FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS August 12, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
STEVEN A. DELOGE,
Petitioner-Appellant, No. 08-8081
v. District of Wyoming
SCOTT ABBOTT, Warden, Wyoming (D.C. No. 2:04-CV-00317-ABJ)
State Penitentiary and PATRICK
CRANK, Wyoming Attorney General,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Steven A. Deloge, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal from the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that Mr. Deloge has failed to make “a
substantial showing of the denial of a constitutional right,” we deny his request
for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
Mr. DeLoge was charged with eleven counts of second degree sexual
assault against his then eight-year-old step-daughter. He pled guilty to six of the
counts in exchange for an agreement by the State to drop the other five and
refrain from filing any other criminal charges arising out of his abuse of the
victim in Wyoming. The trial court sentenced Mr. DeLoge to six consecutive life
sentences.
In March 2001, Mr. DeLoge appealed to the Wyoming Supreme Court.
While the appeal was pending, Mr. DeLoge filed a motion to withdraw his guilty
plea, claiming it was involuntary. While this motion was pending, the Wyoming
Supreme Court affirmed Mr. DeLoge’s sentences in a unanimous opinion.
DeLoge v. State, 55 P.3d 1233 (Wyo. 2002) (DeLoge I). Mr. DeLoge then filed a
motion in the trial court seeking the return of his seized property. The trial court
denied Mr. DeLoge’s motion to withdraw his guilty pleas, but did not rule on his
motion for return of seized property. Mr. DeLoge considered the motion denied
after 90 days pursuant to Wyoming law and appealed the denials of both motions.
The Wyoming Supreme Court affirmed the trial court’s denial of his motion to
withdraw his guilty pleas, and remanded for the district court to rule on the merits
of his motion for return of seized property. DeLoge v. State, 123 P.3d 573, 578,
579 (Wyo. 2005) (DeLoge II).
Mr. DeLoge filed a pro se state petition for post-conviction relief, which
the district court denied. He petitioned the Wyoming Supreme Court for review,
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and it denied the petition without comment. He then filed a federal habeas
petition with the United States District Court for the District of Wyoming on
January 19, 2005, raising the same issues he raised in his state habeas proceeding.
The district court, in an 85-page order, denied Mr. DeLoge’s petition, finding that
he “ha[d] not stated a claim upon which th[e] Court [could] grant relief.” Dist.
Ct. Or. 1. He now seeks a certificate of appealability (COA) raising many of the
same issues.
The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed
only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate 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
quotation marks omitted). Although Mr. DeLoge 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.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotation marks omitted).
Having undertaken a review of Mr. DeLoge’s application for a COA and
appellate filings, the district court’s order, and the entire record on appeal
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pursuant to the framework set out by the Supreme Court in Miller-El, this court
concludes he is not entitled to a COA. The district court’s resolution of Mr.
DeLoge’s § 2254 motion is not reasonably subject to debate and the issues he
seeks to raise on appeal are not adequate to deserve further proceedings.
Accordingly, this court DENIES Mr. DeLoge’s request for a COA and dismisses
this appeal.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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