                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           May 25, 2005

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk


 KEVIN LEE PECHT,

          Petitioner-Appellant,
                                                        No. 04-4168
 v.                                             (D.C. No. 2:02-CV-1231-DB)
                                                           (Utah)
 STATE OF UTAH,

          Respondent-Appellee.



                                     ORDER


Before SEYMOUR, HARTZ and McCONNELL, Circuit Judges.


      Kevin Lee Pecht appears before this court pro se. 1 He seeks a certificate of

appealability (COA) pursuant to 28 U.S.C. § 2253(c)(1) in an effort to appeal the

district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. §

2254. He has also filed a motion to proceed in forma pauperis (ifp). Exercising

jurisdiction under 28 U.S.C. § 2253(c)(1), we see no basis for an appeal, deny

COA, and reject Mr. Pecht’s request to proceed ifp.

      A jury convicted Mr. Pecht on two counts of sodomy upon a child and one

count of aggravated sexual abuse of a child, under Utah state law. Mr. Pecht was

sentenced to ten years to life imprisonment on each sodomy conviction, and five


      1
       We liberally construe Mr. Pecht’s pro se application. See Hall v. Scott,
292 F.3d 1264, 1266 (10th Cir. 2002).
years to life on the aggravated sexual abuse conviction. On direct appeal he

raised several issues not presented at trial, including whether the trial court erred

by allowing into evidence videotaped statements made by the victim’s brother.

State v. Pecht, 48 P.3d 931, 936 (Utah 2002). The Utah Supreme Court ruled that

although admitting the evidence constituted error that was plain, the error was

harmless because nearly all of the information in the videotape was also presented

in trial testimony. Id. at 939. The court also held that Mr. Pecht’s constitutional

right to confront witnesses was not violated because both the victim and her

brother testified and were cross-examined. Id. at 939-40.

      Mr. Pecht sought habeas relief, asserting inter alia violation of his due

process rights by the admission of the videotape and by the Utah Supreme Court’s

conclusion that the admission was harmless. 2 The district court denied relief

because Mr. Pecht failed to raise the due process claim in state court and it was

thus unexhausted. It also held his claim procedurally defaulted because it could

have been raised in state court and was therefore now procedurally barred under

state law. See U TAH C ODE A NN . § 78-35a-106(1)(c). Mr. Pecht did not assert

cause and prejudice or a fundamental miscarriage of justice to excuse this

procedural default. See Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000).

In support of his current application for COA, Mr. Pecht reasserts his due process



      2
       Although the district court addressed other issues, Mr. Pecht has not
asserted that the court erred in its resolution of them. Those issues are therefore
waived. United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004).

                                          -2-
argument.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 537 U.S. at 327. When a district court has

dismissed a habeas petition on procedural grounds, a prisoner must also show that

“jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “The COA

determination under § 2253(c) requires an overview of the claims in the habeas

petition and a general assessment of their merits.” Miller-El, 537 U.S. at 336.

“This threshold inquiry does not require full consideration of the factual or legal

bases adduced in support of the claims. In fact, the statute forbids it.” Id. While

Mr. Pecht, in applying for a COA, is not required to prove the merits of his case,

he must demonstrate “something more than the absence of frivolity or the

existence of mere good faith on his or her part.” Id. at 338 (internal quotations

and citation omitted).

      With these principles in mind, we have carefully reviewed the record of

these proceedings and the well reasoned and detailed order of the district court.



                                          -3-
We conclude that reasonable jurists would not debate the resolution of the

constitutional claims presented nor the district court’s procedural ruling. We

therefore DENY Mr. Pecht’s request for COA and his motion to proceed ifp.

                                      ENTERED FOR THE COURT

                                      Stephanie K. Seymour
                                      Circuit Judge




                                        -4-
