Klein v. Jone, No. 10-6142 (10th Cir. 2010)
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS December 6, 2010 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court QUINN AARON KLEIN, Petitioner - Appellant, No. 10-6142 (W.D. Oklahoma) (D.C. No. 5:09-CV-00312-F) v. JUSTIN JONES, Director, Respondent - Appellee. ORDER DENYING CERTIFICATE OF APPEALABILITY Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. Quinn Aaron Klein, a state prisoner appearing pro se, seeks to appeal the district court s denial of his 28 U.S.C. § 2241 petition. The matter is before this court on Klein s request for a certificate of appealability ( COA ). See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court unless the petitioner first obtains a COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A) s requirements apply when a state habeas petitioner is proceeding under § 2241). Because Klein has not made a substantial showing of the denial of a constitutional right, this court denies his request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2) (providing that a COA may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right ). 1 In his § 2241 petition, Klein challenges the order of an Oklahoma state court revoking a portion of his suspended sentence and ordering him to serve a term of four years and six months imprisonment. In particular, Klein asserts: (1) the state court illegally revoked his suspended sentence after that sentence had already expired; (2) the prosecutor engaged in misconduct in the time period between the revocation of Klein s suspended sentence and the state court s imposition of a new sentence; and (3) trial counsel was ineffective in failing to more vigorously argue in favor of having the revocation proceedings dismissed. The matter was referred to a magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1). The magistrate judge issued a thorough and well-stated report and recommendation, recommending that the district court deny Klein s § 2241 habeas petition on the merits. 2 In particular, the magistrate judge concluded as follows: (1) Klein s suspended sentence had not expired at the time of its revocation; (2) Klein failed to demonstrate the prosecutor s actions unduly 1 This court grants Klein s request to proceed on appeal in forma pauperis. 2 In so doing, the magistrate judge recognized that this case raised serious questions as to whether Klein s claims were subject to a procedural default. The magistrate judge, however, chose to exercise her discretion to bypass the potentially complex issues of procedural default because claims raised in Klein s petition could be decided more easily and succinctly on the merits. Romero v. Furlong, 215 F.3d 1107, 1111 (10th Cir. 2000). -2- delayed the proceedings to impose sentence upon revocation of the suspended sentence and, in any event, he failed to demonstrate any prejudice flowing from the delay; and (3) Klein s cursory allegations utterly failed to demonstrate any deficiency in trial counsel s performance. Upon de novo review, the district court adopted the report and recommendation and denied Klein s petition. A COA may issue if Klein has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make this showing, he 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. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation omitted). In evaluating a request for a COA, it is not the role of this court to engage in a full consideration of the factual or legal bases adduced in support of the claims. Id. Instead, this court undertakes a preliminary, though not definitive, consideration of the [legal] framework applicable to each claim. Id. at 338. Klein is not required to demonstrate his appeal will succeed to be entitled to a COA. He must, however, prove something more than the absence of frivolity or the existence of mere good faith. Id. (quotations omitted). This court has reviewed Klein s appellate filings, the magistrate judge s report and recommendation, the district court s order, and the entire record on appeal pursuant to the framework set out by the Supreme Court in Miller-El and -3- concludes Klein is not entitled to a COA. The district court s resolution of Klein s petition is not reasonably subject to debate and the claims he seeks to raise on appeal are not adequate to deserve further proceedings. Accordingly, Klein has not made a substantial showing of the denial of a constitutional right and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This court DENIES Klein s request for a COA and DISMISSES this appeal. ENTERED FOR THE COURT Michael R. Murphy Circuit Judge -4-
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