FILED
United States Court of Appeals
Tenth Circuit
March 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
CLYDE E. SAVAGE,
Petitioner - Appellant,
v.
No. 08-1358
(D. Colorado)
TRAVIS TRANI, * Warden, Limon
(D.C. No. 1:07-CV-01419-ZLW-MEH)
Correctional Facility; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Proceeding pro se, Clyde Savage seeks a certificate of appealability
(“COA”) so he can appeal the district court’s denial of the habeas petition he filed
pursuant to 28 U.S.C. § 2254. 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). Savage’s motion to proceed in forma pauperis is
granted.
*
Pursuant to Fed. R. App. P. 43(c)(2), Travis Trani is substituted for Steven
Hartley as Warden of the Limon Correctional Facility, effective September 2008.
In June 1988, a Colorado jury convicted Savage of first degree murder in
the shooting death of a twelve-year-old boy. Savage was sentenced to life
imprisonment with the possibility of parole. Savage’s conviction was affirmed on
direct appeal. He then sought state post-conviction relief, filing a motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure wherein he
alleged his trial attorneys (1) failed to call or properly use expert witnesses,
especially in the area of ballistics and (2) pursued a frivolous “alternate suspect”
defense. When that motion was denied, Savage filed a second state post-
conviction motion claiming the prosecution suppressed exculpatory evidence and
reasserting his ineffective assistance of counsel claim. The second post-
conviction motion was also denied.
Savage filed the instant § 2254 application on July 6, 2007. He raised two
claims in his application: (1) he was denied his constitutional right to due process
because the ballistics expert who testified at his trial committed perjury, and (2)
his trial counsel was ineffective for basing his defense on an alternate suspect
theory. The district court denied relief, concluding Savage’s claims were
procedurally barred because they were not exhausted in the Colorado state
proceedings 1 and Savage failed to demonstrate cause and prejudice for the default
1
Although Savage raised the ineffective assistance claim in his first post-
conviction motion, he appealed its denial only on the basis that the Colorado trial
court made inadequate findings to support its ruling. He did not appeal the trial
court’s substantive ruling.
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or establish that a fundamental miscarriage of justice would occur if the merits of
the claims were not addressed. See Coleman v. Thompson, 501 U.S. 722, 750
(1991).
This court cannot grant Savage 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.
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether
Savage has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Savage 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).
This court has reviewed Savage’s application for a COA and appellate
brief, the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes that Savage
is not entitled to a COA. Savage’s argument that he can establish cause and
prejudice to overcome the procedural bar by showing he received ineffective
assistance from the attorney who represented him in his state post-conviction
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proceedings is unavailing because there is no right to counsel in post-conviction
proceedings. United States v. Prows, 448 F.3d 1223, 1229 (10th Cir. 2006).
The district court’s resolution of Savage’s claims is not reasonably subject
to debate and the claims are not adequate to deserve further proceedings.
Accordingly, Savage 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 Savage’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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