                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 18 2000
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 JIMMY R. SMITH,

           Petitioner-Appellant,
 v.                                                       No. 99-2334
 ATTORNEY GENERAL FOR THE                       (D.C. No. CIV-99-534-BB/RLP)
 STATE OF NEW MEXICO; ELOY                                 (D.N.M.)
 MONDRAGON, Warden, Guadalupe
 County Correctional Facility,

           Respondents-Appellees.




                             ORDER AND JUDGMENT           *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Jimmy R. Smith, a New Mexico state prisoner appearing pro se,


       This order and judgment is not binding precedent, except under the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.
seeks a certificate of appealability to appeal the district court’s denial of his 28

U.S.C. § 2254 petition for writ of habeas corpus. Because we conclude Smith has

failed to make “a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), we deny his request for a certificate of appealability and

dismiss the appeal.

      Smith was convicted in New Mexico state district court on one count of

forgery, a third degree felony. Because Smith was found to be a habitual offender

under New Mexico state law, he was sentenced to a total of 11 years of

imprisonment. The New Mexico Court of Appeals (NMCOA) affirmed Smith’s

conviction on direct appeal. Although Smith filed a petition for writ of certiorari

with the New Mexico Supreme Court, that petition was denied. Smith

subsequently sought post-conviction relief in the New Mexico state courts by

filing a petition for writ of habeas corpus. The state district court summarily

dismissed Smith’s petition, and the New Mexico Supreme Court denied review.

      Shortly after exhausting his state court remedies, Smith filed this federal

habeas action. In his petition, Smith asserted three claims for relief: (1) he was

denied his constitutional right to a speedy trial; (2) his trial counsel was

ineffective for failing to (a) move for dismissal on speedy trial grounds, (b) move

for dismissal based upon New Mexico’s “six-month rule,” and (c) move for the

trial judge’s recusal; and (3) the trial judge should have recused himself because


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he had previously prosecuted Smith. In a detailed report and recommendation, the

magistrate judge recommended denial of the petition. The district court adopted

the report and recommendation in its entirety and denied the petition. The district

court subsequently denied Smith’s application for a certificate of appealability.

See 28 U.S.C. § 2253(c). His renewed application is before this court.

      A petitioner may appeal the denial of a habeas corpus petition only if a

“circuit justice or judge” issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A). A certificate of appealability “may issue . . . only if the

applicant has made a substantial showing of the denial of a constitutional right.”

Id. § 2253(c)(2); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

      In disposing of Smith’s direct appeal, the NMCOA carefully analyzed his

ineffective assistance claims, as well as the merits of the underlying substantive

claims. The NMCOA concluded that (1) New Mexico’s “six-month rule” had not

been violated, (2) Smith’s right to a speedy trial had not been violated (because,

in part, the time between Smith’s arrest and the scheduled trial date did not meet

the minimum threshold for a presumption of prejudice), and (3) there was no

evidence that the trial judge’s previous prosecution of Smith in any way

prejudiced Smith. Based upon these conclusions, the NMCOA further concluded

that Smith had failed to establish a valid claim of ineffective assistance of

counsel.


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      After carefully examining the record on appeal, we are not persuaded that

Smith has made a substantial showing of the denial of a constitutional right. In

particular, we are not persuaded that any of the issues asserted in his federal

habeas petition “are debatable among jurists, . . . that a court could resolve the

issues differently, or that the questions deserve further proceedings.” United

States v. Sistrunk, 111 F.3d 91, 91 (10th Cir. 1997). Accordingly, we deny his

request for a certificate of appealability and dismiss the appeal.

      The application for certificate of appealability is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.

                                               Entered for the Court

                                               Mary Beck Briscoe
                                               Circuit Judge




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