Marsh v. Newton ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 17 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SANDRA MARSH,
Petitioner-Appellant,
v. No. 99-2284
(D.C. No. CIV-95-360-JC/LFG)
TOM NEWTON, Warden; (D. N.M.)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY , ANDERSON , and MURPHY , 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)(2); 10th Cir. R. 34.1(G). 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This order and judgment is not binding precedent, except under the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-Appellant Sandra Marsh appeals from the district court’s order
denying her petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Appellant was convicted in state court of conspiracy to traffic in a controlled
substance and trafficking in a controlled substance. After exhausting her state
remedies, she brought this petition in federal district court. A federal magistrate
judge recommended that her petition be denied, and his recommendation was
adopted by the district court.
This matter comes before us on appellant’s request for a certificate of
appealability (COA). 1
Appellant requires a COA to proceed on appeal, and we
may issue one only if she has “made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, an
applicant must show that her petition “raises[es] issues that are debatable among
jurists, or that a court could resolve the issues differently, or that the questions
deserve further proceedings.” United States v. Sistrunk , 111 F.3d 91, 91 (10th
Cir. 1997).
Appellant raises the following issues: (1) the state’s failure to disclose the
existence of taped conversations prior to trial violated her right to due process;
1
Appellant requested a certificate of probable cause. Although this case was
filed in district court prior to the effective date of the AEDPA amendments to
§ 2253, this appeal was filed afterwards and she therefore requires a COA to
proceed on appeal. See Slack v. McDaniel , 120 S. Ct. 1595, 1602-03 (2000).
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(2) the state court’s failure to declare a mistrial based on the undisclosed tapes
chilled her right to testify in her own behalf and otherwise violated her
constitutional rights; (3) she received ineffective assistance of counsel at trial; (4)
there was not sufficient evidence to support her convictions; and (5) she received
ineffective assistance of counsel at sentencing. Having carefully reviewed
appellant’s brief, the record, and the applicable law, we conclude that she has
failed to make a substantial showing of the violation of a constitutional right.
Accordingly, her request for a COA is DENIED, and this appeal is DISMISSED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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