F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 21 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

GARY REYNOLDS,

Petitioner-Appellant,

v. No. 98-2181 (D.C. No. CIV 94-1157 M/LFG) JOE WILLIAMS, Warden; (D. N.M.) ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

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); 10th Cir. R. 34.1(G). 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Gary Reynolds seeks to appeal from the district court’s order

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

§ 2254, and dismissing the action with prejudice. The district court also denied

petitioner a certificate of appealability. 1

After review of petitioner’s brief and the record on appeal, we conclude

that petitioner has not made “a substantial showing of the denial of [a] federal

right.” Barefoot v. Estelle , 463 U.S. 880, 893 (1983) (further quotation omitted).

Therefore, we deny petitioner’s request for a certificate of probable cause, and

dismiss the appeal.

Entered for the Court

James E. Barrett Senior Circuit Judge

1 Although the magistrate judge’s report correctly noted that the Antiterrorism and Effective Death Penalty Act (AEDPA) did not apply to petitioner’s case because it was filed before the effective date of that act, the district court nonetheless used the “certificate of appealability” language arising out of AEDPA. See Rec. Vol. I, tab 53; 28 U.S.C. §2253(c). We construe petitioner’s notice of appeal as a request for a certificate of probable cause under pre-AEDPA standards. See Fed. R. App. P. 22(b) (prior to amendment by AEDPA).

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