Alexander Thomas Archibeque v. Mark McGoff Superintendent Acc Aristedes Zavaras, Executive Director, D.O.C. Gale A. Norton, Colorado Attorney General , 57 F.3d 1080 ( 1995 )

57 F.3d 1080
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Alexander Thomas ARCHIBEQUE, Petitioner-Appellant,
v.
Mark McGOFF, Superintendent ACC; Aristedes Zavaras,
Executive Director, D.O.C.; Gale A. Norton,
Colorado Attorney General, Respondents-Appellees.

No. 94-1480.

United States Court of Appeals, Tenth Circuit.

June 14, 1995.

Before TACHA, LOGAN and KELLY, Circuit Judges.

ORDER AND JUDGMENT1

LOGAN

1

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.

2

This matter is before the court on petitioner Alexander Thomas Archibeque's application for a certificate of probable cause. The right of a petitioner convicted of a state crime to appeal a federal district court's denial of habeas corpus relief is conditioned upon either the district court or this court granting a certificate of probable cause. See 28 U.S.C. 2253.

3

The Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), declared that the "primary means of separating meritorious from frivolous [habeas corpus] appeals should be the decision to grant or withhold a certificate of probable cause." We will not grant such a certificate unless the petitioner makes "a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings." Gallagher v. Hannigan, 24 F.3d 68 (10th Cir.1994) (citing Barefoot, 463 U.S. at 893 & n. 4).

4

Petitioner asserted his state court convictions were based in part on evidence obtained in violation of his Fourth Amendment rights, and that the law enforcement officers who arrested him were outside of the county of their jurisdiction. The magistrate judge correctly analyzed the facts and law in his Recommendation of September 1, 1994, which was adopted by the district court.

5

We conclude that petitioner has failed to make the necessary showing to warrant our issuance of a certificate of probable cause. Therefore, we deny his application and DISMISS the appeal.

6

The mandate shall issue forthwith.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470