed on appeal, he must secure a certificate of

appealability from this court.   See id. § 2253(c)(1)(A). Raising the same issues

he raised in the district court, petitioner argues that this court should grant a

certificate of appealability because: (1) the State’s failure to file an amended

supplemental information charging him as a habitual offender deprived him of

due process; (2) the State violated the plea agreement by failing to give him the

benefit of one less habitual offender enhancement; (3) the eight-and-one-half

months’ delay between his probation violation arraignment and the probation

violation hearing violated due process; and (4) his counsel at the probation

violation hearing was ineffective because counsel failed to preserve issues for

appeal and failed to properly prepare for the probation violation hearing.

       Upon consideration of the record and petitioner’s brief, we conclude

petitioner has failed to make “a substantial showing of the denial of a

constitutional right.”   Id. § 2253(c)(2). We DENY petitioner’s request for a

certificate of appealability for substantially the reasons stated by the magistrate

judge in his findings and recommended disposition filed September 12, 1997, and


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adopted by the district court on December 23, 1997. The appeal is DISMISSED.

The mandate shall issue forthwith.



                                                Entered for the Court



                                                Paul J. Kelly, Jr.
                                                Circuit Judge




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