120 F.3d 270
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Robert Samuel CHAPPELL, Petitioner-Appellant,v.John SHANKS, Warden;  Attorney General of the State of NewMexico, Respondents-Appellees.
No. 96-2236.
United States Court of Appeals, Tenth Circuit.
July 29, 1997.

Before SEYMOUR, Chief Judge;  PORFILIO and MURPHY, Circuit Judges.

ORDER

1
Robert Samuel Chappell, a state prisoner, seeks to appeal the denial of his petition for a writ of habeas corpus as an abuse of the writ.  The matter is pending before us on an application for a certificate of appealability.  We have examined Mr. Chappell's brief and the record, including the magistrate judge's amended proposed recommendation and conclude no error was committed.


2
Principally for the reasons given in the recommendations of the magistrate judge, we hold Mr. Chappell has failed to demonstrate the denial of a constitutional right by showing the issues raised in his appeal are debatable among jurists;  that a court could resolve the issues differently;  or that the questions deserve further proceedings.  The certificate of appealability is DENIED and the appeal is DISMISSED.  28 U.S.C. § 2253(c)(2);  Lennox v. Evans, 87 F.3d 431 (10th Cir.1996).  The motion for leave to proceed without payment of fees is GRANTED.

