                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUN 4 2003
                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk


THURMAN HARRISON, JR.,

         Petitioner-Appellant,

v.                                                        No. 02-1501
                                                      (District of Colorado)
CHARLES RAY; ATTORNEY                             (D.C. No. 00-RB-1971 (OES))
GENERAL OF THE STATE OF
COLORADO,

         Respondents-Appellees.




                                        ORDER


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


         Because the denial by this court of an application to file a second or

successive habeas petition may not be the subject of a petition for rehearing, we

strike the petition for rehearing filed by petitioner-appellant. See 28 U.S.C. §

2244(b)(3)(E). The court, however, sua sponte vacates its order and judgment in

this matter filed on March 31, 2003, and substitutes the following order in its

place.

         Petitioner, Thurman Harrison Jr., is before this court pro se, seeking a

certificate of appealability (“COA”). Harrison must obtain a COA before he can
appeal the district court’s dismissal 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 the denial of a § 2254 petition unless the petitioner first obtains a

COA).

      Harrison was charged in Colorado with felony theft and fraud by check.

Pursuant to the terms of a plea agreement, Harrison pleaded guilty to the felony

theft charge and the remaining charge was dismissed. Harrison was sentenced to

nine years’ incarceration to be followed by a three-year term of mandatory parole.

Harrison’s application for post-conviction relief was denied by the Colorado

Court of Appeals on February 24, 2000. The Colorado Supreme Court then

denied Harrison’s petition for a writ of certiorari.

      Harrison filed his § 2254 petition with the federal district court on October

3, 2000. In the petition, Harrison raised five issues: (1) the indictment charged

him with conduct that did not constitute a crime; (2) his due process rights were

violated when the trial court failed to inform him of the three-year term of

mandatory parole; (3) Colorado’s mandatory parole statute, Colo. Rev. Stat. § 18-

1-105(1)(a)(V)(A), is unconstitutional; (4) his due process and equal protection

rights were violated when the trial court refused to provide him with a free

transcript; and (5) his due process rights were violated at the sentencing hearing

when the trial court failed to make findings justifying an aggravated-range


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sentence. The federal district court denied each of Harrison’s claims on the

merits.

      This court cannot grant Harrison 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

Harrison 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, 123 S. Ct. 1029, 1040 (2003). Harrison 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 Harrison’s application for a COA and appellate

brief, the magistrate judge’s recommendation, 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 Harrison is not entitled to a COA. The district

court’s resolution of Harrison’s claims is not reasonably subject to debate and the




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claims are not adequate to deserve further proceedings. 1 Harrison, therefore, has

not “made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). This court denies Harrison’s request for a COA for

substantially those reasons set forth in the magistrate judge’s recommendation for

dismissal dated July 31, 2002 and the district court’s order dated October 15,

2002, and dismisses this appeal. Harrison’s request to proceed on appeal in

forma pauperis is granted.

                                      ENTERED FOR THE COURT



                                      Michael R. Murphy
                                      Circuit Judge




      1
        Although Harrison has not provided this court with a copy of the plea
agreement, we note that he admitted before the Colorado Court of Appeals that in
the agreement he expressly agreed to a sentence of nine years. Further, the
Colorado Court of Appeals found that Harrison was advised in the plea agreement
that he could be required to serve up to five years of mandatory parole. Harrison
has failed to rebut the presumption of correctness afforded this finding. See 28
U.S.C. § 2254. (“[A] determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”). Because the
sentence Harrison received is less than twice the presumptive maximum, it was
permitted by Colorado law and, therefore, is not an illegal sentence. See Colo.
Rev. Stat. § 18-1-105(6) (2000).

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