F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 10 1997 TENTH CIRCUIT PATRICK FISHER Clerk

FRANCISCO MONTANO,

Petitioner-Appellant,

v. No. 97-3091 (District of Kansas) JAY SHELTON, Warden and (D.C. No. 93-CV-3523) ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel

has unanimously determined that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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. Francisco Montano, appearing pro se, appeals the district court’s denial of

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.

Montano claims that he is entitled to a writ of habeas corpus on the following

grounds: (1) the trial court erred in allowing Montano to be cross examined in

English when his primary language is Spanish; (2) the state obtained evidence

through statements Montano made to police and through a warrantless search of

Montano’s home based on unlawful waivers of Montano’s rights. 1 In denying

Montano’s petition, the district court concluded as follows: (1) Montano failed to

establish that the trial court rendered his trial fundamentally unfair when it

allowed Montano to be cross examined in English because “the trial evidence and

[Montano’s] cross examination testimony fully demonstrated [Montano’s]

working understanding and use of English, and . . . [Montano] fail[ed] to identify

how the outcome of his trial would have been altered if his cross examination had

not been conducted in English with an interpreter available for assistance; and (2)

the state court made factual findings, which are presumed correct and may only be

set aside if not fairly supported by the record, that Montano sufficiently

1 Montano also asserted the following two claims before the district court: (1) prosecutorial misconduct during the State’s closing argument denied him a fair trial; and (2) the trial judge erred in failing to instruct the jury on voluntary intoxication. Montano has, however, affirmatively waived appellate review of these issues by failing to raise or brief these issues in either his application for a certificate of appealability or his brief on appeal.

-2- understood the Miranda warnings and the consent form for the search. Montano

appeals. This court exercises jurisdiction pursuant to 28 U.S.C. § 2253 (1994)

and 28 U.S.C. § 1291 and affirms. 2

This court has reviewed de novo Montano’s brief, the district court’s order,

and the entire record on appeal. Based on that review, we affirm for substantially

the reasons set out in the district court’s well-reasoned Memorandum and Order

dated March 25, 1997.

The judgment of the United States District Court for the District of Kansas

is hereby AFFIRMED.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge

2 The Supreme Court recently held that the provisions of Chapter 153 of Title 28 of the United States Code, including § 2253(c) of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), are generally not retroactive. See Lindh v. Murphy, 117 S. Ct. 2059, 2068 (1997). Because Montano’s case was pending on the AEDPA’s effective date, he is not subject to the AEDPA, but is instead subject to§ 2253's previous requirement that he obtain a certificate of probable cause. We grant the certificate of probable cause and proceed to the merits of this case.

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