                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    May 9, 2012
                                TENTH CIRCUIT
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court

 EDWARD MONTOUR,

              Petitioner - Appellant,
                                                          No. 11-1526
 v.                                             (D.C. No. 1:11-CV-02404-MSK)
                                                         (D. Colorado)
 TOM CLEMENTS, Executive Director of
 the Colorado Department of Corrections,

              Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Edward Montour, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) so he can appeal the district court’s denial of

his 28 U.S.C. § 2241 petition. In 2003, Montour pleaded guilty to a Colorado

charge of first degree murder. After a Colorado state judge sentenced him to

death, Montour appealed. The Colorado Supreme Court affirmed Montour’s

guilty plea but reversed his sentence, declaring unconstitutional that portion of

the Colorado death penalty statute requiring “a defendant to waive his Sixth

Amendment right to a jury trial on all facts essential to the death penalty

eligibility determination when he pleads guilty.” People v. Montour, 157 P.3d

489, 491 (Colo 2007). Because Montour did not challenge his conviction or
guilty plea, the Colorado Supreme Court remanded the matter back to the district

court solely for resentencing before a jury. Id. at 491-92.

      Montour then filed the instant § 2241 petition with the United States

District Court for the District of Colorado. He argues any resentencing will

subject him to double jeopardy and, thus, would be unconstitutional because the

Colorado crime of first degree murder is a lesser included offense of capital

murder. In other words, he asserts jeopardy attached to the lesser crime of first

degree murder when he entered his guilty plea and any resentencing would

essentially be a trial on the greater offense of capital murder. The district court

rejected Montour’s argument, engaging in a comprehensive discussion of recent

Supreme Court jurisprudence. See Sattazahn v. Pennsylvania, 537 U.S. 101

(2003), Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New Jersey, 530 U.S.

466 (2000). The court highlighted the “fallacy” of Montour’s argument by

remarking that death penalty schemes containing separate guilt and penalty phases

would be wholly precluded under his argument. By way of example, the court

noted that despite Montour’s reliance on the plurality opinion in Sattazahn, in that

case the Supreme Court affirmed the death sentence imposed during a penalty

phase proceeding held after retrial. See 537 U.S. at 116. Accordingly, the district

court denied Montour’s § 2241 petition.

      This court will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” Id. § 2253(c)(2). To satisfy this

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standard, Montour must demonstrate “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 v. Cockrell, 537 U.S. 322, 327 (2003). Montour is not

required to demonstrate that his appeal will succeed to be entitled to a COA. He

must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted).

      This court has reviewed Montour’s application for a COA and appellate

brief, the district court’s order and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Montour is

not entitled to a COA. The district court’s resolution of Montour’s double

jeopardy claim is not reasonably subject to debate and the claim is not adequate to

deserve further proceedings. Accordingly, Montour is not entitled to a COA. 28

U.S.C. § 2253(c)(2).

      This court denies Montour’s request for a COA and dismisses this appeal.

Montour’s motion to proceed in forma pauperis on appeal is granted.

                                                 ENTERED FOR THE COURT


                                                 Michael R. Murphy
                                                 Circuit Judge




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