F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 10 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    GARY MONTOYA,

                Petitioner-Appellant,

    v.                                                   No. 99-2071
                                                (D.C. No. CIV-97-526-JP/JHG)
    TIM LEMASTER, Warden;                                 (D. N.M.)
    ATTORNEY GENERAL OF THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.
        On March 11, 1994, petitioner Gary Montoya was convicted by the State of

New Mexico of two counts of criminal sexual penetration of a minor. The

conviction was affirmed on direct appeal. Petitioner filed his petition for habeas

relief under 28 U.S.C. § 2254 on April 27, 1997, which was denied. Petitioner

appeals. The district court denied petitioner a certificate of appealability.

We construe petitioner’s notice of appeal as a renewed application for a

certificate of appealability.   See Fed. R. App. P. 22(b).

       Petitioner argues that prosecutorial misconduct deprived him of due

process. He asserts that the prosecutor: (1) improperly disclosed his prior child

sexual abuse offense during cross-examination of his wife; (2) improperly

attempted to portray him through cross-examination of his wife and in closing

argument as a depraved pedophile; (3) improperly questioned witnesses

concerning the credibility of other witnesses; and (4) made improper comments

in closing argument.

       The district court adopted the magistrate judge’s recommendation to deny

habeas relief. The district court emphasized “that the prosecuting attorney’s

questions and statements did not clearly or explicitly disclose Petitioner’s prior

offense or portray him as a ‘depraved’ pedophile.” R. doc. 23.

       We have carefully reviewed the parties’ materials. We are unpersuaded by

petitioner’s assertions of error, and deny his application for a certificate of


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appealability for substantially the same reasons as those set forth in the magistrate

judge’s August 28, 1998 recommendation and adopted by the district court in its

December 29, 1998 order.

      Petitioner’s application for a certificate of appealability is denied, and the

appeal is DISMISSED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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