                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 8, 2008
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court


 FRANK A. ALVEY,

             Petitioner - Appellant,                   No. 07-2088
       v.                                             (D. New Mex.)
 JAMES JANECKA, Warden;                    (D.C. No. 2:06-CV-00446-RB-WPL)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

             Respondents - Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Frank Alvey was convicted by a jury of multiple counts of child sexual

abuse and related crimes. Having exhausted his state remedies, he filed a petition

for habeas corpus pursuant to 28 U.S.C. § 2254, raising numerous claims of error

primarily based on ineffective assistance of counsel. The magistrate judge, in a
through report, recommended Alvey’s claims be denied.

      Alvey filed objections to the report. The district court characterized

Alvey’s objections as “primarily rephras[ing] the arguments already addressed by

the magistrate judge.” (R. Doc. 43 at 1.) Applying a de novo review of the

magistrate judge’s recommendations and Alvey’s objections, the district court

construed “the objections to be without merit.” (Id.) It denied Alvey’s

application for habeas relief, his motion for an evidentiary hearing and his

subsequent request for a Certificate of Appealability (COA).

      Appearing pro se 1 and in forma pauperis, Alvey renews his request for a

COA to this Court. See 28 U.S.C. § 2253(c)(1)(A); F ED . R. A PP . P. 22(b)(1). A

COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell, 537

U.S. 322, 336 (2003). We agree “[a]n evidentiary hearing is not required because

Alvey’s claims can be resolved on the basis of the record. See Parker v. Scott,

F.3d 1302, 1324 (10th Cir. (2005)” (R. Doc. 43. at 2.) Alvey’s brief is a

reiteration of the ineffective assistance of trial counsel claims reviewed and

addressed in the magistrate judge’s proposed findings which were adopted by the

district court. We see no need to repeat those well-reasoned decisions.

      The magistrate judge’s recommendation and subsequent district court’s

dismissal were clearly, concisely and correctly stated. Jurists of reason would not


      1
       We liberally construe pro se pleadings. See Ledbetter v. City of Topeka,
Kan., 317 F.3d 1183, 1187 (10th Cir. 2003).

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disagree with the result. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). After

careful review, we agree “[a]n evidentiary hearing is not required because

Alvey’s claims can be resolved on the basis of the record. See Parker v. Scott,

F.3d 1302, 1324 (10th Cir. (2005)” (R. Doc. 43. at 2.)

      We DENY Alvey’s request for COA and DISMISS his putative appeal.

Because his appeal is being denied, no substantive relief can be granted.

                                      FOR THE COURT:

                                      Terrence L. O’Brien
                                      United States Circuit Judge




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