                                                                             FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 6, 2008
                                                    Elisabeth A. Shumaker
                     UNITED STATES COURT OF APPEALS     Clerk of Court

                                  TENTH CIRCUIT


 DELFINO ORTEGA,

          Petitioner-Appellant,

 v.
                                                       No. 07-1069
 RON LEIBA, WARDEN, A.V.C.F.,
                                            (D.C. No. 05-cv-01913-EWN-MEH)
 and THE ATTORNEY GENERAL OF
                                                        (D. Colo.)
 THE STATE OF COLORADO,

          Respondent-Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, EBEL, and MCCONNELL, Circuit Judges.


      Petitioner-Appellant Delfino Ortega requests a certificate of appealability

("COA"), see 28 U.S.C. § 2253(c), that would enable him to appeal the district

court's decision denying him habeas relief, see 28 U.S.C. § 2254, from his

Colorado conviction for first degree murder. In his habeas petition, Ortega raises

several issues with respect to his trial on the murder charge: (1) whether



      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
polygraph evidence was erroneously admitted; (2) whether hearsay evidence was

improperly admitted under the co-conspirator exception; (3) whether two counts

of murder were erroneously not severed; (4) whether the jury was improperly

instructed concerning the burden of proof; and (5) whether a prosecution witness

was erroneously allowed to testify under the guise of total immunity without

proper establishment under the statutory guidelines.

      Ortega will be entitled to a COA if he can make "a substantial showing of

the denial of a constitutional right." 28. U.S.C. § 2253(c)(2). He can make such

a showing by establishing 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, 483-84 (2000) (quotations

omitted). For substantially the same reasons stated in the district court's order

and memorandum, we conclude Ortega has failed to make an adequate showing in

this case. We, therefore, DENY Ortega's motion for a COA and DISMISS this

appeal.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge


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