Gary Lynn Adamson, Petitioner-appellant, v. Aristedes W. Zavaras, Executive Director; Bob Hickox; Galenorton, Attorney General of the State of Colorado,respondents-appellees, 48 F.3d 1231 (10th Cir. 1995)

This matter is before the court on petitioner Gary Lynn Adamson's application for a certificate of probable cause. The right of a petitioner convicted of a state crime to appeal a federal district court's denial of habeas corpus relief is conditioned upon either the district court or this court granting a certificate of probable cause. See 28 U.S.C. 2253.

The Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 892-93 (1983), declared that the "primary means of separating meritorious from frivolous [habeas corpus] appeals should be the decision to grant or withhold a certificate of probable cause." We will not grant such a certificate unless the petitioner makes "a substantial showing of the denial of an important federal right by demonstrating that the issues raised are debatable among jurists, that a court could resolve the issues differently, or that the questions deserve further proceedings." Gallagher v. Hannigan, 24 F.3d 68 (10th Cir. 1994) (citing Barefoot, 463 U.S. at 893 & n. 4).

Petitioner raises four issues in this appeal, but has not exhausted his state remedies with regard to three of those claims. He may be excused from the exhaustion requirement if those claims are procedurally defaulted in state court and he demonstrates either cause and actual prejudice, or that denying federal review will result in a fundamental miscarriage of justice. Coleman v. Thompson, 111 S. Ct. 2546 (1991). Neither the record nor the factual allegations in the petition meet these standards. The fourth claim, alleging a due process violation because the prosecutor added habitual criminal charges after petitioner refused a plea bargain, does not demonstrate prosecutorial vindictiveness nor the violation of a recognized constitutional right, and therefore fails on the merits.

The magistrate judge in the Report and Recommendation of August 29, 1994, which was adopted by the district court, correctly analyzed the facts and law. We conclude that petitioner has failed to make the necessary showing to warrant our issuance of a certificate of probable cause. Therefore, we deny his application and DISMISS the appeal.

The mandate shall issue forthwith.