Walton v. Falk, No. 14-1208 (10th Cir. 2014)
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FILED United States Court of Appeals Tenth Circuit October 7, 2014 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court HUGH WALTON, Petitioner - Appellant, v. FRANCIS FALK, Warden, L.C.F.; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, No. 14-1208 (D. Colorado) (D.C. No. 1:13-CV-00403-RM) Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before GORSUCH, MURPHY, and HOLMES, Circuit Judges. This matter is before the court on Hugh Walton s pro se requests for a certificate of appealability ( COA ) and to proceed on appeal in forma pauperis. Walton seeks a COA so he can appeal the district court s denial of his 28 U.S.C. § 2254 habeas corpus petition. 28 U.S.C. § 2253(c)(1)(A). We grant his request to proceed on appeal in forma pauperis. Because he has not, however, made a substantial showing of the denial of a constitutional right, id. § 2253(c)(2), this court denies Walton s request for a COA and dismisses this appeal. Following a jury trial in Colorado state court, Walton was convicted on multiple criminal counts arising out of the armed robbery of a grocery store. Thereafter, Walton filed the instant § 2254 petition raising ten claims, several of which had multiple subparts. In two exceedingly thorough orders, the district court determined the claims set out in Walton s petition (1) failed to raise a federal constitutional issue, (2) were procedurally defaulted, or (3) failed to satisfy the standard for obtaining habeas relief set out in 28 U.S.C. § 2254(d). Walton seeks a COA on only two of the issues he raised before the district court: (1) his assertion he was denied due process when the Colorado Court of Appeals refused to consider an issue on post-conviction review because, it concluded, the issue could have been raised on direct appeal; and (2) the claim he was denied effective assistance of counsel when counsel failed to raise a challenge to a purported violation of Walton s right to a speedy trial. The granting of a COA is a jurisdictional prerequisite to Walton s appeal from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be entitled to a COA, Walton must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make the requisite showing, he must demonstrate 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, 537 U.S. at 336 (quotations -2- omitted). In evaluating whether Walton has satisfied his burden, this court undertakes a preliminary, though not definitive, consideration of the [legal] framework applicable to each of his claims. Id. at 338. Although Walton need not demonstrate his appeal will succeed to be entitled to a COA, he must prove something more than the absence of frivolity or the existence of mere good faith. Id. Having undertaken a review of Walton s appellate filings, the district court s thorough orders, and the entire record before this court, we conclude Walton is not entitled to a COA. It cannot be reasonably argued the district court erred in concluding Walton s complaints about Colorado s post-conviction procedures failed to allege a violation of federal law. Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (holding a claim of constitutional error that focuses only on the State s post-conviction remedy and not the judgment which provides the basis for [the petitioner s] incarceration . . . states no cognizable federal habeas claim ); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding that even if otherwise preserved, the petitioner s claim challenging the Oklahoma post-conviction procedures on their face and as applied to him would fail to state a federal constitutional claim cognizable in a federal habeas proceeding ). Likewise, the district court was undeniably correct to conclude the state court s factual findings, made after holding a three-day evidentiary hearing, established Walton suffered no prejudice from trial counsel s failure to raise a -3- speedy-trial claim. 28 U.S.C. § 2254(d). Accordingly, this court DENIES Walton s request for a COA and DISMISSES this appeal. ENTERED FOR THE COURT Michael R. Murphy Circuit Judge -4-
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