                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 20 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 ORLANDO F. RODRIGUEZ,

          Petitioner-Appellant,

 v.                                                    No. 97-2239
                                                (D.C. No. CIV-96-1599-LH)
 SAN JUAN MAGISTRATE COURT;                             (D. N.M.)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. 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        This order and judgment is not binding precedent except under the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.
      Mr. Orlando Rodriguez, appearing     pro se, appeals the district court's order

dismissing his petition for writ of habeas corpus, and the district court's

subsequent denial of his application for a certificate of appealability.



      At the time Mr. Rodriguez filed his original petition, he was incarcerated in

the San Juan County Jail pursuant to an order finding him in contempt of court for

failure to appear for trial on criminal charges. During the pendency of that

action, Mr. Rodriguez was convicted of resisting an officer and misdemeanor

aggravated battery and began serving sentences imposed for those convictions.



      Mr. Rodriguez raised six claims in his petition: (1) "The judicial process in

the State of New Mexico is corrupt and [he] is unable to enforce in any state court

federal laws providing for his equal civil rights."; (2) "There is no lawful San

Juan County District Attorney" to prosecute his cases; (3) he was "unlawfully

arrested"; (4) he was "unlawfully incarcerated"; (5) he was "denied provisions of

the 'Duran Consent Decree' while incarcerated"; and (6) "Public funds, both state

and federal, were spent unlawfully to deny [him] the means to enforce in state

courts federal laws providing for his equal rights or those rights afforded to

others." The magistrate judge assigned to the case determined Mr. Rodriguez had

not exhausted his state remedies and recommended the petition be dismissed


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without prejudice.



       After a de novo review of the record, including Mr. Rodriguez' written

objections to the magistrate judge's findings and proposed disposition, the district

court adopted the magistrate judge's findings and recommendation and dismissed

Mr. Rodriguez' action, without prejudice. Mr. Rodriguez then filed a notice of

appeal, but was denied a certificate of appealability when the district court

determined there was no substantial issue of law for our review.



       An appeal cannot be taken to this court in a 28 U.S.C. § 2254 proceeding

unless the petitioner has obtained a certificate of appealability by making a

substantial showing of the denial of a constitutional right.     See 28 U.S.C.

§ 2253(c). Our review of Mr. Rodriguez' opening brief and the entire court

record does not disclose any showing of the denial of a constitutional right.

While Mr. Rodriguez raises many serious charges, he fails to demonstrate that the

magistrate judge erred in concluding he had not exhausted his state court

remedies. When the district court entered its order of dismissal, Mr. Rodriguez

had not exhausted his state court remedies as required by law.      See generally Rose

v. Lundy , 455 U.S. 509 (1982). Therefore, as a matter of law, we are unable to

consider his petition.


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     Mr. Rodriguez' request for a certificate of appealability is DENIED. The

appeal is DISMISSED .



                                    Entered for the Court


                                    WADE BRORBY
                                    United States Circuit Judge




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