                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               December 11, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



ADOLPH Q. SHERROD,

             Petitioner - Appellant,

       v.                                              No. 14-1237
                                                         (D. Colo.)
WARDEN BONNER; THE                            (D.C. No. 1:14-CV-00127-LTB)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.


      This matter is before the court on Adolph Q. Sherrod’s pro se request for a

certificate of appealability (“COA”). Sherrod seeks a COA so he can appeal the

district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order

denying a § 2254 petition unless the petitioner first obtains a COA). Because

Sherrod has not “made a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal. We do, however, grant Sherrod’s motion for leave to

proceed on appeal in forma pauperis.
      Following a jury trial in Colorado state court, Sherrod was convicted of

multiple counts of, among other things, physically and sexually assaulting his

girlfriend. Most, but not all, of the sentences imposed by the trial court were

ordered to run consecutively. After obtaining some relief on direct appeal, 1 but

no further relief in state post-conviction proceedings, Sherrod filed the instant

§ 2254 petition. Sherrod’s § 2254 petition raised the following three claims: (1)

the trial court abused its discretion in imposing consecutive sentences; (2) the

Double Jeopardy Clause requires the merger of his third degree sexual assault

conviction into his first degree assault conviction; and (3) the trial court should

have considered (a) amendatory Colorado legislation mitigating penalties for

certain crimes and (b) a heat-of-passion mitigator to arrive at more lenient

sentence as to his first degree assault conviction.

      Because the record conclusively demonstrated Sherrod was not entitled to

habeas relief, the district court dismissed his § 2254 petition without holding a

hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes

the applicant’s factual allegations or otherwise precludes habeas relief, a district

court is not required to hold an evidentiary hearing.”). The district court

concluded the first and third claims set out in Sherrod’s petition were state-law



      1
        The Colorado Court of Appeals determined Sherrod’s two convictions for
third degree sexual assault should merge and, then, remanded the matter to the
district court to resentence Sherrod.

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claims that did not raise federal constitutional issues. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state law questions. In conducting

habeas review, a federal court is limited to deciding whether a conviction violated

the Constitution, laws, or treaties of the United States.”). The district court also

concluded all three claims set out in Sherrod’s petition were unexhausted and,

furthermore, were subject to either a procedural bar or anticipatory procedural

bar. Coleman v. Thompson, 501 U.S. 722, 735 n.1, 748 (1991).

      The granting of a COA is a jurisdictional prerequisite to Sherrod’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Sherrod must make “a substantial showing of

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

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). When a district court dismisses a § 2254 petition on procedural

grounds, a petitioner is entitled to a COA only if he shows both that reasonable

jurists would find it debatable whether he had stated a valid constitutional claim

and debatable whether the district court’s procedural ruling was correct. Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating whether Sherrod has

                                          -3-
satisfied his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. Miller-

El, 537 U.S. at 338. Although Sherrod 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 Sherrod’s appellate filings, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Sherrod is not entitled to

a COA. In so ruling, this court has nothing to add to the district court’s thorough

analysis. Accordingly, this court DENIES Sherrod’s request for a COA and

DISMISSES this appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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