Trundy v. Magnusson ( 1992 )

USCA1 Opinion

          June 4, 1992          [NOT FOR PUBLICATION]










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          No. 92-1063

            


                                    EUGENE TRUNDY,

                                Plaintiff, Appellant,

                                          v.

                                  MARTIN MAGNUSSON,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ___________________

               Eugene  Trundy  pro se  on  Application  for Certificate  of
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          Probable Cause.



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                 Per Curiam.  Petitioner Eugene Trundy was convicted upon
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            pleading nolo  contendere to  four counts of  unlawful sexual
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            contact with minor children.  He was sentenced to the maximum

            possible: twenty  years.    After  pursuing  an  unsuccessful

            appeal of this sentence and a similarly unsuccessful petition

            for postconviction relief, Trundy filed a petition for a writ

            of habeas  corpus  in  federal court.    The  district  court

            dismissed  the petition and denied the writ.  Trundy seeks to

            appeal this  decision.  However, the  district court declined

            to  issue a  certificate of  probable cause.   We  thus treat

            Trundy's notice of appeal  as a request for a  certificate of

            probable cause.  See 28 U.S.C.  2253, Fed. R. App. P. 22 (b).
                             ___



                 Petitioner  has filed  a memorandum  in support  of this

            request in accordance  with Local  Rule 22.   To justify  the

            issuance  of a  certificate of  probable cause,  a petitioner

            must  make  a  "'substantial  showing of  the  denial  of [a]

            federal right.'"   Barefoot  v. Estelle,  463  U.S. 880,  893
                               ________     _______

            (1983)(quoting Stewart v.  Beto, 454 F.2d  268, 270 n.2  (5th
                           _______     ____

            Cir.  1971), cert. denied, 406  U.S. 925 (1972)).   While the
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            petitioner  need not  show  that "he  should  prevail on  the

            merits ... he must demonstrate that the issues are  debatable

            among  jurists of  reason;  that a  court  could resolve  the
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            issues [in  a different manner];  or that  the questions  are





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            'adequate to deserve encouragement to proceed further.'"  Id.
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            at n.4 (citations omitted).

                  We have  reviewed the petitioner's  memorandum and  his

            supplemental filings  and the record of  the district court.1

            We fail to discern any "detail, amplification, or explanation

            of conceivably appropriate grounds for appeal ... ."   Hachey
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            v.  State of  Maine, 453  F.2d 369,  370 (1st  Cir. 1972)(per
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            curiam).    The petitioner  has failed to  make the threshold

            showing required  to justify the issuance of a certificate of

            probable cause.   Accordingly, the request  for a certificate

            of probable cause is denied and the appeal is terminated.   

             























                                
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            1.  We  have also  reviewed  the record  of the  petitioner's
            state postconviction proceeding, the transcript of his change
            of plea hearing, and the sentencing hearing. 

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