Aragon vs. Broaddus, No. 07-1224 (10th Cir. 2007)
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FILED United States Court of Appeals Tenth Circuit October 24, 2007 UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court C HRISTO PH ER AR AG O N , Petitioner-A ppellant, v. No. 07-1224 District of Colorado M A RK BR OA D D U S and JO H N SU THERS, Colorado State Attorney General, (D.C. No. 07-CV-00664-ZLW ) Respondents-Appellees. OR DER DENY ING CERTIFICATE O F APPEALABILITY * Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges. Christopher Aragon, a state prisoner proceeding pro se, seeks a certificate of appealability (COA) that would allow him to appeal from the district court s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). Because w e conclude that M r. Aragon has failed to make a substantial show ing of the denial of a constitutional right, we deny his request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2). M r. Aragon was convicted of first degree murder and related charges in M ay 2003, pursuant to a guilty plea. He did not appeal, but over a year later, on * This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. February 8, 2005, he filed a motion in state court for post-conviction relief, which was denied on M arch 2, 2005. According to M r. Aragon s complaint, he filed a timely notice of appeal but the Colorado Court of Appeals dismissed the appeal as untimely. M r. Aragon filed an application for habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254, arguing that the state appellate court s dismissal of his appeal was erroneous and a violation of his due process rights. The federal district court denied his habeas application on the ground that the constitutionality of state post-conviction procedures may not be challenged on federal habeas. The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed only if the district court or this Court first issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA will issue 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 such a showing, a petitioner must demonstrate that reasonable jurists could debate whether . . . 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). The district court was unquestionably correct that the constitutionality of state post-conviction procedures may not be challenged in a federal habeas action. See Sellers v. W ard, 135 F.3d 1333, 1339 (10th Cir. 1998). The habeas w rit -2- provides a basis for challenging the legality of a prisoner s confinement, which rests on his initial conviction. A state is not constitutionally required to provide post-conviction process, Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), and even if such process w ere defective, the defect would not impugn the prisoner s conviction or the legality of his confinement. Accordingly, we D EN Y M r. Aragon s request for a COA and DISM ISS this appeal. Petitioner s motion to proceed in form a pauperis is also DENIED. Entered for the Court, M ichael W . M cConnell Circuit Judge -3-
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