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JAN 22 2001
PATRICK FISHER
Clerk
SAUL ALVARADO,
Petitioner-Appellant,
No. 00-6042
(D.C. No. 99-CV-148-W)
(W.D. Okla.)
v.
MARTY SIRMONS,
Respondent-Appellee.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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.
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On appeal, Mr. Alvarado raises the same claims presented in his habeas
petition and addressed by the magistrate judge and the district court. They are:
(1) his petition was not subject to procedural default because he showed the
required cause and prejudice, (2) the state court failed to advise him of his right
to appeal, (3) the evidence was insufficient, (4) he should have been charged
under a different state statute, (5) the plea agreement was breached, and (6) his
counsel provided ineffective assistance.
In reviewing the denial of a habeas corpus petition, we review the district
courts factual findings under a clearly erroneous standard, and its legal
conclusions de novo, keeping in mind that our review of the state courts
proceedings is quite limited.
(appellate court will not consider issues not presented to district court).
Accordingly, for substantially the same reasons stated in the district courts
January 12, 2000 order, and the magistrate judges September 20, 1999 report and
recommendation, we deny Mr. Alvarados motion for a certificate of
appealability, deny his motion to amend the habeas petition, and DISMISS his
appeal. The mandate shall issue forthwith.
Bobby R. Baldock
Circuit Judge
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