                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JAN 14 1999
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 RICHARD L. LARSON,

          Petitioner-Appellant,
 v.
                                                         No. 98-2177
                                               (D.C. No. CV 96-434 HB/LCS)
 DONALD A. DORSEY, Warden, and
                                                  (District of New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      Petitioner Richard L. Larson appeals the district court’s dismissal of his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We

previously stated that

       “[a]lthough Larson’s petition is far from a model of clarity, it
      appears to assert the following as grounds for granting habeas relief:


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      (1) he was denied his right to due process during the process of
      reaching the letter agreement because the magistrate did not follow
      state statutes; (2) the letter agreement constituted punishment and the
      magistrate judge lacked subject matter jurisdiction to punish him; (3)
      his subsequent arrest for the same conduct that formed the basis of
      the letter agreement violated the letter agreement and was, therefore,
      illegal; (4) his subsequent punishment for the acts underlying the
      letter agreement constituted double jeopardy; and (5) his counsel was
      ineffective for failing to raise the issues set out above.”

Larson v. Dorsey, No. 97-2215, at 3-4 (10th Cir. Jan. 29, 1998) (slip op.).

      Although Larson admits that he filed two prior federal petitions seeking

habeas corpus relief, he argues that this is his first habeas petition directed to the

judgment of the New Mexico state magistrate court which he claims played some

part in the process leading to the letter agreement. He asserts that his first two

federal habeas petitions sought relief from the judgment of the New Mexico state

district court in which he was ultimately convicted and sentenced. Accordingly,

he claims that his present petition is effectively a first petition and is not subject

to dismissal based on the doctrine of abuse of the writ. We reject this argument.

      While Larson challenges the activities of the state magistrate judge

regarding proceedings prior to the district court proceeding that led to his

confinement, we have held previously that “[t]his challenge is clearly directed at a

state court judgment pursuant to which Larson is in custody [the state district

court judgment].” Larson, No. 97-2215, at 6. Larson’s claims directed at the

actions of the state magistrate judge are properly reviewed through a challenge to


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the judgment of the state district court. Cf. Collins v. Hesse, 957 F.2d 746,748

(10th Cir. 1992) (“[B]ecause Collins was allegedly incarcerated on an enhanced

sentence it was appropriate to construe his habeas action as challenging his

present confinement even though the essence of his attack was the alleged

unconstitutionality of the prior predicate convictions.”). Larson filed two prior

federal habeas petitions, but has never asserted the claims presented in this, his

third, petition, nor has he demonstrated cause and prejudice or that a fundamental

miscarriage of justice would occur if the claims are not considered. See

McCleskey v. Zant, 499 U.S. 467, 492-94 (1991).

      The district court held that Larson’s present petition is barred by the abuse-

of-the-writ doctrine. We agree and accordingly we deny his motion for a

certificate of probable cause. 1

      The mandate shall issue forthwith.

                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      1
       Larson actually filed a motion for a certificate of appealability, however,
because his petition for habeas corpus relief was filed on April 1, 1996, the
provisions of the Antiterrorism and Effective Death Penalty Act do not apply. We
consider his motion as a request for a certificate of probable cause and reject that
motion.

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