UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RONNIE THOMAS,

Petitioner-Appellant,

v.

ROBERT A. ULIBARRI, Warden, Southern New Mexico Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees.	No. 06-2195

(D.C. No. CIV-04-0125 JH/LAM)

(D.N.M.)

ORDER

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges.

Petitioner-Appellant Ronnie Thomas, proceeding pro se, seeks leave to appeal the denial of his petition for a writ of habeas corpus. After Mr. Thomas was convicted in New Mexico state court of drug trafficking, conspiracy, and contributing to the delinquency of a minor, and the state appellate courts affirmed his conviction on direct appeal, he filed an unsuccessful state habeas petition and has now turned to the federal courts for relief. The district court below exhaustively reviewed and considered his arguments,1 discarding some as conclusory and finding the remainder lacking in legal merit. We agree.

Prior to appealing the dismissal of a petition for writ of habeas corpus sought under 28 U.S.C. § 2254, federal law requires the petitioner first to obtain a certificate of appealability ("COA"). Id. § 2253(c)(1). This requirement is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); May v. Workman, 339 F.3d 1236, 1237 (10th Cir. 2003). The district court denied Mr. Thomas's request for COA below, which he has renewed in this court.

To obtain a COA under § 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). When determining whether COA should issue, we do not make a definitive inquiry under standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996, because the COA review is distinct from the merits review of the petition. Miller-El, 537 U.S. at 342. Our only question here "is the debatability of the underlying constitutional claim, not the resolution of that debate." Id.

Even construing liberally Mr. Thomas's opening brief and application for COA, he raises no debatable argument that he is imprisoned in violation of his constitutional rights or that the district court erred in its consideration of his petition. Thus, because Mr. Thomas has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), we DENY his

application for a certificate of appealability and DISMISS his appeal.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge