                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 20, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                  Clerk of Court
                                  TENTH CIRCUIT



 CHRISTOPHER M. DICKENS,

                 Petitioner-Appellant,                  No. 09-5049
          v.                                   Northern District of Oklahoma
 ERIC FRANKLIN, Warden,                    (D.C. No. 4:06-CV-00065-CVE-FHM)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.



      Christopher M. Dickens, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Dickens has failed to

make “a substantial showing of the denial of a constitutional right,” we deny his

request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                    Background

      Mr. Dickens was convicted of robbery with a firearm (Count I) and first

degree (felony) murder (Count II), when police shot and killed his partner in

crime during the commission of an armed robbery at a McDonalds. At

sentencing, the trial court dismissed Count I and sentenced Mr. Dickens to life

imprisonment on Count II. The Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed the conviction on direct appeal. Dickens v. State, 106 P.3d 599, 601

(Okla. Crim. App. 2005).

      Mr. Dickens filed a petition for federal habeas relief in the United States

District Court for the Northern District of Oklahoma. [Dist. Ct. Op. 3] The

district court denied his petition. [Dist. Ct. Op. 14] The district court then denied

COA, but vacated the denial and granted him additional time to file an application

for COA. Apparently, Mr. Dickens did submit an application for COA; because it

was captioned as a Tenth Circuit filing, however, the application was forwarded

to this court. Because the district court vacated its denial of COA but never

issued a subsequent ruling, Mr. Dickens’ COA application in the district court is

deemed denied. See 10th Cir. R. 22.1(C) (“Failure of the district court to issue a

certificate of appealability within thirty days of filing the notice of appeal shall be

deemed a denial.”). We now consider the merits of his COA application.

      Mr. Dickens raises the following six claims in his application, all of which

were raised on direct appeal and in his federal habeas petition: (1) insufficient

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evidence exists to support his conviction; (2) he should not be imprisoned for a

lawful killing that has been classified as a “justifiable homicide”; (3) by holding

him strictly liable, Oklahoma’s felony murder statute violates the Eighth and

Fourteenth Amendments; (4) the court issued a defective felony murder jury

instruction; (5) the court improperly denied his proposed jury instruction on

intervening cause; and (6) the prosecutor engaged in misconduct. Aplt. 2–3.

                                     Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). 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). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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) (internal

quotation marks omitted). Although Mr. Dickens need not demonstrate that his

appeal will succeed to be entitled to a COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted).

      Having undertaken a review of Mr. Dickens’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

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pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes he is not entitled to a COA. The district court’s resolution of the issues

raised in Mr. Dickens’s § 2254 motion is not reasonably subject to debate and,

therefore, his claims do not merit further proceedings.

                                    Conclusion

      Accordingly, we DENY Mr. Dickens’s request for a COA and DISMISS

this appeal.

                                                    Entered for the Court,

                                                    Michael W. McConnell
                                                    Circuit Judge




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