                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 18 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JOHN A. BERRIEN,

          Petitioner-Appellant,

 v.                                                        No. 97-2285
                                                              (N.M.)
 JOHN SHANKS, Warden;                              (D.Ct. No. CIV-95-1415-JC)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.
                         __________________________

                            ORDER AND JUDGMENT *
                           __________________________

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.
                  __________________________


      After examining the brief 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.




      *
          This order and judgment is not binding precedent except under the doctrines of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 John Berrien appeals from the district court's order dismissing

his petition for writ of habeas corpus under 28 U.S.C. § 2254. 1 In his petition,

Mr. Berrien challenged his conviction in New Mexico state court for possession

of cocaine claiming: (1) his conviction was based on evidence obtained through

an illegal search; (2) his conviction was based on evidence obtained by an

unlawful arrest; (3) he was denied effective assistance of counsel; and (4) he was

denied due process because his appellate attorney failed to raise the ineffective

assistance of counsel claim to the New Mexico Court of Appeals. The district

court adopted the magistrate judge’s proposed findings and recommended

disposition in its order. The magistrate judge held Mr. Berrien failed to meet his

burden of showing he was entitled to relief with respect to his first two claims.

As to Mr. Berrien’s ineffective assistance of counsel claim, the magistrate judge

ruled against Mr. Berrien, concluding he failed to show his counsel’s performance

was deficient and he failed to show prejudice. The magistrate judge also ruled

against Mr. Berrien on his due process claim, finding it without merit.



       1
         The district court denied Mr. Berrien a certificate of appealability in its order
dated September 2, 1997. Since Mr. Berrien's petition was filed prior to April, 24, 1996,
the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub L.
No. 104-132, 110 Stat. 1214 (see United States v. Kunzman, 125 F.3d 1363, 1364 n.2
(10th Cir. 1997), cert. denied, 118 S. Ct. 1375 (1998)), we construe the district court's
order as a denial of a certificate of probable cause rather than a certificate of
appealability.


                                            -2-
      Mr. Berrien appeals only the dismissal of his ineffective assistance of

counsel claim for his trial attorney's failure to file a motion to suppress evidence

of the cocaine. Mr. Berrien contends his trial attorney was ineffective because his

attorney’s decision not to file a motion to suppress was based on insufficient

investigation and unreasonable trial strategy. Furthermore, Mr. Berrien asserts he

was prejudiced by his attorney’s decision not to file the motion because it would

have been meritorious and resulted in his acquittal. Mr. Berrien also requests we

issue a certificate of probable cause as a prerequisite to our jurisdiction over his

appeal.



      We have reviewed the evidentiary hearing transcripts on the petition, the

magistrate's report, the district court's order, the Petitioner's brief and application

for certificate of probable cause. For substantially the reasons stated in the well-

reasoned report by the magistrate judge dated May 22, 1997, and the district

court's order adopting this report, we conclude Mr. Berrien has failed to make a

“‘substantial showing of the denial of [a] federal right’” by demonstrating the

issue is “‘debatable among jurists,’” or that another court could resolve the issue

differently, or that the question deserves further proceedings. Barefoot v. Estelle,

463 U.S. 880, 893 n.4 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th

Cir. 1971), cert. denied, 406 U.S. 925 (1972)); see also Lennox v. Evans, 87 F.3d


                                           -3-
431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled on other

grounds by United States v. Kunzman, 125 F.3d 1363 (10th Cir. 1997), cert.

denied, 118 S. Ct. 1375 (1998). Consequently, we DENY his application for a

certificate of probable cause, and DISMISS this appeal.


                                      Entered by the Court:


                                      WADE BRORBY
                                      United States Circuit Judge




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