Jacobs v. Ulibarri , 191 F. App'x 786 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 15, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
SHAW N LOUIS JACOBS,
Petitioner-Appellant, No. 06-2130
v. (D.C. No. CIV-05-1183 BB/W PL)
ROBERT ULIBARRI, W arden, (D . New M ex.)
Southern New M exico Correctional
Facility; A TTO RN EY G EN ER AL
FO R TH E STA TE O F N EW M EXICO,
Respondents-Appellees.
OR DER
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Appellant is a state prisoner, appearing pro se, who seeks habeas relief
pursuant to 28 U.S.C. § 2254. On February 21, 1992, Appellant entered a no-
contest plea to the felony offense of receiving stolen property. The state court
gave him an eighteen-month suspended sentence. On July 29, 1992, Appellant
pleaded guilty to possession of a firearm by a felon, receiving stolen property,
and conspiracy to commit forgery. He was sentenced to a total of three years’
imprisonment for these offenses. His earlier eighteen-month sentence was set to
run concurrently with his three-year sentence for the later convictions.
In October 1994, Appellant was released from prison. Three days later he
killed a high school student. In 1996, he was convicted of murder, kidnaping,
attempted sexual penetration, and several related offenses. He was sentenced to
life imprisonment plus 69.5 years. Appellant has filed several appeals and
petitions in both state and federal court.
He appeals to this court challenging his 1996 sentence on the ground that
his 1992 convictions were invalid. Appellant has argued previously in related,
nevertheless distinct, petitions that he was not a felon when he allegedly
comm itted his 1992 offense of felon in possession of a firearm because he had not
then been sentenced for his earlier 1992 stolen property offense. This argument
was rejected by a state judge and a federal magistrate judge. See Proposed
Findings and Recommended Disposition, 2 (D .N.M . M ar. 10, 2006).
The magistrate judge, who construed Appellant’s arguments generously,
recommended that Appellant’s 1992 convictions could no longer be open to direct
or collateral attack because the time to bring a habeas petition had expired. Id. at
5. W e agree. In addition, the district court found that even if Appellant could
demonstrate his entitlement to equitable tolling, “his Fifth Amendment claim fails
because the right to grand jury indictment does not apply to state prosecutions.”
Order Adopting M agistrate Judge’s Proposed Findings And Recommended
Disposition, 1 (D.N.M . Apr. 7, 2006) (citing Aldridge v. M arshall, 765 F.2d 63,
68 (6th Cir. 1985). The district judge also determined that his ineffective
assistance of counsel claim and his demand for an evidentiary hearing were
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without merit. Id. at 1-2.
Appellant now seeks from this court a certificate of appealability. The
issues he raises on appeal are identical to those brought before the district court.
To grant a certificate of appealability, Appellant must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).
To meet this burden, Appellant must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473,
484 (2000) (quotation omitted).
W e have carefully reviewed Appellant’s brief, the magistrate judge’s
recommendations, the district court’s disposition, and the record on appeal.
Nothing in the facts, the record on appeal, or Appellant’s filing raises an issue
which meets our standard for the grant of a certificate of appealability. For
substantially the same reasons set forth by the district court in its order of April 7,
2006, we cannot say “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner.”
Id.-3-
Accordingly, we D EN Y Appellant’s request for a certificate of
appealability and DISM ISS the appeal. Appellant's motion for appointment of
counsel is denied.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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