                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  September 1, 2009
                                   TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

 ROBERT A. SCOTT, JR.,

          Petitioner-Appellant,
 v.                                                       No. 09-8038
 MICHAEL J. MURPHY, Warden,                     (D.C. No. 2:08-CV-00064-ABJ)
 Wyoming State Penitentiary; STATE                      (D. Wyoming)
 OF WYOMING,

          Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



      Robert A. Scott, Jr., a state prisoner appearing pro se, 1 seeks a certificate of

appealability (“COA”) in order to challenge the district court’s denial of his 28

U.S.C. § 2254 application for federal habeas relief. Because Scott has failed to

satisfy the standards for the issuance of a COA, we deny his request and dismiss

the matter.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
      As he is proceeding pro se, we have construed Scott’s pleadings liberally.
Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).
                                          I

      Scott conditionally pled guilty to two counts of aggravated assault,

reserving his right to appeal the denial of a motion to dismiss based on his speedy

trial rights under Wyoming law. See Wyo. R. Crim. P. 48(b)(2) (“A criminal

charge shall be brought to trial within 180 days following arraignment unless

continued as provided in this rule.”). Scott was sentenced to a term of eight to

ten years’ imprisonment on the first charge of aggravated assault and a term of

five to eight years for the second charge, to be served consecutively.

      On direct appeal, Scott raised the single issue he had preserved in his

conditional guilty plea: whether Wyoming failed to provide him with a speedy

trial under Rule 48(b) of the Wyoming Rules of Criminal Procedure because more

than 180 days passed between his arraignment on November 5, 2004 and his

guilty plea on June 10, 2005. (Scott did not make a Sixth Amendment speedy

trial claim on direct appeal.) The Wyoming Supreme Court rejected Scott’s claim

of error and affirmed the district court. 2 Scott v. State, 153 P.3d 909, 911 (Wyo.

      2
          Specifically, the Wyoming Supreme Court stated:

              The appellant correctly computes that 217 days passed
              between his first arraignment on November 5, 2004, and
              his conditional guilty plea on June 10, 2005. The
              appellant is further correct that May 4, 2005 was 180 days
              from November 5, 2004. The appellant’s speedy trial
              argument must fail, however, because of two admissions
              made by the appellant in his brief. First, the appellant
              admits that ten days must be tolled on the speedy trial
                                                                       (continued...)

                                          2
2007). The Wyoming Supreme Court denied Scott’s subsequent request for

rehearing. Scott then motioned for post-conviction collateral relief from the

Wyoming state courts, which was denied.

      Before the federal district court, Scott raised three issues relating to his

speedy trial right: (1) “[w]hether the State of Wyoming adopted Procedural

Mechanism for enforcing the Constitutional Speedy trial right,” ROA, App’x at 7;

(2) “[w]hether the District Court failed to extend prior time for Speedy trial,” id.

at 8; and (3) “[w]hether the Public Defenders office failed to provide adequate

representation,” id. at 9. The district court denied Scott’s petition. Scott has

since filed a timely notice of appeal, as well as an application for a COA.

      2
          (...continued)
                clock because the appellant initially pled guilty by reason
                of mental illness or defect according to W. R. Cr. P.
                48(b)(3)(A), therefore the 180 day speedy trial clock
                lapsed on May 14, 2005.              Next, the appellant
                acknowledges that the delay from May 16 until his guilty
                plea on June 10 was due to a change of his counsel, which
                delay tolled the computation of time under W. R. Cr. P.
                48(b)(3)(D); . . .

               In the instant case, May 14, 2005 fell on a Saturday,
               therefore, the State had until the following Monday, May
               16, to bring the appellant to trial. As admitted by the
               appellant, however, he required a continuance of the May
               16 trial date in order to change counsel and that
               continuance tolled the time under Rule 48. Due to this
               continuance, his trial was reset to begin on June 13;
               however, he lost his motion to dismiss on June 10 and he
               pled guilty later that day.

Scott, 153 P.3d at 911.

                                            3
                                           II

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

336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “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 that showing, a prisoner must

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) (internal quotations omitted).

                                          III

      Scott seeks a COA with respect to the three issues raised in his federal

habeas petition. For the reasons that follow, we conclude that he has failed to

satisfy the standards for issuance of a COA with respect to any of these issues.

      Scott’s first and second grounds for relief are focused solely on violations

of state law, which, as the district court recognized, cannot form the basis for

federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is

not the province of a federal habeas court to reexamine state-court determinations

on state-law questions. In conducting habeas review, a federal court is limited to

deciding whether a conviction violated the Constitution, laws, or treaties of the

                                           4
United States.”). Because Scott’s claims involve purely matters of state law, they

cannot serve as grounds for federal habeas relief.

      A petitioner may be entitled to habeas relief, however, if he shows that the

alleged violations of state law resulted in a denial of due process. Hicks v.

Oklahoma, 447 U.S. 343, 346 (1980). After examining the record on appeal, we

agree with the district court’s determination that Scott has not demonstrated that

his due process rights were violated by a Sixth Amendment speedy trial violation.

See Barker v. Wingo, 407 U.S. 514, 530 (1972) (setting forth a balancing test for

approaching Sixth Amendment speedy trial cases, with four factors: “[l]ength of

delay, the reason for the delay, the defendant’s assertion of his right, and

prejudice to the defendant,” and noting that the length of delay must be

presumptively prejudicial); see, e.g., Harvey v. Shillinger, 76 F.3d 1528, 1533

(10th Cir. 1996) (listing Tenth Circuit cases finding delays of up to eight months

not presumptively prejudicial). Scott has not shown, by clearly established

Supreme Court precedent, that Wyoming’s decision on direct appeal resulted in

any fundamental unfairness or otherwise denied him due process of law. We

therefore find that no reasonable jurist could debate the district court’s resolution

of Scott’s first two claims.

      Scott’s final ground for relief arguably states a claim for ineffective




                                          5
assistance of counsel. 3 Scott claimed that his trial counsel “failed to keep track of

his 180 days” and failed to notify him “that a continuance would be needed and

that his signature would be needed.” ROA, App’x at 9. Claims of ineffective

assistance of counsel are governed by the Supreme Court’s decision in Strickland

v. Washington, 466 U.S. 668 (1984). To support such a claim, a defendant must

show that his attorney’s performance “‘fell below an objective standard of

reasonableness’ and that the unreasonably deficient performance resulted in

prejudice.” Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting

Strickland, 466 U.S. at 688, 691-92). As the district court found, however, and as

we note above, there is no colorable claim of a Sixth Amendment speedy trial

violation, and therefore there is no objectively unreasonable performance by

Scott’s counsel.

                                         IV

      After carefully reviewing Scott’s appellate pleadings and the record on

appeal, we conclude he has failed to establish that “reasonable jurists could


      3
         It is not clear that Scott makes this claim, because the substance of
Scott’s brief speaks entirely to the Wyoming courts’ application of Rule 48 of the
Wyoming Rules of Criminal Procedure and not to his trial counsel’s performance.
Because of his pro se status, however, we will construe Scott’s pleadings liberally
and evaluate an ineffective assistance of counsel claim.
      It is also unclear that Scott has exhausted an ineffective assistance of
counsel claim before the Wyoming courts. Nevertheless, we can deny Scott’s
claim on the merits without requiring proof of exhaustion. See 28 U.S.C. §
2254(b)(2) (permitting a federal court to deny relief on the merits of an
unexhausted claim).

                                          6
debate whether” his habeas petition “should have been resolved in a different

manner or . . . w[as] adequate to deserve encouragement to proceed further.”

Slack, 529 U.S. at 484 (internal quotations omitted).

      We therefore DENY Scott’s request for a COA and DISMISS the matter.


                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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