                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 7, 2014
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



HUGH WALTON,

              Petitioner - Appellant,

       v.                                                No. 14-1208
                                                        (D. Colorado)
FRANCIS FALK, Warden, L.C.F.;                   (D.C. No. 1:13-CV-00403-RM)
THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      This matter is before the court on Hugh Walton’s pro se requests for a

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

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

§ 2254 habeas corpus petition. 28 U.S.C. § 2253(c)(1)(A). We grant his request

to proceed on appeal in forma pauperis. Because he has not, however, “made a

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

court denies Walton’s request for a COA and dismisses this appeal.
      Following a jury trial in Colorado state court, Walton was convicted on

multiple criminal counts arising out of the armed robbery of a grocery store.

Thereafter, Walton filed the instant § 2254 petition raising ten claims, several of

which had multiple subparts. In two exceedingly thorough orders, the district

court determined the claims set out in Walton’s petition (1) failed to raise a

federal constitutional issue, (2) were procedurally defaulted, or (3) failed to

satisfy the standard for obtaining habeas relief set out in 28 U.S.C. § 2254(d).

Walton seeks a COA on only two of the issues he raised before the district court:

(1) his assertion he was denied due process when the Colorado Court of Appeals

refused to consider an issue on post-conviction review because, it concluded, the

issue could have been raised on direct appeal; and (2) the claim he was denied

effective assistance of counsel when counsel failed to raise a challenge to a

purported violation of Walton’s right to a speedy trial.

      The granting of a COA is a jurisdictional prerequisite to Walton’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, Walton 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

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omitted). In evaluating whether Walton 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 Walton need

not demonstrate 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.”

Id.

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

court’s thorough orders, and the entire record before this court, we conclude

Walton is not entitled to a COA. It cannot be reasonably argued the district court

erred in concluding Walton’s complaints about Colorado’s post-conviction

procedures failed to allege a violation of federal law. Sellers v. Ward, 135 F.3d

1333, 1339 (10th Cir. 1998) (holding a claim of constitutional error that “focuses

only on the State’s post-conviction remedy and not the judgment which provides

the basis for [the petitioner’s] incarceration . . . states no cognizable federal

habeas claim”); Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993) (holding

that even if otherwise preserved, the petitioner’s “claim challenging the

Oklahoma post-conviction procedures on their face and as applied to him would

fail to state a federal constitutional claim cognizable in a federal habeas

proceeding”). Likewise, the district court was undeniably correct to conclude the

state court’s factual findings, made after holding a three-day evidentiary hearing,

established Walton suffered no prejudice from trial counsel’s failure to raise a

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speedy-trial claim. 28 U.S.C. § 2254(d). Accordingly, this court DENIES

Walton’s request for a COA and DISMISSES this appeal.

                                       ENTERED FOR THE COURT


                                       Michael R. Murphy
                                       Circuit Judge




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