111 F3d 140 Davis v. Jones

111 F.3d 140

97 CJ C.A.R. 619

Gilbert Dean DAVIS, Petitioner-Appellant,
v.
Justine JONES, Respondent-Appellee.

No. 96-6152.
(D.C.No. CIV-95-1845-W)

United States Court of Appeals, Tenth Circuit.

April 22, 1997.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

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


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1

ORDER AND JUDGMENT*

2

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

3

This matter is before the court on Petitioner Gilbert Dean Davis' application for a certificate of appealability to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Because Mr. Davis has not made a "substantial showing of the denial of a constitutional right," and this petition constitutes an abuse of the writ, we deny his application and dismiss the appeal. See Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253(c)(2).

4

Mr. Davis filed a petition for a writ of habeas corpus with the district court contending that he was denied his Sixth Amendment right to effective assistance of counsel and his due process right to a post-examination competency hearing. The magistrate judge reviewed Mr. Davis' petition and recommended that it be dismissed for abuse of the writ. See Rules Governing Section 2254 Cases 9(b). The district court agreed with the magistrate judge and dismissed Mr. Davis' petition April 15, 1996.

5

We have reviewed the magistrate judge's report and recommendation, the district court's order, Petitioner's application for a certificate of appealability, and the record before us. We conclude that Petitioner has failed to make a substantial showing of a denial of a constitutional right for substantially the reasons set forth in the report and recommendation of March 18, 1996. Accordingly, we DENY Petitioner's application for a certificate of appealability and DISMISS the appeal.

*

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