                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 26, 2009
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



CHRISTOPHER ARMIJO,

              Petitioner - Appellant,

v.                                                      No. 08-2266
                                                      (D. New Mexico)
RICK LOONEY, Warden;                        (D.C. No. 07-CV-00105-MCA-LAM)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Appellant, Christopher Armijo, seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas corpus application. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal

may be taken from a final order disposing of a § 2254 application unless the

petitioner first obtains a COA). Because Armijo has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      Armijo was convicted by a New Mexico jury of armed robbery, conspiracy

to commit armed robbery, aggravated assault, conspiracy to commit aggravated
assault, tampering with evidence, conspiracy to commit tampering with evidence,

and contributing to the delinquency of a minor. On direct appeal, the New

Mexico Court of Appeals reversed Armijo’s convictions for tampering with

evidence, conspiracy to tamper with evidence, and conspiracy to commit

aggravated assault. The state district court amended Armijo’s sentence to

seventeen years’ imprisonment followed by two years’ parole. Armijo then filed

a pro se petition for writ of habeas corpus with the New Mexico district court

raising, inter alia, several double jeopardy claims and a plethora of ineffective

assistance of counsel claims. The habeas petition was denied and the New

Mexico Supreme Court denied Armijo’s petition requesting a writ of certiorari.

      Armijo filed the instant § 2254 application on January 29, 2007, seeking

relief based on allegations of: (1) ineffective assistance of trial counsel, (2)

prosecutorial misconduct, (3) admission of hearsay, (4) insufficient evidence to

support the conspiracy-to-commit-armed-robbery conviction, and (5) three double

jeopardy violations. The federal magistrate judge conducted an exhaustive review

of each of Armijo’s claims, independently combing the record for information

omitted from both Armijo’s habeas application and Respondents’ perfunctory

answer. Applying the standard set forth in the Antiterrorism and Effective Death

Penalty Act, the magistrate judge recommended denying Armijo’s § 2254

application because the state courts’ adjudication of Armijo’s claims was not

contrary to, nor an unreasonable application of clearly established federal law. 28

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U.S.C. § 2254(d); Stevens v. Ortiz, 465 F.3d 1229, 1235 (10th Cir. 2006) (“When

we review a summary disposition by a state court, we focus on its result rather

than any reasoning.”). After reviewing the magistrate judge’s comprehensive

Proposed Findings and Recommended Disposition and considering Armijo’s

objections, the district court adopted the recommended ruling and denied

Armijo’s § 2254 application.

      In his counseled appellate brief, Armijo presents three specific issues which

include allegations (1) the district court erroneously refused to accept exhibits

attached to his objections, (2) the district court improperly applied the AEDPA

standard of review, and (3) he was entitled to an evidentiary hearing. To receive

a COA, Armijo 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 “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.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In

evaluating whether Armijo has satisfied his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El at 338. Although Armijo 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. (quotations omitted).

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

brief, the magistrate judge’s Proposed Findings and Recommended Disposition,

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 Armijo is not

entitled to a COA. The district court’s resolution of Armijo’s claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Because Armijo’s claims were capable of being resolved on the

record, the district court did not abuse its discretion by failing to hold an

evidentiary hearing. See Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).

Further, the district court did not err in refusing to consider Armijo’s exhibits. It

is clear from the detailed report that the district court considered the factual bases

underlying Armijo’s claims. Armijo fails to identify any information in the

exhibits that raises any doubt as to the correctness of the district court’s decision

to deny the § 2254 application. Neither did the court err by applying the AEDPA

standard of review. Armijo himself admits the New Mexico courts decided his

claims on the merits. See Stevens, 465 F.3d at 1235.

      Because Armijo has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This




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

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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