FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS January 8, 2008
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
FRANK A. ALVEY,
Petitioner - Appellant, No. 07-2088
v. (D. New Mex.)
JAMES JANECKA, Warden; (D.C. No. 2:06-CV-00446-RB-WPL)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Frank Alvey was convicted by a jury of multiple counts of child sexual
abuse and related crimes. Having exhausted his state remedies, he filed a petition
for habeas corpus pursuant to 28 U.S.C. § 2254, raising numerous claims of error
primarily based on ineffective assistance of counsel. The magistrate judge, in a
through report, recommended Alvey’s claims be denied.
Alvey filed objections to the report. The district court characterized
Alvey’s objections as “primarily rephras[ing] the arguments already addressed by
the magistrate judge.” (R. Doc. 43 at 1.) Applying a de novo review of the
magistrate judge’s recommendations and Alvey’s objections, the district court
construed “the objections to be without merit.” (Id.) It denied Alvey’s
application for habeas relief, his motion for an evidentiary hearing and his
subsequent request for a Certificate of Appealability (COA).
Appearing pro se 1 and in forma pauperis, Alvey renews his request for a
COA to this Court. See 28 U.S.C. § 2253(c)(1)(A); F ED . R. A PP . P. 22(b)(1). A
COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537
U.S. 322, 336 (2003). We agree “[a]n evidentiary hearing is not required because
Alvey’s claims can be resolved on the basis of the record. See Parker v. Scott,
F.3d 1302, 1324 (10th Cir. (2005)” (R. Doc. 43. at 2.) Alvey’s brief is a
reiteration of the ineffective assistance of trial counsel claims reviewed and
addressed in the magistrate judge’s proposed findings which were adopted by the
district court. We see no need to repeat those well-reasoned decisions.
The magistrate judge’s recommendation and subsequent district court’s
dismissal were clearly, concisely and correctly stated. Jurists of reason would not
1
We liberally construe pro se pleadings. See Ledbetter v. City of Topeka,
Kan., 317 F.3d 1183, 1187 (10th Cir. 2003).
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disagree with the result. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). After
careful review, we agree “[a]n evidentiary hearing is not required because
Alvey’s claims can be resolved on the basis of the record. See Parker v. Scott,
F.3d 1302, 1324 (10th Cir. (2005)” (R. Doc. 43. at 2.)
We DENY Alvey’s request for COA and DISMISS his putative appeal.
Because his appeal is being denied, no substantive relief can be granted.
FOR THE COURT:
Terrence L. O’Brien
United States Circuit Judge
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