                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 26, 2009
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



JOHN GLENN SNYDER,

              Petitioner - Appellant,

v.                                                       No. 08-1408
                                                        (D. Colorado)
JOE ORTIZ, and THE ATTORNEY                     (D.C. No. 06-CV-01488-WYD)
GENERAL OF THE STATE OF
COLORADO,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Petitioner, John Glenn Snyder, seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of the application for

writ of habeas corpus 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 a final order

disposing of a § 2254 application unless the petitioner first obtains a COA).

Because Snyder has not “made a substantial showing of the denial of a

constitutional right,” this court denies his request for a COA and dismisses this

appeal. Id. § 2253(c)(2).

      In 2002, Snyder was charged with one count of sexual assault on a child by
a person in a position of trust and one count of sexual assault on a child by a

person in a position of trust–pattern of abuse. Pursuant to the terms of a written

plea agreement, he pleaded guilty to sexual assault on a child by a person in a

position of trust and the remaining charge was dismissed. The plea agreement set

out the possible penalties for the offense of conviction: (1) an indeterminate term

of four years’ to life imprisonment or (2) in lieu of a sentence of imprisonment,

an indeterminate term of probation from ten years to life. The trial court

sentenced Snyder to an indeterminate term of six years’ to life imprisonment.

      Snyder sought post-conviction relief pursuant to Rule 35 of the Colorado

Rules of Criminal Procedure. His Rule 35 motion was premised on his assertion

that the sexual assault incident to which he pleaded guilty occurred before

November 1, 1998, and, thus, he should not have been sentenced pursuant to the

Lifetime Supervision of Sex Offenders Act. After an evidentiary hearing at which

Snyder sought to develop a factual basis for his allegations, the state court denied

relief. The Colorado Court of Appeals affirmed the judgment of the state district

court, rejecting Snyder’s claims that (1) his sentence was illegal and violated ex

post facto principles because the Lifetime Supervision of Sex Offenders Act only

applies to offenses committed after November 1, 1998; (2) the trial court abused

its discretion by denying his Rule 35(b) motion for reconsideration of his

sentence; (3) the trial court erred by denying his Rule 35(c) motion and request to

withdraw his guilty plea because it was not entered into knowingly and

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voluntarily; and (4) the trial court erred in concluding he did not receive

ineffective assistance of counsel.

      Snyder filed the instant § 2254 application on August 1, 2006. The district

court denied relief on October 7, 2008. 1 This court cannot grant Snyder 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 Snyder 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, 537 U.S. 322,

336 (2003). Snyder 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).




      1
        Snyder sought and received a COA from this court on August 4, 2008.
Snyder v. Ortiz, 288 Fed. App’x 505, 509 (10th Cir. 2008). On remand, the
district court disposed of Snyder’s claims on the merits.

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      In his counseled appellate brief, Snyder raises four issues. 2 He first

challenges the district court’s disposition of his ineffective assistance of counsel

claims, arguing counsel’s failure to specify the date of the offense in the plea

agreement resulted in his being sentenced pursuant to the harsher provisions of

the Lifetime Supervision of Sex Offenders Act. As to this claim, the Colorado

Court of Appeals concluded Snyder failed to show he was prejudiced by counsel’s

alleged deficient performance because

      there was no evidence in the record that the prosecution would have
      offered a plea deal under the pre-November 1, 1998 sentencing
      scheme or any other more favorable plea that would have included
      the possibility of probation. Moreover, there is no evidence in the
      record that, but for counsel’s alleged errors, defendant would have
      chosen to go to trial instead of pleading guilty.

The court of appeals concluded the record supported the state trial court’s finding

that Snyder “would have selected the plea bargain which was offered to him in

order to take advantage at least of the possibility of probation.” Applying

Strickland v. Washington, 466 U.S. 668 (1984), and the standards set out in the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), the district court

concluded the Colorado courts’ adjudication of Snyder’s ineffective assistance

      2
       Snyder also argues the district court abused its discretion by refusing to
hold an evidentiary hearing on his ineffective assistance of counsel claims. See
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). He argues the lack of an
evidentiary hearing in federal court deprived him of the opportunity to
“substantiate the substandard performance provided by counsel.” There is no
merit to this argument. Snyder was granted an evidentiary hearing by the
Colorado state court and his claims can be resolved by reference to the state court
record. See id.

                                         -4-
claims was not contrary to, nor an unreasonable application of clearly established

federal law. 28 U.S.C. § 2254(d). The record fully supports the correctness of

the district court’s disposition of this claim.

      Snyder next challenges the district court’s conclusion that the Colorado

Court of Appeals’ adjudication of his ex post facto claim was not contrary to nor

an unreasonable application of clearly established federal law. Applying the

Miller-El standard, we discern no basis upon which to grant Snyder a COA on

this claim. The Colorado Court of Appeals noted that the information charged

Snyder with conduct occurring between January 1998 and November 30, 1999,

and he entered a guilty plea to that charge. Thus, he “admitted to incidents, by

way of his guilty plea, that occurred after November 1, 1998,” foreclosing his ex

post facto arguments. Although Snyder argues the sexual assault to which he

pleaded guilty occurred prior to November 1, 1998, the state court found

otherwise and there is ample support for that finding in the record.

      Snyder also seeks a COA on the claim his guilty plea was not knowing and

voluntary. Once again, he cannot meet the standard for the grant of a COA,

failing to overcome the presumption that the state court’s findings relating to this

claim are correct. See 28 U.S.C. § 2254(e)(1). Snyder’s remaining argument,

that he properly raised federal constitutional claims in connection with his

challenge to the adjudication of his Rule 35 motion, is foreclosed by this court’s




                                           -5-
prior opinion in this matter. Snyder v. Ortiz, 288 Fed. App’x 505, 508-09 (10th

Cir. 2008).

      This court has reviewed Snyder’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal, including the

transcript of the state evidentiary hearing, pursuant to the framework set out by

the Supreme Court in Miller-El and concludes that Snyder is not entitled to a

COA. The district court’s resolution of Snyder’s claims is not reasonably subject

to debate and the claims are not adequate to deserve further proceedings.

Accordingly, Snyder has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Snyder’s request for a COA and dismisses this appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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