FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 13, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
STEVEN BARTLETT,
Plaintiff - Appellant, No. 08-2177
v. (D. New Mexico)
JAMES JANECKA, Warden, Lea (D.C. No. CV-06-00564-JCH-KBM)
County Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Defendants - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before KELLY, ANDERSON, and BRISCOE, 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 proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
*
This order is not binding precedent except under the doctrines of law of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.
Petitioner/appellant Steven Bartlett, a New Mexico state prisoner
proceeding pro se, seeks a certificate of appealability (“COA”) in order to appeal
the district court’s order dismissing Bartlett’s 28 U.S.C. § 2254 petition for a writ
of habeas corpus. We deny Bartlett a COA and dismiss this appeal.
BACKGROUND
Bartlett is currently serving two consecutive thirty-year prison sentences,
and other concurrent sentences, for the murders of Jeff Unser and Lee Benjamin,
for tampering with evidence by disposing of the bodies and the murder weapon,
and for attempting to cover up evidence of the murders at his trailer. We derive
the basic facts relevant to this case from the decision of the New Mexico Supreme
Court affirming Bartlett’s conviction on direct appeal:
On the morning of November 19, 1995, Walter Newlin found
two dead bodies near his home in the Bernalillo County east
mountain area. Along with the bodies were two orange chairs, some
clothes and jackets. Deputies also found tracks from a truck with
dual wheels. Later in the morning, approximately half a block from
Walter Newlin’s house, Robert Journey discovered a .25 caliber
semiautomatic gun missing its slide in his driveway. Later at Pete’s
Bar, four or five miles away from the scene where Walter Newlin
discovered the bodies, the Bernalillo County Sheriff’s Department
spotted a “dually” pick-up truck (a truck with dual rear tires on each
side). In the truck’s bed the Sheriff’s deputies found a blue tarp
covering a large quantity of blood and an orange seat cushion that
appeared to match the chairs at the scene where Newlin had
discovered the bodies. Blood was dripping out of the tail gate onto
the bumpers and tail pipe. Sheriff’s deputies learned that the truck
belonged to Bartlett and that Bartlett lived in a trailer approximately
50 yards behind Pete’s Bar. In Bartlett’s driveway, the deputies saw
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tracks from a dual axle truck that appeared to match the tracks of the
truck behind Pete’s Bar. There was also a blood trail that seemed to
lead from the front door of Bartlett’s trailer down the porch steps and
onto the ground.
The deputies then banged on the trailer’s windows, door and
walls for about fifteen minutes and eventually broke down Bartlett’s
front door. The deputies found Bartlett inside, fully clothed with
some blood on his boots and pants and arrested him. The deputies
also noticed a blood stain on the carpet. They subsequently obtained
a search warrant for the trailer and recovered a blood-soaked rag and
bed sheets, a sample from a chair matching the chairs at the crime
scene, several bullets, and spent shell casings.
State v. Bartlett, No. 24,462 at 2 (N.M. Oct. 16, 1998), attached to Bartlett’s
Application for COA. Following a jury trial, Bartlett was found guilty of two
counts of first degree murder and three counts of tampering with evidence. As
indicated, the trial court sentenced Bartlett to two consecutive thirty-year terms
for the murder counts and concurrent sentences on the tampering with evidence
counts. Bartlett filed a direct appeal with the New Mexico Supreme Court, which
affirmed his conviction. Id. Bartlett’s first petition for state post-conviction relief
was dismissed without prejudice. His second and third amended petitions were
dismissed, and the New Mexico Supreme Court denied certiorari on both
petitions. See Respondents’ Answer at 4-6, R. Vol. 1 at 98-100.
On June 6, 2006, Bartlett filed the instant § 2254 petition. The district
court referred it to a magistrate judge. In a 201-page report and recommendation,
the magistrate judge recommended that the respondents’ motion to dismiss be
granted and the § 2254 petition dismissed with prejudice. Bartlett filed objections
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to the report and recommendation. The district court adopted the magistrate
judge’s report and recommendation, granting respondents’ motion to dismiss and
dismissing the case with prejudice. The court subsequently denied Bartlett’s
motions for reconsideration and to alter or amend the judgment. The district
court granted Bartlett permission to proceed on appeal in forma pauperis, but
denied him a COA. This application for a COA followed.
DISCUSSION
“A COA is a jurisdictional pre-requisite to our review.” Clark v.
Oklahoma, 468 F.3d 711, 713 (10 th Cir. 2006). We will issue a COA only if
Bartlett makes a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). To make this showing, he must establish that “reasonable
jurists could debate whether . . . 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. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotations omitted).
Both before the district court and on appeal, Bartlett raises an enormous
number of issues, many of which are duplicative of each other and/or redundant.
The magistrate judge’s report and recommendation, adopted by the district court,
was lengthy and extremely thorough. As the magistrate judge specifically
remarked, however, “[t]he length of this document should not be construed as an
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indication that the merits of the allegations are difficult or close. It is long
simply because of Plaintiff’s determination to create an extraordinary number of
claims and my desire to provide the reviewing court a more concise but
comprehensive path through the maze.” Report and Recommendation at 2, R.
Vol. 1 at 195. We have carefully read Bartlett’s submissions, the magistrate
judge’s report and recommendation, and the entire record in this case. For
substantially the reasons stated in the report and recommendation, adopted by the
district court, we conclude that Bartlett has failed to make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore
deny his application for a COA and dismiss this appeal.
CONCLUSION
For the foregoing reasons, the request for a COA is DENIED and the appeal
is DISMISSED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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