                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     October 5, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


BIVIAN B. RA M IREZ,

             Petitioner - A ppellant,

v.                                                        No. 06-2023
                                                   (District of New M exico)
JOSE ROM ERO, W arden; and                      (D.C. No. CIV-05-768 JH/AC T)
PA TRIC IA A . M A D RID ,

             Respondents - Appellees.




                                        ORDER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      This matter is before the court on Bivian Ramirez’s pro se request for a

certificate of appealability (“COA”). Ramirez, a state prisoner, seeks a COA so

he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition. 28 U.S.C. § 2253(c)(1)(A). Because Ramirez has not “made a

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

2253(c)(2), this court denies his request for a COA and dismisses this appeal.

      Ramirez pleaded guilty in New M exico state court to one felony count of

driving under the influence of alcohol or drugs; one misdemeanor count of driving

with a suspended license; and one misdemeanor count of resisting, evading, or
obstructing a police officer. After exhausting his state court remedies, Ramirez

filed a series of pleadings, which the district court treated as a single, omnibus

motion for habeas corpus relief pursuant to § 2254. In his request for habeas

relief, Ramierz raised the following claims: (1) his sentence was illegal because it

was based on previous DUI convictions that were over ten years old and/or

occurred outside of the state of N ew M exico; (2) his sentence violated the Ex Post

Facto Clause because the law imposing heightened sentences on a sixth DUI

conviction was not in effect at the time he committed the instant offense; (3) his

sentence was illegal because the statute imposing heightened penalties for a sixth

DUI conviction made the crime a fourth-degree felony and he was sentenced as if

he had committed a third-degree felony; (4) he was denied his Fifth, Sixth, and

Fourteenth Amendment rights because he was not present on the day his judgment

and sentence was officially entered on the record; (4) his trial counsel was

ineffective because he failed to adequately research the law and failed to file an

appeal.

      In a series of reports and recommendations, a magistrate judge

recommended that the district court deny relief. Upon de novo review, the district

court adopted the magistrate judge’s recommendations, concluding as follows: (1)

Ramirez’s claims regarding the use of old and/or out-of-state D UI convictions to

enhance his present sentence failed as a matter of New M exico law and Ramirez

had not alleged New M exico law was otherwise inconsistent with the

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Constitution; (2) Ramirez’s ex post facto claim also failed as a matter of state

law , as the New M exico Supreme Court had specifically held that the statute

under w hich Ramirez was punished was in effect at the time he committed his

crime; (3) Ramirez’s claim he was improperly sentenced as if he committed a

third-degree felony failed as a matter of state law because the document Ramirez

relied on to make his claim was a version of the bill as it existed before it was

ultimately amended and then enacted, as amended, by the New M exico

Legislature; (4) Ramirez’s claim he w as not present at sentencing failed because

Ramirez was in court when sentence was imposed and the official entry of that

judgment and sentence on the record at a later date was a mere ministerial act at

which Ramirez’s presence was not required; and (5) Ramirez’s ineffective

assistance claims failed because all of his challenges to the propriety of his

sentence failed on the merits and counsel’s failure to file an appeal was entirely

consistent with Ramirez’s state-court waiver of his right to appeal.

      To be entitled to a COA, Ramirez 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 “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.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Ramirez has satisfied his burden, this court

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undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Ramirez need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Ramirez’s application for a COA and

appellate filings, the magistrate judge’s reports and recommendations and district

court’s orders, and the entire record before this court pursuant to the framew ork

set out by the Supreme Court in M iller-El, we conclude Ramirez is not entitled to

a COA. The district court’s resolution of Ramirez’s § 2254 petition is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. As noted by the district court,

Ramirez’s habeas claims are all based on a gross misreading of the record in this

case and the law in New M exico. Accordingly, this court DENIES Ramirez’s

request for a COA and DISM ISSES this appeal.

                                       Entered for the Court
                                       ELISABETH A. SHUM AKER, Clerk


                                       By
                                               Deputy Clerk




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