                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                         UNITED STATES CO URT O F APPEALS
                                                                      October 5, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 JESSE G A RC IA ,

                 Petitioner - A ppellant,               No. 06-2092
          v.                                          (D. New M exico)
 ERASM O BRAVO, W arden; and                  (D.C. No. CIV-05-586 JB/AC T)
 PA TRICIA A. M ADRID, Attorney
 General of the State of New M exico,

                 Respondents - Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.


      Jessie Garcia is currently serving a 13-year sentence for cocaine trafficking

and conspiracy to traffic cocaine in violation of New M exico law. On M ay 26,

2005, he filed an application for relief under 28 U.S.C. § 2254 in the United

States District Court for the District of New M exico. He alleged that (1) he was



      *
       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(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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 and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
entrapped by law-enforcement officials, (2) he was denied his Sixth Amendment

right to confront witnesses, and (3) his trial counsel was constitutionally

ineffective. The magistrate judge’s Proposed Findings and Recommended

Disposition (Recommendation) rejected his claims as meritless. On February 28,

2006, the district court adopted the magistrate judge’s Recommendation and

denied M r. Garcia’s application. The court did not address whether to grant

M r. G arcia a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)

(requiring a COA to appeal denial of habeas application), which we deem a

denial, see United States v. Kennedy, 225 F.3d 1187, 1193 n.3 (10th Cir. 2000).

M r. Garcia now seeks a COA from this court, raising the same issues. W e deny a

COA and dismiss the appeal.

      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.




                                         -2-
      The A ntiterrorism and Effective D eath Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in a state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). Under the “contrary to” clause, relief can be granted only if the

state court arrives at a conclusion opposite to that reached by the Supreme Court

on a question of law or if the state court decides a case differently than the

Supreme Court has on a set of materially indistinguishable facts. See Gipson v.

Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004). Relief can be granted under the

“unreasonable application” clause only if the state court identifies the correct

governing legal principle from the Supreme Court’s decisions but unreasonably

applies that principle to the facts of the prisoner’s case. See id. Thus, a habeas

writ may not issue simply because a federal court concludes that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly. Id. Rather, that application must also be unreasonable. “A EDPA’s

deferential treatment of state court decisions must be incorporated into our

consideration of a habeas petitioner’s request for COA.” Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004).

                                          -3-
      M r. Garcia appears to argue that he was entitled to an entrapment

instruction and that the failure of the court to give him one was a constitutional

violation. But he may be arguing that the Constitution entitled him to an acquittal

because of the evidence of entrapment. Regardless, his argument fails. “The

Supreme Court has long recognized that the defense of entrapment ‘is not of a

constitutional dimension’.” Vega v. Suthers, 195 F.3d 573, 583 (10th Cir. 1999)

(quoting United States v. Russell, 411 U.S. 423, 433 (1973)). The district court’s

resolution of this issue was neither debatable nor wrong.

      As for M r. Garcia’s claim that he was denied his constitutional right to

confront witnesses, this right attaches only to those witnesses who actually testify

against the defendant. See U.S. Const. Amend. VI (“[T]he accused shall enjoy

the right . . . to be confronted w ith the witnesses against him . . . .” (emphasis

added)); see also United States v. Porter, 764 F.2d 1, 9 (1st Cir. 1985). The

individuals mentioned by M r. Garcia w ere not witnesses at trial, and therefore his

inability to question them was not a constitutional violation.

      Finally, as the magistrate judge’s R ecommendation explains, M r. Garcia

failed to demonstrate that the state court unreasonably applied clearly established

federal law in determining that his trial counsel’s performance did not fall below

an objective standard of reasonableness and that he suffered no prejudice from the

alleged deficiencies. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).




                                           -4-
      Because M r. Garcia fails to raise a claim that reasonable jurists would find

debatable, we DENY M r. Garcia’s application for a COA and DISM ISS the

appeal. W e also DENY M r. Garcia’s motion for appointment of counsel and

motion to dismiss charges.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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