                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 26, 2008
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT



 BRIAN LEE,

          Petitioner-Appellant,
 v.                                                      No. 07-1447
 JOE ORTIZ, Executive Director,               (D.C. No. 06-CV-705-LTB-MEH)
 Colorado Department of Corrections;                    (D. Colorado)
 AL ESTEP, Warden; JOHN
 SUTHERS, Attorney General of the
 State of Colorado,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Brian Lee, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2254 petition for writ of habeas corpus. Because Lee has failed to

satisfy the standards for the issuance of a COA, we must deny his request and

dismiss the matter.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                          I.

      The underlying facts that led to Lee’s convictions are summarized in

People v. Lee, 914 P.2d 441, 443 (Colo. App. 1995); it is unnecessary to repeat

them in detail here. In 1993, Lee was convicted by a jury of first degree extreme

indifference murder, three counts of attempted first degree extreme indifference

murder, second degree assault, conspiracy to commit first degree assault, and

conspiracy to commit menacing. On direct appeal, the Colorado Court of Appeals

vacated the conviction for attempted murder pertaining to the victim of the second

degree assault, and affirmed the remaining convictions. The Colorado Supreme

Court denied certiorari. Lee then filed a motion for post-conviction relief in state

court pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. The

state district court denied relief and the order of denial was affirmed on appeal.

Lee subsequently filed a second state-court motion for post-conviction relief

under Rule 35(c), which was also denied.

       Lee then filed this § 2254 habeas petition, presenting five claims for

relief: (1) the trial court’s jury instruction on complicity permitted conviction

upon a lesser standard of proof than required by law; (2) his trial counsel was

constitutionally ineffective; (3) he was denied due process because the trial court

refused to grant a new trial based on newly discovered evidence; (4) the trial

court used a constitutionally defective theory of the case which relied on

insufficient evidence and resulted in inconsistent verdicts; and (5) his right to

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equal protection of the laws was violated by the complicity instruction. On May

24, 2007, a United States magistrate judge filed a report recommending that Lee’s

petition be denied and the case dismissed with prejudice. The report addressed

each of Lee’s arguments in turn, concluding that the complicity instruction had no

effect on the outcome at trial; that the credibility determinations of the trial court

showed that trial counsel was not ineffective; and that newly discovered evidence

was not grounds for habeas relief where the conviction was supported by

substantial evidence. The magistrate judge further concluded that Lee’s latter two

claims were procedurally barred because the issues they raised had been defaulted

in state court on state procedural grounds.

      In an Order dated August 6, 2007, the district court, having reviewed the

magistrate’s report and Lee’s objections to it, denied Defendant’s § 2254 petition

and dismissed the case. The district court subsequently denied Lee’s request for a

COA. Lee has renewed his request for a COA with this court, and has also filed a

motion to proceed in forma pauperis on appeal.

                                           II.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2). In order to make that showing, a prisoner must

demonstrate “that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274,

282 (2004) (internal quotation marks omitted).

      After reviewing the record, we conclude that Lee is not entitled to a COA.

The magistrate judge’s report thoroughly explains why Lee is not entitled to

habeas relief. The state courts applied the Supreme Court’s clearly established

precedents to the facts in an objectively reasonable manner. See Brown v.

Payton, 544 U.S. 133, 141 (2005). We further agree with the magistrate judge

and the district court that Lee’s last two claims were procedurally barred because

they were “defaulted in state court on an independent and adequate state

procedural ground.” Maes v. Thomas, 45 F.3d 979, 985 (10th Cir. 1995). No

reasonable jurist could disagree as to these matters.

      The motion for leave to proceed on appeal in forma pauperis and the

request for a COA are DENIED and the appeal is DISMISSED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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