                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 21 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    GARY REYNOLDS,

                Petitioner-Appellant,

    v.                                                   No. 98-2181
                                                (D.C. No. CIV 94-1157 M/LFG)
    JOE WILLIAMS, Warden;                                  (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before TACHA , BARRETT , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner Gary Reynolds seeks to appeal from the     district court’s order

denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C.

§ 2254, and dismissing the action with prejudice. The      district court also denied

petitioner a certificate of appealability.   1



       After review of petitioner’s brief and the record on appeal, we conclude

that petitioner has not made “a substantial showing of the denial of [a] federal

right.” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (further quotation omitted).

Therefore, we deny petitioner’s request for a certificate of probable cause, and

dismiss the appeal.

                                                        Entered for the Court



                                                        James E. Barrett
                                                        Senior Circuit Judge




1
       Although the magistrate judge’s report correctly noted that the
Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply to
petitioner’s case because it was filed before the effective date of that act, the
district court nonetheless used the “certificate of appealability” language arising
out of AEDPA. See Rec. Vol. I, tab 53; 28 U.S.C. §2253(c). We construe
petitioner’s notice of appeal as a request for a certificate of probable cause under
pre-AEDPA standards. See Fed. R. App. P. 22(b) (prior to amendment by
AEDPA).

                                                 -2-
