UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

VERNELL MITCHELL,

Petitioner-Appellant,
v.	No. 07-1147
GARY WATKINS, Warden, L.C.F.,

COLORADO ATTORNEY GENERAL,

Respondents-Appellees.

(D.C. No. 03-cv-01265-WDM-BNB)

(D. Colorado)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.

Vernell Mitchell, a Colorado prisoner appearing pro se, seeks a certificate of appealability (COA) in order to challenge the district court's denial of his 28 U.S.C. § 2254 petition for federal habeas relief. Because Mitchell has failed to satisfy the standards for the issuance of a COA, we deny his request and dismiss the matter.

I.

In 1989, Mitchell was convicted in Colorado state court on two counts of first degree murder for the 1978 shooting deaths of his ex-girlfriend and a male companion, and was sentenced to consecutive life terms. Mitchell directly appealed to the Colorado Court of Appeals (CCA), which rejected all of his claims and affirmed the judgment. People v. Mitchell, 829 P.2d 409 (Colo. App. 1991). Mitchell filed a petition for certiorari with the Colorado Supreme Court (CSC), but that petition was denied. Thereafter, Mitchell made three unsuccessful attempts at seeking state post-conviction relief.

Mitchell filed his federal habeas petition on July 14, 2003, asserting eleven claims for relief:

(1) the trial court violated his Sixth and Fourteenth Amendment rights by admitting hearsay statements of the female victim;

(2) the trial court violated his right to testify;

(3) the eleven-year delay between the murders and the time of his prosecution violated his Fourteenth Amendment rights;

(4) ineffective assistance of trial counsel (based on five alleged failures);

(5) the trial court violated his right to a fair trial by failing to give a limiting instruction regarding the testimony of one witness and the district attorney's closing arguments;

(6) the prosecution's knowing use of perjured testimony of one witness violated his right to a fair trial;

(7) ineffective assistance of post-conviction counsel;

(8) the trial court violated his Fourth and Fourteenth Amendment rights by allowing illegally obtained statements and evidence to be introduced at trial;

(9) ineffective assistance of appellate counsel;

(10) the Colorado courts violated his due process rights by failing to grant him liberal construction of his pro se post-conviction pleadings and in deeming his second application for post-conviction relief to be successive; and

(11) the Colorado courts violated his due process and confrontational rights by failing to allow him the ability to correct erroneous information contained in his appellate record.

The magistrate judge assigned to the case issued a lengthy and detailed report and recommendation recommending that Mitchell's petition be denied. After allowing Mitchell to file written objections to the report and recommendation, the district court rejected those objections, adopted the report and recommendation in full, and denied Mitchell's habeas petition. The district court subsequently denied Mitchell's request for a COA. Mitchell has now renewed his request for a COA with this court. Mitchell has also filed a motion to proceed in forma pauperis on appeal.

II.

Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In other words, a state prisoner may appeal from the denial of federal habeas relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make that showing, a prisoner 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. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). If the district court denied the "habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim," the prisoner must, in order to obtain a COA, demonstrate "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

Here, the magistrate judge concluded, and the district court agreed, that seven of Mitchell's claims, as well as a portion of an eighth claim, were procedurally barred. In particular, the magistrate judge and district court concluded that:

• Claims (1) and (3) were procedurally defaulted due to Mitchell's failure to present them to the CSC, Mitchell failed to establish cause for the procedural default, and the failure of the federal courts to consider the claims would not result in a fundamental miscarriage of justice;

• Two of the bases for Claim (4), which alleged ineffective assistance of counsel, were unexhausted, subject to anticipatory procedural bar in state court, and Mitchell failed to establish cause for the default; and

• Claims (5), (6), (8), (9) and (11) were unexhausted, subject to anticipatory procedural bar in state court, and Mitchell failed to establish cause for the default.

After examining the record on appeal, we agree that each of these procedural bars were plain and that no reasonable jurist could conclude either that the district court erred in dismissing the claims or that Mitchell should be allowed to proceed further on these claims. Thus, for substantially the same reasons set forth in the magistrate judge's report and recommendation, we deny Mitchell's request for COA with respect to each of these claims.

As for the remaining claims, the magistrate judge and district court addressed and rejected them on the merits, concluding, in pertinent part:

• as to Claim (2), the CCA determined that competent evidence existed to support the trial court's finding that Mitchell understood his right to testify and voluntarily waived that right, and Mitchell, in seeking federal habeas relief, had failed to rebut those findings by clear and convincing evidence, as required by 28 U.S.C. § 2254(e)(1);

• as to Claim (4), the Colorado appellate courts rejected on the merits Mitchell's claims that his trial counsel was ineffective for failing to (a) present testimony from the police officers with whom a witness claimed he had collaborated, (b) timely object to a portion of the prosecutor's closing argument, and (c) present evidence to support Mitchell's theory that the murders occurred during a robbery of the victims, and those determinations were neither contrary to, nor an unreasonable application of, the principles outlined in Strickland v. Washington, 466 U.S. 668 (1984);

• Claim (7) failed to state a valid basis for federal habeas relief because neither the Constitution nor federal law provides for a right to counsel in state post-conviction proceedings; and

• Claim (10) also failed to state a valid basis for federal habeas relief because it focused exclusively on the state courts' procedural handling of his applications for post-conviction relief, rather than the underlying judgment which provided the basis for Mitchell's incarceration.

We conclude, upon review, that no reasonable jurist "could debate whether (or, for that matter, agree that)" any of these claims "should have been resolved in a different manner or that [they] were adequate to deserve encouragement to proceed further." Slack, 529 U.S. at 484 (internal quotation marks omitted).

The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge