                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             DEC 6 2004
                                 TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                 Clerk

 JIMMY DEAN MEINHARD,

              Petitioner - Appellant,                      No. 04-4098
       v.                                         (D.C. No. 2:02-CV-878-TC)
 CLINT FRIEL, Warden,                                       (D. Utah)

              Respondent - Appellee.


                                        ORDER


Before BRISCOE , McKAY , and HARTZ , Circuit Judges.


      Applicant Jimmy Dean Meinhard was convicted of murder and tampering

with evidence in Utah state court. The conviction was affirmed on direct appeal

by the Utah Court of Appeals. The Supreme Court of Utah denied his petition for

a writ of certiorari. He then filed in federal district court an application for a writ

of habeas corpus which the court denied. He seeks a certificate of appealability

(COA) to review the district court’s rejection of his claim that he was denied due

process by the state’s loss or destruction of exculpatory evidence. The district

court denied the claim on the ground that Applicant had failed to prove by clear

and convincing evidence that the state court had clearly erred in finding that no
evidence was lost. Because reasonable jurists would not disagree on the merits of

Applicant’s claim, we deny his application for a COA.

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the prisoner “must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in determining

whether to issue a COA, a “full consideration of the factual or legal bases

adduced in support of the claims” is not required. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). Instead, the decision must be based on “an overview of the

claims in the habeas petition and a general assessment of the merits.” Id.

      The Utah trial court found that the allegedly lost or destroyed hair and fiber

evidence had never existed. Utah v. Meinhard, 2001 WL 1243357 at *1 (Utah

App. Oct. 18, 2001). The state court of appeals held that “the evidence supports

the trial court’s finding that no evidence was lost.” Id. Our review of a state

court’s findings of fact in a habeas proceeding is governed by 28 U.S.C.

§ 2254(e)(1), which states:

      In a proceeding instituted by an application for a writ of
      habeas corpus by a person in custody pursuant to the judgment
      of a State court, a determination of a factual issue made by a
      State court shall be presumed to be correct. The applicant

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       shall have the burden of rebutting the presumption of
       correctness by clear and convincing evidence.

The district court, applying the proper standard of review, concluded that

Applicant failed to rebut the presumption, noting that he “has suggested nothing

whatsoever in the evidence that would put in question the trial court’s reasoned

consideration of the testimony it heard.” Dist. Ct. Op. at 10-11. Applicant has

failed again in this regard in his brief to this court.

       No jurist of reason can disagree with the district court’s conclusion that

Applicant failed to make a substantial showing of a violation of a constitutional

right. Consequently, we DENY the application for a COA and DISMISS the

appeal.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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