F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
January 3, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEV EN H A RR IN G TO N ,
Petitioner-A ppellant,
No. 06-1016
v.
(District of Colorado)
(D.C. No. 04-CV -551-LTB -CB S)
LARRY REID; JOHN SU THERS, the
Attorney General for the State of
Colorado,
Respondents-Appellees.
ORDER
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Proceeding pro se, Steven D. Harrington seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Because Harrington 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. Id. § 2253(c)(2).
A Colorado jury convicted Harrington of first degree murder, criminal
attempt first degree murder, first degree assault, second degree kidnapping,
aggravated robbery, first degree aggravated motor vehicle theft, and criminal
attempt first degree sexual assault. Harrington’s convictions were affirmed on
direct appeal by the Colorado Court of Appeals. Harrington then filed a motion
pursuant to Colo. R. Crim. P. 35(c) seeking post-conviction relief. After the
motion was denied by the state trial court, Harrington filed a renewed Rule 35(c)
post-conviction motion which was also denied. The Colorado Court of Appeals
reversed the denial of Harrington’s Rule 35(c) motion and remanded to the trial
court to make findings of fact pursuant to Colo. R. Crim. P. 35(c)(3). On remand,
the trial court once again denied the motion. The Colorado Court of Appeals
affirmed that decision on June 12, 2003, and the Colorado Supreme Court denied
Harrington’s petition for w rit of certiorari.
Harrington filed the instant § 2254 petition on M arch 11, 2004, raising the
follow ing ten claims: (1) he w as denied his right to a fair trial and due process
because of the trial court’s failure to sever his trial from that of his codefendant,
(2) he w as denied his right to a fair trial and due process w hen the trial court
permitted a Denver police officer to testify as an expert in gang activities, (3) he
was denied his right to a fair trial and due process because the trial court
permitted gang-related evidence to be admitted, (4) he was denied his right to a
fair trial and due process as a result of the prosecution’s exercise of peremptory
challenges, (5) he was denied his right to a fair trial and due process because of
jury misconduct, (6) he w as denied his right to a fair trial and due process
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because the trial court permitted the admission of eyewitness identifications, (7)
he w as denied his right to a fair trial and due process due to the state’s
suppression of material evidence in violation of the principles announced in
Brady v. M aryland, 373 U.S. 83 (1963), (8) he was denied his right to a fair trial
and due process w hen the trial court allowed a physician to testify as an expert
outside his defined area of expertise, (9) he was denied his right to effective
assistance of counsel both during trial and during post-conviction proceedings,
and (10) he was denied his right to a fair trial and due process w hen the trial court
refused to hold an evidentiary hearing during his post-conviction proceeding.
In a lengthy and thorough Recommendation which addressed each of
Harrington’s claims in turn, a magistrate judge recommended the denial of
Harrington’s § 2254 petition. After reviewing the magistrate judge’s
Recommendation and considering Harrington’s objections thereto, the district
court adopted the recommended ruling and denied Harrington’s § 2254 petition.
Although Harrington’s petition contained both exhausted and unexhausted
claims, the district court addressed the entire petition on the merits. M oore v.
Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002). The court concluded that, to
the extent Harrington’s claims involved only allegations of state law error, the
claims were not cognizable in a federal habeas corpus proceeding. See Estelle v.
M cGuire, 502 U.S. 62, 67-68 (1991). To the extent those claims also implicated
Harrington’s constitutional rights, however, the court analyzed them on the merits
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and concluded Harrington was not entitled to relief because he failed to
demonstrate his trial was rendered fundamentally unfair. See Donnelly v.
DeChristoforo, 416 U.S. 637, 642-48 (1974); Duckett v. M ullin, 306 F.3d 982,
999 (10th Cir. 2002). The district court also reviewed the constitutional claims
that were previously adjudicated by the Colorado state courts. Applying the
standard set forth in the Antiterrorism and Effective Death Penalty Act, the
district court concluded the state courts’ adjudication of those claims was not
contrary to, nor an unreasonable application of clearly established federal law. 28
U.S.C. § 2254(d).
This court cannot grant Harrington a COA unless he can 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.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether
Harrington has carried his burden, this court undertakes “a preliminary, though
not definitive, consideration of the [legal] framework” applicable to each of his
claims. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). Harrington is not
required to demonstrate that 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).
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This court has review ed Harrington’s application for a COA and appellate
brief, the magistrate judge’s Recommendation, the district court’s Order, and the
entire record on appeal pursuant to the framew ork set out by the Supreme Court
in M iller-El and concludes Harrington is not entitled to a COA. The district
court’s resolution of Harrington’s claims is not reasonably subject to debate and
the claims are not adequate to deserve further proceedings. Accordingly,
Harrington 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 Harrington’s request for a COA and dismisses this
appeal. Harrington’s motion to proceed in forma pauperis is granted.
Entered for the Court
ELISABETH A. SHUM AKER, Clerk
By
Deputy Clerk
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