                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 11 1998
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JOE ANGEL DUARTE,

                Petitioner-Appellant,

    v.                                                   No. 97-2290
                                                   (D.C. No. CIV-97-228-JC)
    RONALD LYTLE, Warden;                                 (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                             ORDER AND JUDGMENT *



Before PORFILIO, BARRETT, and HENRY, Circuit Judges.



         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(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      This order and judgment is not binding precedent, except under the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.
      Petitioner seeks a certificate of appealability, see 28 U.S.C. § 2253(c),

that would enable him to appeal the district court’s denial of habeas relief,

see 28 U.S.C. § 2254, from his New Mexico convictions for voluntary

manslaughter and conspiracy to tamper with evidence. His seven grounds for

habeas relief essentially challenge 1) the trial court’s failure to give a jury

instruction on the use of deadly force in defense of another; 2) the trial court’s

determination that petitioner was competent to stand trial; and 3) the validity of

petitioner’s prior convictions used to enhance his sentence.

      In order to obtain a certificate of appealability, petitioner must make

a substantial showing of the denial of a federal right. See Nguyen v. Reynolds,

131 F.3d 1340, 1345 (10th Cir. 1997). Upon careful consideration of the record

and the parties’ arguments, we DENY petitioner’s application for a certificate

of appealability for substantially the reasons stated by the magistrate judge in his

report and recommendation, dated July 23, 1997, and adopted by the district court

on August 19, 1997.

      The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge

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