                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUN 23 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ELIJAH CHARLES ANDERSON,

          Petitioner-Appellant,
 v.
                                                       No. 97-2368
                                                (D.C. No. CIV-96-1367-SC)
 TIM LEMASTER, Warden, and
                                                     (D. New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Elijah Charles Anderson (“Anderson”) appeals the denial of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254.

      Anderson was convicted in New Mexico state court of first-degree murder

and robbery and was found to be a habitual offender. (R. Vol. 2, #13, Ex. A.) He



      *
       After examining appellant’s brief and the 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(f) and 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Judgment is not binding precedent, except under the doctrines of law of the case,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.
was sentenced to life imprisonment for the murder, plus consecutive sentences of

three years for the robbery and eight years for being a habitual offender. (Id.)

After exhausting his state remedies, Anderson filed a petition for a writ of habeas

corpus in which he raised seven claims. 1 (R. Vol. I #1; R. Vol. I #14 at 2.) Based

on two reports and recommendations by a magistrate judge, the district court

dismissed Anderson’s petition with prejudice. (R. Vol. I #23, #28.) It denied his

application for a certificate of appealability. (R. Vol. I #31.)

       On appeal, Anderson requests that we issue a certificate of appealability

and raises four issues. Three issues are procedural – he contends that the district

court erred in dismissing his petition without allowing discovery, without

appointing counsel for Anderson, and without conducting an evidentiary hearing.

The fourth issue appears to concern the merits of the claims he presented to the

district court.




       1
         Specifically, Anderson alleged: (1) his conviction was obtained in
violation of his right against self-incrimination; (2) New Mexico’s felony murder
statute creates a presumption of mens rea; (3) he was denied due process when the
trial court admitted census data over his objection; (4) he was denied due process
when the trial court refused to instruct the jury on larceny as a lesser included
offense of robbery; (5) the evidence was insufficient to support the verdict; (6) he
suffered ineffective assistance of trial counsel; and (7) the prosecutors committed
misconduct. (R. Vol. I #1; R. Vol. I #14 at 2.)

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      We do not find that Anderson has made a substantial showing of the denial

of a constitutional right. See 28 U.S.C. § 2253(c). Therefore, we deny a

certificate of appealability and DISMISS the appeal.



      The mandate shall issue forthwith.

                                      ENTERED FOR THE COURT



                                      David M. Ebel
                                      Circuit Judge




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