Reynolds v. Hannigan ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
AUG 27 1999
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
DONALD FORD REYNOLDS,
Petitioner-Appellant,
v. No. 99-3191
ROBERT D. HANNIGAN, Warden, (D.C. No. 85-CV-3559-DES)
Hutchinson Correctional Facility; (D. Kan.)
ATTORNEY GENERAL OF THE
STATE OF KANSAS,
Respondents-Appellees.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BALDOCK, and HENRY, Circuit Judges.**
Petitioner Donald Ford Reynolds was convicted in Oklahoma state court on two
counts of indecent liberties with a child. Because he previously had been convicted of
lewd molestation in Oklahoma, Petitioner received an enhanced sentence of twenty to
*
This order and judgment is not binding precedent, except under the doctrines of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.
**
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)(C); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
eighty years imprisonment. After unsuccessfully exhausting his state court remedies,
Petitioner filed a § 2254 petition for a writ of habeas corpus in the federal district court
alleging numerous instances of ineffective assistance of trial counsel. In a thorough
report and recommendation, a magistrate judge recommended that the petition be denied.
Following a de novo review, the district court in a memorandum opinion and order
adopted the magistrate judge’s recommendation and denied the petition. The district
court declined to grant Petitioner’s application for a certificate of probable cause to
appeal. His renewed application is before us.1
In order to obtain a certificate of probable cause to appeal the denial of a § 2254
petition, a petitioner must make a “substantial showing of the denial of a federal right.”
Barefoot v. Estelle, 463 U.S. 880, 893 (1983). We have thoroughly reviewed Petitioner’s
application for a certificate of probable cause, his brief, the magistrate judge’s report and
recommendation, the district court’s memorandum opinion and order, and the entire
record before us. We conclude that Petitioner has failed to make a substantial showing of
the denial of a constitutional right substantially for the reasons set forth in the magistrate
judge’s report and recommendation and the district court’s memorandum opinion and
1
Because Petitioner filed his § 2254 petition in the district court in December
1995, before the effective date of the Antiterrorism and Effective Death Penalty Act of
1996, Pub. L No. 104-132, 110 Stat. 1214 (effective April 24, 1996) (AEDPA), Petitioner
must obtain a pre-AEDPA certificate of probable cause in order to appeal the district
court’s denial of his petition. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2
(10th Cir. 1997).
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order. Accordingly, we deny Petitioner’s application for a certificate of probable cause
and dismiss the appeal.
CERTIFICATE OF PROBABLE CAUSE DENIED; APPEAL DISMISSED.
Entered for the Court,
Bobby R. Baldock
Circuit Judge
3