                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              SEP 24 1997
                              FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

    THEODORE H. WOOD,

                Petitioner-Appellant,
    v.
                                                           No. 96-2028
    DONALD A. DORSEY; ATTORNEY                      (D.C. No. CIV-93-930-HB)
    GENERAL OF THE STATE OF NEW                             (D. N.M.)
    MEXICO,

                Respondents-Appellees.


                              ORDER AND JUDGMENT *


Before TACHA, MCKAY, and BALDOCK, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

         Petitioner appeals the district court’s denial of habeas relief, see 28 U.S.C.

§ 2254, from his nine-year sentence imposed upon a New Mexico fraud



*
      This order and judgment is not binding precedent, except under the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.
conviction, see N.M. Stat. Ann. § 30-16-6 (Michie 1978). The sole issue

presented on appeal is whether the state sentencing judge deprived petitioner of

equal protection of the law by giving him a sentence more harsh than those

imposed by other judges in the same judicial district upon similarly situated

women. Upon de novo review, see Houchin v. Zavaras, 107 F.3d 1465, 1469

(10th Cir. 1997), we affirm.

      Petitioner failed to meet his burden of proving that the sentencing judge

acted with a discriminatory purpose. See McCleskey v. Kemp, 481 U.S. 279, 292

(1987). Petitioner did not assert any evidence specific to his case that would

support an inference that gender considerations played any part in the calculation

of his sentence. See id. at 292-93. Further, his statistics did not rise to the level

of the “stark” pattern, see id. at 293, necessary to establish the “exceptionally

clear proof” of discriminatory intent required, see id. at 297. See also United

States v. Thurmond, 7 F.3d 947, 951-53 (10th Cir. 1993).

      The judgment of the United States District Court for the District of New

Mexico is, therefore, AFFIRMED.


                                                      Entered for the Court


                                                      Monroe G. McKay
                                                      Circuit Judge



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