                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                     November 25, 2008
                      UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                   TENTH CIRCUIT                         Clerk of Court



 CHARLES J. STOUT,

               Petitioner - Appellant,

 v.                                                           No. 08-1311
                                                    (D. Ct. No. 08-CV-01358-ZLW)
 RON WAGER, (Acting Warden); JOHN                              (D. Colo.)
 SUTHERS, Attorney General of the State
 of Colorado,

               Respondents - Appellees.


             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TACHA, KELLY, and McCONNELL, Circuit Judges.


       Petitioner-Appellant Charles J. Stout, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to appeal from the dismissal of his habeas

petition under 28 U.S.C. § 2254. We take jurisdiction under 28 U.S.C. § 1291, DENY

Mr. Stout’s request for a COA, and DISMISS this appeal.

                                   I. BACKGROUND

       Mr. Stout pleaded guilty to one count, naming eight victims, of sexual assault on a

child by one in a position of trust. Under the terms of the plea agreement, he was

sentenced to sixteen years to life in prison. He later sought to vacate his conviction and

sentence under Colorado Rule of Criminal Procedure 35, contending that his conviction
was invalid because it was based on his uncorroborated confession and that he should be

resentenced because (1) he had been identified as a sexually violent predator for future

sex offender registration purposes based on an incomplete sex offender evaluation and (2)

his sentence was imposed in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000)

and Blakely v. Washington, 552 U.S. 296 (2004). The trial court denied Mr. Stout’s Rule

35 motion, and the Colorado Court of Appeals affirmed. The court of appeals held that

Mr. Stout did not raise the confession issue on appeal, that his sex-offender argument was

time-barred, and that Apprendi and Blakely were inapplicable as his sentence did not

exceed the applicable statutory sentence of life in prison. The Colorado Supreme Court

denied a writ of certiorari.

       Mr. Stout then filed a § 2254 petition in federal district court. The magistrate

judge ordered him to file an amended petition clarifying his claims. He did so, but the

district court nonetheless determined, even after construing the amended petition

liberally, that he had failed to identify clearly any federal constitutional claims.

Specifically, the district court reasoned that Rule 4 of the Rules Governing Section 2254

Cases in the United States District Court requires more than notice pleading, and that Mr.

Stout had not alleged facts in support of his bare constitutional violations. The district

court dismissed the petition without prejudice and denied a COA. Mr. Stout now seeks a

COA from this court.

                                     II. DISCUSSION

       Mr. Stout may not appeal from the district court’s dismissal of his petition without

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first obtaining a COA. 28 U.S.C. § 2253(c)(1). We will issue a COA “only if the

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

§ 2253(c)(2). When the district court denies the petitioner’s claim on the merits, “[t]he

petitioner 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). When the petition is denied on procedural grounds, the petitioner must

demonstrate “that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

       Reasonable jurists could not disagree with the district court’s assessment of Mr.

Stout’s amended petition. That petition lists the following claims: “(1) Not all test were

complete that was required for the sexual evaluation (2) sentance aggravated by the Judge

and not a Jury (3) sentanced on my confession only.” As supporting facts, the petition

refers to an attached page from Colorado’s Sex Offender Treatment and Monitoring

Program Manual describing the penile plethysmograph and Able Screen, and to attached

pages from the transcript of Mr. Stout’s plea hearing in which his attorney informs the

court that Mr. Stout confessed to the count of conviction in that he admitted he had sexual

contact, including intercourse, with the named victims. As the district court concluded,

the petition does not identify specific constitutional claims and does not allege facts in

support of the claims it does identify. Moreover, even if we construe the petition as

raising a Sixth Amendment claim under Apprendi and Blakely, it is clear that such a claim

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is meritless. In Blakely, the Supreme Court held that Apprendi prohibits a court from

enhancing a defendant’s sentence beyond the maximum sentence supported by facts

found by the jury or admitted by the defendant. See Blakely, 542 U.S. at 303 (“[T]he

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.”). In this case, however, Mr. Stout both stipulated to a sixteen-year-to-life

sentence and admitted the facts underlying his conviction and sentence. Apprendi and

Blakely are therefore inapplicable.

                                      III. CONCLUSION

       Because Mr. Stout has not demonstrated that jurists of reason would find it

debatable whether his § 2254 petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court correctly

dismissed the petition on procedural grounds, we DENY his application for a COA. We

GRANT his request to proceed in forma pauperis on appeal.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




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