                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 26 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JAMES CRAIG LITTERAL,

                Petitioner-Appellant,

    v.                                                   No. 98-2270
                                                (D.C. No. CIV-97-546-SC/RLP)
    JOE WILLIAMS, Warden;                                  (D. N.M.)
    ATTORNEY GENERAL STATE
    OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , 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.


*
      This order and judgment is not binding precedent, except under the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.
      Plaintiff James Craig Litteral seeks a certificate of appealability in order to

pursue this appeal from an order of the district court denying his petition for

habeas corpus brought pursuant to 28 U.S.C. §      2254 . Because Litteral has failed

to make “a substantial showing of the denial of a constitutional right,” as required

under 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal.

      In 1988, Litteral was convicted in New Mexico state court of first degree

murder with a firearm enhancement.       See State v. Litteral , 793 P.2d 268, 269-70

(N.M. 1990). He was sentenced to life in prison with a one year concurrent

sentence on the firearm enhancement.      See id. at 270.

      In his petition, Litteral contended that he had been subjected to double

jeopardy when the trial court declared a mistrial over his objection where no

manifest necessity existed. He asserted he was denied a fair trial because

evidence concerning his involvement with drugs and weapons was admitted and

because his cross-examination of the state’s witness was limited. Litteral alleged

that his motion for a new trial based on newly discovered evidence should have

been granted and that he received ineffective assistance of counsel at trial.

      The district court held that no constitutional violations cognizable in a

habeas proceeding had been stated. The court dismissed the case with prejudice.

On appeal, Litteral argues   that the district court erred in its ruling.




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      We have reviewed the district court’s judgment in light of Litteral’s

submissions to this court and the record on appeal. We agree that Litteral failed

to establish that the state court decision “was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on

an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,”   id. § 2254(d)(2).

      We DENY Litteral’s request for a certificate of appealability and DISMISS

this appeal. We GRANT his motion for in forma pauperis status.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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