                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                DEC 6 2004
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 MICHAEL TRUELOVE,

           Petitioner - Appellant,

 v.                                                         No. 03-2309
                                                         (D. New Mexico)
 REED SMITH, Warden, Lea County                  (D.Ct. No. CIV-98-1484-LH/DJS)
 Correctional Facility; ATTORNEY
 GENERAL FOR THE STATE OF
 NEW MEXICO,

           Respondents - Appellants.


             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(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         This order is not binding precedent except under the doctrines of law of the case,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. The court generally disfavors the citation of orders;
nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Michael Truelove, a New Mexico state inmate, appeals pro se 1 and in forma

pauperis, seeking a certificate of appealability (COA) of the district court’s denial

of his 28 U.S.C. § 2254 habeas petition. The district court denied Truelove’s

request for a COA. Finding no basis for an appeal, we also deny a COA.

                                     Background

      The facts are uncontested. Truelove was the driver of a vehicle containing

ten other passengers returning from Juarez, Mexico, on their way to

Almamogordo, New Mexico. During the early hours of November 10, 1995, the

vehicle rolled over killing two of the passengers and severely injuring two others.

There was trial testimony that Truelove was speeding and passed other vehicles

by using the right shoulder of the road. It was during one of these right shoulder

passes that the accident occurred.

      On May 7, 1996, Truelove was convicted by a state jury of two counts of

homicide by vehicle and two counts of great bodily injury by vehicle. He was

also convicted of one count of failing to appear. The court sentenced Truelove to

a total of eighteen years imprisonment. The New Mexico Court of Appeals

affirmed his convictions on July 9, 1997. The New Mexico Supreme Court

denied his petition for writ of certiorari. On April 23, 1998, Truelove filed a state



      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).

                                           -2-
habeas petition, which the court denied. On May 28, 1998, the New Mexico

Supreme Court denied certiorari review of his habeas appeal.

       On December 2, 1998, Truelove filed a § 2254 federal habeas petition in

which he raised multiple grounds challenging his conviction and sentence. On

July 21, 1999, the district court dismissed the petition as time-barred under 28

U.S.C. § 2244(d)(1). On appeal, however, we reversed and remanded for further

proceedings. 2

       On remand, Truelove renewed his previous claims, arguing (1) there was

insufficient evidence to support his homicide and great bodily injury convictions;

(2) he was denied due process and his right to an appeal based on the fact the

state court of appeals relied on the log and summary of tape recordings of the

original trial in deciding his direct appeal; (3) he was denied effective assistance

of trial counsel; (4) he was denied “compulsory” process to obtain witnesses to

testify in his defense; (5) he was denied due process because his conviction was

allegedly obtained by confessions coerced from two of the witnesses at trial; (6)

the trial court erred in allowing charges of great bodily injury to go to the jury

when there was no expert testimony presented regarding the injuries suffered; (7)

his sentence amounted to cruel and unusual punishment. 3

       2
           See Truelove v. Smith, No. 112381, 2001 WL 491143 (10th Cir. May 9, 2001).
       3
         Like the district court, we perceive only eight issues on appeal. While Truelove
asserts he was denied effective assistance of appellate counsel, a searching review of the

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       The district court, after considering de novo the proposed findings and

recommended disposition of the magistrate judge to whom the matter was first

referred, dismissed the petition with prejudice. 4

                                       Discussion

       To be entitled to a COA, Truelove must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, Truelove 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.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In deciding

whether Truelove has carried 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 Truelove need not demonstrate that 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. (quotations omitted).


record fails to uncover even a hint of cogent argument in support of this claim.
Therefore, we refuse to consider it. See United States v. Metzger, 233 F.3d 1226, 1229
(10th Cir. 2000).
       4
         Neither the magistrate judge nor the district court specifically addressed
Truelove’s claim that his sentence amounted to cruel and unusual punishment. However,
we construe the magistrate judge’s recommended disposition of dismissal of the § 2254
petition with prejudice, adopted by the district court after de novo review, to include a
general denial of this claim. Like Truelove’s other claims, we consider it to be without
merit.

                                            -4-
      The magistrate judge’s 14-page Proposed Findings and Recommended

Disposition precisely and accurately identifies why Truelove’s claims have

repeatedly failed to gain the attention of the various state courts as well as the

district court. Each one amounts to a conclusory allegation without necessary

factual and/or legal support. Consequently, upon careful consideration of

Truelove’s challenges and the record on appeal, and in lieu of restating the

persuasive reasoning of both the New Mexico Court of Appeals and the district

court, we deny Truelove a COA for substantially the same the reasons enunciated

in the magistrate judge's report and recommendation.

                                     Conclusion

      Accordingly, we DENY Truelove’s application for a COA and DISMISS

the appeal.

                                        Entered by the Court:

                                        Terrence L. O’Brien
                                        United States Circuit Judge




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