                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 3 2003
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JONATHAN BRADY,

                Petitioner - Appellant,

    v.                                                    No. 02-2036
                                                 D.C. No. CIV-00-656-LH/WWD
    TIM LEMASTER, Warden,                              (D. New Mexico)
    New Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents - Appellees.


                                ORDER AND JUDGMENT         *




Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.



         After examining appellant’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)(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      This order and judgment is not binding precedent, except under the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.
         Jonathan Brady, a New Mexico prisoner, requests a certificate of

appealability (COA) to appeal the district court’s denial of his petition for habeas

corpus filed under 28 U.S.C. § 2254. A COA may be issued only when there is

“a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To demonstrate his entitlement to a COA, Mr. Brady must show

“that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.”        Slack v.

McDaniel , 529 U.S. 473, 483-84 (2000) (quotation omitted).

         On appeal, Mr. Brady argues that the district court erred in failing to

require the State of New Mexico’s Department of Corrections to implement

a statutorily mandated alternative incarceration program under N.M. Stat. Ann.

§ 31-18-22, under which appellant was constitutionally entitled to apply for relief.

         We have reviewed appellant’s brief and appendix. We find no error, and

affirm for the reasons stated by the magistrate judge, as adopted by the district

court.




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     Appellant’s application for a certificate of appealability is DENIED and the

appeal is DISMISSED.


                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




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