Zurla v. Lemaster

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 22 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VINCENT JAMES ZURLA,
Petitioner-Appellant,
v. No. 98-2008
(D.C. No. CIV-97-841-JP/LFG)
TIM LEMASTER, Warden; (D. N.M.)
ATTORNEY GENERAL STATE
OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
After examining petitioner’s brief and the 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.
*
This order and judgment is not binding precedent, except under the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, a prisoner of the State of New Mexico appearing pro se, appeals
from the district court’s denial of his petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254. The district court also denied a certificate of
appealability.
Before petitioner may proceed on appeal, he must secure a certificate of
appealability from this court. See id. § 2253(c)(1)(A). Raising the same issues
he raised in the district court, petitioner argues that this court should grant a
certificate of appealability because: (1) the State’s failure to file an amended
supplemental information charging him as a habitual offender deprived him of
due process; (2) the State violated the plea agreement by failing to give him the
benefit of one less habitual offender enhancement; (3) the eight-and-one-half
months’ delay between his probation violation arraignment and the probation
violation hearing violated due process; and (4) his counsel at the probation
violation hearing was ineffective because counsel failed to preserve issues for
appeal and failed to properly prepare for the probation violation hearing.
Upon consideration of the record and petitioner’s brief, we conclude
petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). We DENY petitioner’s request for a
certificate of appealability for substantially the reasons stated by the magistrate
judge in his findings and recommended disposition filed September 12, 1997, and
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adopted by the district court on December 23, 1997. The appeal is DISMISSED.
The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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