Setliff v. Cody ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 30 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEWIS LAVERN SETLIFF,
Petitioner - Appellant,
No. 97-6144
v.
(D.C. No. 95-CV-962)
(Western District of Oklahoma)
R. MICHAEL CODY,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK and LUCERO, Circuit Judges.
Petitioner Lewis Lavern Setliff seeks leave to appeal from the district
court’s decision adopting the magistrate judge’s report and recommendation and
dismissing Mr. Setliff’s petition for a writ of habeas corpus under 28 U.S.C. §
2254. We construe petitioner’s application for a certificate of appealability as
one for a certificate of probable cause to appeal. 1
*
The case is unanimously ordered submitted without oral argument pursuant to Fed. R.
App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except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.
The Supreme Court, in Lindh v. Murphy, 117 S.Ct. 2059, 2068 (1997), holds that the
1
new provisions of 28 U.S.C., ch. 153, which includes the § 2253(c) certificate of appealability
(continued...)
In Barefoot v. Estelle, 463 U.S. 880 (1983), the Supreme Court held that “a
certificate of probable cause requires petitioner to make a substantial showing of
the denial of a federal right.” 463 U.S. at 893 (citations omitted). This requires
that the petitioner demonstrate that the issues presented are debatable among
jurists of reason, that a court could resolve the issues differently or that the
questions deserve further proceedings. See id. at 893 n.4. After careful
examination of petitioner’s application, the district court’s order and the
magistrate judge’s report and recommendation, we conclude that Mr. Setliff has
failed to make the required showing. Consequently, petitioner’s request for a
certificate of probable cause is DENIED and the appeal is DISMISSED. The
mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
1
(...continued)
requirement, added by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), are
generally not applicable to cases filed before AEDPA’s effective date, April 24, 1996. See
United States v. Kunzman, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997) (en
banc). This circuit has therefore held that § 2254 petitioners who filed their petitions in district
court prior to the effective date of AEDPA, as in this case, do not need a certificate of
appealability. Id. Petitioner, however, is subject to § 2253's previous requirement that he obtain
a certificate of probable cause to appeal. 28 U.S.C. § 2253 (1994) (amended 1996).
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