Smith v. Wilson, et al, No. 11-8023 (10th Cir. 2011)

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FILED United States Court of Appeals Tenth Circuit October 28, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT AARON EUGENE SMITH, Petitioner Appellant, v. No. 11-8023 (D.C. No. 2:09-CV-00257-ABJ) EDDIE WILSON, Wyoming Department of Corrections State Penitentiary Warden; GREGORY A. PHILLIPS, Wyoming Attorney General, (D. Wyo.) Respondents Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY * Before O BRIEN, McKAY, and TYMKOVICH, Circuit Judges. Petitioner seeks a certificate of appealability to appeal the district court s denial of his § 2254 habeas petition. After a jury found him guilty of first degree murder and other weapons charges, Petitioner filed a motion for a new trial based on newly discovered evidence of alleged juror bias. The state district court denied his motion, and the Wyoming Supreme Court affirmed. See Smith v. State, * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 190 P.3d 522 (Wyo. 2008). To appeal the denial of his habeas petition, Petitioner must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1). In denying Petitioner s habeas petition, the district court concluded that the Wyoming Supreme Court did not unreasonably apply the law, nor did Petitioner provide clear and convincing evidence that the state court s factual decisions were clearly erroneous. We agree with the district court, and have nothing to add to that court s thorough analysis. After carefully reviewing Petitioner s brief and the record on appeal, we conclude that reasonable jurists would not debate whether the district court erred in dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We therefore DENY the application for a certificate of appealability and DISMISS the appeal. ENTERED FOR THE COURT Monroe G. McKay Circuit Judge -2-

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