05-7104 -- Ensey v. Mullins -- 07/10/2006

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GARRY ENSEY, also known as Garry Dean Ensey,

Petitioner-Appellant,

MIKE MULLINS, Warden,

Respondent-Appellee.

No. 05-7104

(D.C. No. 02-CV-501-P)

(E.D. Okla.)

ORDER

DENYING A CERTIFICATE OF APPEALABILITY

Before TACHA, Chief Judge, O'BRIEN, and McCONNELL, Circuit Judges.

Garry Ensey, an Oklahoma state prisoner proceeding pro se, seeks a certificate of appealability ("COA") to challenge the district court's denial and dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus, in which he asserted that his Sixth Amendment right to a speedy trial and his rights under the Interstate Agreement on Detainers, Okla. Stat. tit. 22, § 1347, were violated.

To obtain a COA under [28 U.S.C.] § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing 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. McDaniel, 529 U.S. 473, 483-84 (2000) (citation and quotation omitted).⁽¹⁾

Having carefully considered Mr. Ensey's application for a COA and his opening brief, the record, and the applicable law, we determine that he has not made a substantial showing of the denial of a constitutional right. Accordingly, we DENY his request for a COA and DISMISS the appeal.⁽²⁾

Entered for the Court

Deanell Reece Tacha

Chief Circuit Judge

FOOTNOTES
Click footnote number to return to corresponding location in the text.

^1. We do not consider Mr. Ensey's assertion that his right to a speedy trial was violated under the Oklahoma Constitution and Oklahoma's statutory provision concerning speedy trials, Okla. Stat. tit. 22, § 812.1. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").

^2. Mr. Ensey filed with this court a request to proceed in forma pauperis (ifp). He was granted permission to proceed ifp in the district court. R., Doc. 18. Since the district court did not certify in writing that his appeal was not taken in good faith, 28 U.S.C. § 1915(a)(3), his ifp status continues in this court without further order. See Fed. R. App. P. 24(a)(3). His ifp request is therefore denied as moot.

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