                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAR 9 1998
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


JOHN HERRERA,

             Petitioner-Appellant,

v.
                                                       No. 97-2325
                                                  (Dist. of New Mexico)
TIM LEMASTER, Warden, New
                                                (D.C. No. CIV-97-737-LH)
Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

             Respondents-Appellees.




                          ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th




      *
       This order and judgment is not binding precedent, except under the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.
Cir. R. 34.1.9. Petitioner’ request to submit the case on the briefs is granted, and

the case is ordered submitted without oral argument.

       John Herrera, proceeding     pro se and in forma pauperis , seeks a certificate

of appealability to appeal the district court’s denial of habeas corpus petition

brought pursuant to 28 U.S.C. § 2254.       See 28 U.S.C. § 2253(c)(1)(A) (providing

that “[u]nless a circuit justice or judge issues a certificate of appealability, an

appeal may not be taken to the court of appeals from the final order in a habeas

corpus proceeding in which the detention complained of arises out of process

issued by a state court”). Because Herrera has failed to make “a substantial

showing of the denial of a constitutional right,” we deny Herrera’s request for a

certificate of appealability and dismiss the appeal.   See id . § 2253(c)(2)

(certificate of appealability will issue only upon substantial showing of denial of

constitutional right);   Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (holding that a

petitioner can make a substantial showing of the denial of constitutional right by

demonstrating that the issues raised are debatable among jurists, that a court

could resolve the issues differently, or that the questions deserve further

proceedings).

       Upon de novo review of Herrera’s application for a certificate of

appealability and brief, the magistrate judge’s Report and Recommendation, and

the entire record on appeal, this court concludes that Herrera has failed to


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demonstrate that the district court’s resolution of his petition is debatable or is

reasonably subject to a different outcome on appeal to this court. This same

review leads us to conclude that none of the issues raised by Herrera are

deserving of further proceedings. Because Herrera has not made a substantial

showing of the denial of a constitutional right, this court      DECLINES Herrera’s

request for a certificate of appealability and         DISMISSES this appeal.

                                           ENTERED FOR THE COURT



                                           Michael R. Murphy
                                           Circuit Judge




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