FILED
United States Court of Appeals
Tenth Circuit
June 26, 2009
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
HARLAN EVANS,
Petitioner - Appellant,
v. No. 08-6272
(W.D. Oklahoma)
GREG PROVINCE, Warden, and (D.C. No. 5:08-CV-00711-HE)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
This matter is before the court on Harlan Evans’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
Evans seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Evans’s request to
proceed on appeal in forma pauperis. Because Evans has not, however, “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this
court denies his request for a COA and dismisses this appeal.
A jury convicted Evans in Oklahoma state court on two counts of
conspiring to traffic in illegal drugs (one conspiracy involving methamphetamine
and one involving marijuana), two counts of trafficking in methamphetamine, one
count of unlawful distribution of marijuana, and one count of using a
communication facility to facilitate trafficking in illegal drugs. Pursuant to the
jury’s recommendation, the state trial court sentenced Evans to life plus 285
years’ imprisonment. Evans’s convictions were affirmed on direct appeal to the
Oklahoma Court of Criminal Appeals (“OCCA”). Evans v. State, 157 P.3d 139
(Okla. Crim. App. 2007). The OCCA affirmed the denial of Evans’s state-court
based request for post-conviction relief in an unpublished order. Evans v.
Province, No. CIV-08-0711-HE, 2008 WL 5101312 (Okla. Crim. App. Nov. 26,
2008).
Evans then filed the instant § 2254 petition in federal district court, raising
ten grounds for relief. The matter was referred to federal magistrate judge Doyle
Argo for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In an
exceedingly comprehensive Report and Recommendation, magistrate judge Argo
analyzed each ground for relief set out in Evans’s § 2254 habeas petition and
recommended that the district court deny habeas relief. The district court adopted
the Report and Recommendation and denied Evans’s petition.
The granting of a COA is a jurisdictional prerequisite to Evans’s appeal
from the dismissal of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To be entitled to a COA, Evans must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
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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
omitted). In evaluating whether Evans 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 Evans 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 Evans’s appellate filings, the district court’s
Order, the magistrate judge’s well-stated Report and Recommendation, and the
entire record before this court, we conclude Evans is not entitled to a COA. In so
concluding, this court has nothing to add to the comprehensive analysis set out by
magistrate judge Argo in his Report and Recommendation. Accordingly, this
court DENIES Evans’s request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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