                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          APR 8 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 JAMES PATRICK BOLTON,

              Petitioner-Appellant,                     No. 04-1170
       v.                                               (D. Colorado)
 LARRY REED, Warden; ATTORNEY                    (D.C. No. 03-B-283) (PAC)
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents-Appellees.




                                      ORDER


Before KELLY, BALDOCK, and HENRY, Circuit Judges.


      James Patrick Bolton, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s decision denying

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr. Bolton also seeks

to proceed in forma pauperis (IFP) in this appeal. In a previous order, we

concluded that Mr. Bolton was not entitled to a COA and was not entitled to

proceed IFP, and we dismissed the appeal. See Bolton v. Reed, No. 04-1170,

2004 WL 2407143 (10th Cir. Oct 28, 2004).

      Subsequently, Mr. Bolton filed a petition for rehearing in which he

challenged the denial of a COA and also alleged that Judge Tymkovich should
recuse from the case because he had served as Colorado Solicitor General during

part of the period when criminal proceedings against Mr. Bolton were pending in

the Colorado state courts. Judge Tymkovich then decided to recuse, and we

therefore granted Mr. Bolton’s petition for rehearing for the limited purpose of

allowing Judge Tymkovich’s recusal. We also vacated the order issued on

October 28, 2004, recalled the mandate, and randomly assigned another judge to

hear this matter.

      Upon review of Mr. Bolton’s allegations, we now reaffirm the conclusions

set forth in the October 28, 2004 order. We treat Mr. Bolton’s petition for

rehearing as a supplemental brief and note that, except for the matters we discuss

below, Mr. Bolton’s petition raises arguments that were properly rejected by the

district court. Accordingly, we DENY Mr. Bolton’s application for a COA and

his motion to proceed IFP, and we DISMISS this appeal.



                                I. BACKGROUND

       Mr. Bolton’s § 2254 petition arises out of his Colorado conviction of one

count of second-degree kidnaping, three counts of second-degree burglary, and

three counts of sexual assault on a child. Mr. Bolton received a sentence of 172

years in prison for these convictions. The Colorado Court of Appeals affirmed

Mr. Bolton’s convictions and sentence on direct appeal, and the Colorado


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Supreme Court denied his petition for a writ of certiorari. Subsequently, Mr.

Bolton filed post-conviction motions in the Colorado trial court. The trial court

denied his motions, and the Colorado Court of Appeals affirmed those rulings.

The Colorado Supreme Court then denied Mr. Bolton’s petition for a writ of

certiorari in the post-conviction proceedings.

      In the instant § 2254 action, Mr. Bolton raised the following claims: (1)

his trial attorney provided ineffective assistance of counsel in violation of the

Sixth Amendment by failing to allow him to participate in formulating defense

strategy and failing to advise him whether he should testify; (2) his attorney on

direct appeal provided ineffective assistance by failing to raise certain issues and

by ineffectively arguing the claims that he did raise; (3) his attorney in the state

post-conviction proceedings provided ineffective assistance; (4) his attorney in

the appeal of the post-conviction proceedings provided ineffective assistance; (5)

an impermissbly suggestive lineup and limited cross examination deprived him of

his rights to due process, equal protection, and confrontation; (6) perjury by a

prosecution witness and alteration of the transcripts to conceal the perjury

deprived him of those same rights; (7) the trial court erred in allowing evidence

of similar transactions and thereby violated those same rights; (8) the trial

court’s error in allowing hearsay testimony of a child violated those same rights;

(9) the bias of the trial court violated his due process, equal protection, and



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Eighth Amendment rights; (10) the Colorado statute regarding evidence of

similar acts is unconstitutionally vague and was applied in a manner that violated

his rights to due process, equal protection, and confrontation; (11) the denial of

his right to testify violated his rights to due process, equal protection, and

confrontation; (12) the trial court’s cumulative errors deprived him of those same

rights.

          The magistrate judge concluded that Mr. Bolton’s third and fourth

claims—that he received ineffective assistance of counsel in the post-conviction

proceedings and resulting appeal—did not allege violations of federal rights and

were thus not cognizable in a § 2254 proceeding. See Rec. doc. 30, at 4

(Recommendation, filed Jan. 30, 2004). As to Mr. Bolton’s remaining claims,

the magistrate judge concluded that Mr. Bolton had failed to exhaust them in the

Colorado courts and that they were procedurally barred as a result. The

magistrate judge further concluded that Mr. Bolton had failed to demonstrate

either cause and prejudice or a fundamental miscarriage of justice excusing the

procedural bar. Upon de novo review, the district court adopted the magistrate

judge’s recommendation and dismissed Mr. Bolton’s petition.




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                                II. DISCUSSION

              A. Application for a COA and Motion to Proceed IFP

      To appeal the district court’s denial of his § 2254 petition, Mr. Bolton

must obtain a COA by making “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Bolton may make this

showing by demonstrating that “‘reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.’” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473,

484 (2000)). “[A] claim can be debatable even though every jurist of reason

might agree, after the COA has been granted and the case has received full

consideration, that [the] petitioner will not prevail.” Id. Moreover, because he

seeks to proceed IFP in this appeal, Mr. Bolton must also demonstrate a financial

inability to pay the required fees and “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” McIntosh v. United

States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation

marks omitted).

      For substantially the same reasons set forth by the magistrate judge, we

conclude that Mr. Bolton is not entitled to a COA and is not entitled to proceed

IFP. The magistrate judge’s recommendation reflects a careful analysis of the



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record and is supported by the applicable law. Mr. Bolton’s appellate brief does

not present a colorable argument undermining the magistrate judge’s conclusion

that most of his claims were unexhausted and procedurally barred and that his

claims regarding ineffective assistance of post-conviction counsel are not

cognizable in a § 2254 proceeding. Although Mr. Bolton again alleges that many

of his claims were not exhausted because of his post-conviction counsel’s

deficiencies, the ineffective assistance of counsel in post-conviction proceedings

does not constitute cause by which a § 2254 petitioner may avoid the procedural

bar. See Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997).



                            B. Petition for Rehearing

      In his petition for rehearing, Mr. Bolton argues that pursuant to the United

States Supreme Court’s recent ruling in Blakely v. Washington, 124 S.Ct. 2531

(2004), the sentencing judge violated his Sixth Amendment rights by increasing

his sentence based upon aggravating circumstances not found by the jury.

However, this circuit has held that “Blakely does not apply retroactively to

convictions that were already final at the time the Court decided Blakely, June

24, 2004.” United States v. Price, No. 04-7058, 2005 WL 535361 (10th Cir. Mar

08, 2005). Mr. Bolton’s convictions were final by that date, and thus he cannot

succeed on his Blakely claim.



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      Mr. Bolton also observes that the same Colorado Assistant Attorney

General represented the government in the state and federal proceedings, and he

argues that this continued representation was “not only highly improper, but

prejudicial.” Petition for Rehearing, at 12. We disagree. It is not improper for

the same attorney to represent the state on direct appeal and in post-conviction

proceedings.

      Finally, as noted above, the other argument raised by Mr. Bolton in

support of his petition for rehearing were properly rejected by the district court

for the reasons stated in the magistrate’s well-reasoned recommendation.



                          C. Motion to Appoint Counsel

      Mr. Bolton has also renewed his motion to appoint counsel. Mr. Bolton’s

claims are clearly lacking in merit, and there is thus no reason to appoint

counsel.



                                III. CONCLUSION

      For substantially the same reasons set forth in the magistrate’s

recommendation we DENY Mr. Bolton’s application for a COA and DENY Mr.




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Bolton’s motion to proceed IFP. We also DENY Mr. Bolton’s Motion to

Appoint Counsel, and we DISMISS this appeal. 1



                                     Entered for the Court,



                                     Robert H. Henry
                                     Circuit Judge




      1
        We also overrule Mr. Bolton’s Objection to the Order of the United
States Court of Appeals for the Tenth Circuit, filed February 25, 2005.

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