                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 22 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    SAUL ALVARADO,

                Petitioner-Appellant,

    v.                                                   No. 00-6042
                                                   (D.C. No. 99-CV-148-W)
    MARTY SIRMONS,                                       (W.D. Okla.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , 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      This order and judgment is not binding precedent, except under the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-appellant Saul Alvarado, a state inmate appearing pro se, seeks a

certificate of appealability to challenge the district court’s order denying his

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

the request for a certificate of appealability and dismiss the appeal.

      Mr. Alvarado entered a guilty plea to charges of possessing a controlled

dangerous substance with intent to distribute. He attempted to withdraw his

guilty plea and to appeal various alleged errors to the state court of appeals.

After his appeals were denied on procedural grounds, Mr. Alvarado filed his

habeas petition.

      A federal magistrate judge was assigned to consider Mr. Alvarado’s claims.

In a detailed and thorough report and recommendation, the magistrate judge

determined that the habeas petition should be dismissed for procedural default,

see Coleman v. Thompson , 501 U.S. 722, 750 (1991), and, in the alternative, the

petition should be denied on the merits. Mr. Alvarado attempted an untimely

amendment to his habeas petition in the district court. The magistrate judge

found that those claims were filed too late, but nevertheless considered their

merits, and held that those claims also did not support habeas relief. After a de

novo review, the district court adopted the recommendations of the magistrate

judge and denied relief.




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       On appeal, Mr. Alvarado raises the same claims presented in his habeas

petition and addressed by the magistrate judge and the district court. They are:

(1) his petition was not subject to procedural default because he showed the

required cause and prejudice, (2) the state court failed to advise him of his right

to appeal, (3) the evidence was insufficient, (4) he should have been charged

under a different state statute, (5) the plea agreement was breached, and (6) his

counsel provided ineffective assistance.

       “In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo,” keeping in mind that “our review of the state court’s

proceedings is quite limited.”     Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir.

1999), cert. denied , 528 U.S. 1120 (2000).

       We have carefully reviewed the record on appeal, as well as the brief and

materials submitted by Mr. Alvarado. Applying the applicable law, we conclude

that Mr. Alvarado has failed to make a substantial showing of the denial of a

constitutional right as required under 28 U.S.C. § 2253(c)(2) for a certificate of

appealability.

       Petitioner’s motion to amend the habeas petition, filed with this court after

his appellate brief was filed, is denied.   See 28 U.S.C. § 2242 (amendment of

habeas petition governed by rules of civil procedure); Fed. R. Civ. P. 15(a)


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(requiring leave of court to amend after responsive pleading filed in district

court); Walker v. Mather (In re Walker)   , 959 F.2d 894, 896 (10th Cir. 1992)

(appellate court will not consider issues not presented to district court).

      Accordingly, for substantially the same reasons stated in the district court’s

January 12, 2000 order, and the magistrate judge’s September 20, 1999 report and

recommendation, we deny Mr. Alvarado’s motion for a certificate of

appealability, deny his motion to amend the habeas petition, and DISMISS his

appeal. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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