                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 28, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



OTIS H. LACY,

              Petitioner - Appellant,
                                                        No. 09-6095
       v.                                             (W.D. Oklahoma)
                                                 (D.C. No. 5:08-CV-01094-R)
DAVID PARKER, Warden,

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This matter is before the court on Otis Lacy’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Lacy seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Lacy’s request to proceed

on appeal in forma pauperis. Because Lacy has not, however, “made a substantial

showing of the denial of a constitutional right,” id. § 2253(c)(2), this court denies

his request for a COA and dismisses this appeal.

      A jury convicted Lacy in Oklahoma state court of Procuring Child

Pornography and Distributing Child Pornography, both after former conviction of
a felony, and two counts of Contributing to the Delinquency of a Minor. Pursuant

to the jury’s recommendation, the state trial court sentenced Lacy to ten years on

the Procuring conviction, fifteen years on the Distributing conviction, and one

year on each of the Contributing convictions. The trial court ordered the

sentences to run concurrently. On direct appeal, the Oklahoma Court of Criminal

Appeals (“OCCA”) set aside one of Lacy’s Contributing convictions on the

ground it arose out of the same act as the Distributing conviction, thereby

violating the Oklahoma statutory prohibition against multiple punishments for a

single act. Lacy v. State, No. F-2006-723, slip op. at 2 (Okla. Crim. App. May

23, 2007) (unpublished summary opinion). The OCCA further concluded the trial

court erred when it failed to instruct the jury that Lacy would not be eligible for

parole until he served eighty-five percent of his sentence. Id. at 3-5. To remedy

this error, the OCCA modified Lacy’s sentences so they would all run

concurrently. Id. at 5. Lacy then filed a Motion for Order Nunc Pro Tunc,

advising the OCCA the trial court had already ordered his sentences to run

concurrently and requesting that the OCCA modify his sentence in some favorable

way. The OCCA declined Lacy’s request, concluding “the law and evidence do

not require modification of Lacy’s sentence.” Lacy v. State, 171 P.3d 911, 913

(Okla. Crim. App. 2007).

      After exhausting his Oklahoma post-conviction remedies, Lacy v. State, No.

PC-2007-838, slip op. at 1-2 (Okla. Crim. App. Nov. 2, 2007), Lacy filed the

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instant § 2254 petition in federal district court, raising seven grounds for relief.

The matter was referred to federal Magistrate Judge Valerie Couch for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In a comprehensive and

meticulous Report and Recommendation, Magistrate Judge Couch analyzed on the

merits each ground for relief set out in Lacy’s § 2254 habeas petition and

recommended that the district court deny relief. After augmenting the already

extensive analysis set out by Magistrate Judge Couch, the district court adopted

the Report and Recommendation in its entirety and denied Lacy’s petition.

      The granting of a COA is a jurisdictional prerequisite to Lacy’s appeal

from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, Lacy must make “a substantial showing of

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

requisite showing, he must demonstrate “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.” Miller-El, 537 U.S. at 336 (quotations

omitted). In evaluating whether Lacy has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Lacy need not

demonstrate his appeal will succeed to be entitled to a COA, he must “prove




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something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Lacy’s appellate filings, the district court’s

Order, the Magistrate Judge’s well-stated Report and Recommendation, and the

entire record before this court, we conclude Lacy is not entitled to a COA. In so

concluding, this court has nothing to add to the comprehensive analysis set out by

Magistrate Judge Couch in her Report and Recommendation. Accordingly, this

court DENIES Lacy’s request for a COA and DISMISSES this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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