                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 17, 2011
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    DAVID ELLIS,

                Petitioner-Appellant,

    v.                                                    No. 10-1295
                                                (D.C. No. 1:07-CV-02573-MSK)
    AL ESTEP, Warden, Fremont                              (D. Colo.)
    Correctional Facility; THE
    ATTORNEY GENERAL OF THE
    STATE OF COLORADO, JOHN W.
    SUTHERS,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES and McKAY, Circuit Judges, PORFILIO, Senior
Circuit Judge.



         David Ellis, a Colorado state prisoner appearing pro se, applies for a

certificate of appealability (COA) to challenge the district court’s denial of his

petition for a writ of habeas corpus, which he filed pursuant to 28 U.S.C. § 2254.

Construing Mr. Ellis’s pro se application liberally, see Cummings v. Evans,




*
      This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
161 F.3d 610, 613 (10th Cir. 1998), we deny his application for a COA, and

dismiss the appeal.

      Mr. Ellis was charged in Colorado state court with two counts of attempted

first degree extreme indifference murder, one count of first degree assault, and

one count of a crime of violence. The incident giving rise to the charges took

place during a party hosted by Mr. Ellis’s girlfriend on December 24, 1997.

When an argument broke out between Mr. Ellis and his girlfriend, her brother told

Mr. Ellis to leave. On his way out of the residence, a different brother told

Mr. Ellis that he was not welcome at the party. According to Mr. Ellis, while the

brothers were pushing him out the door, he got hit on the back of the head. As he

was stepping across the threshold, Mr. Ellis heard a bang. Although the front

door had closed behind him, Mr. Ellis turned around and fired three shots from

his gun into the door. Mr. Ellis testified that he did not direct the shots at any

particular individual. Two of the bullets struck one brother in the shoulder and

abdomen. He eventually recovered from his injuries. The other brother was

uninjured.

      The injured brother was considered a victim for one count of attempted first

degree extreme indifference murder and first degree assault. The non-injured

brother was considered a victim for the second count of attempted first degree

extreme indifference murder. Mr. Ellis was also charged with a crime of

violence, which is a sentence enhancer under Colorado law. The jury returned

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guilty verdicts on all counts. Mr. Ellis was sentenced to consecutive terms of

imprisonment on the attempted extreme indifference murder convictions totaling

thirty-six years.

      The convictions were affirmed by the Colorado Court of Appeals on direct

appeal, and the Colorado Supreme Court denied Mr. Ellis’s petition for certiorari

review. Mr. Ellis then filed a motion for post-conviction relief with the trial court

pursuant to Colorado’s rules of criminal procedure. The trial court denied his

motion, and the appellate court affirmed that denial. The Supreme Court denied

Mr. Ellis’s request for certiorari review.

      Mr. Ellis timely filed a pro se action for habeas corpus relief in the federal

district court pursuant to § 2254, on the same grounds raised in his state-court

appeals. As due process violations he alleged: (1) the evidence was insufficient

to sustain separate convictions for attempted first degree extreme indifference

murder; (2) the trial court’s misleading and confusing jury instructions regarding

self defense; (3) the trial court’s use of the jury’s guilty verdict on a crime of

violence as a sentence enhancer for both attempted first degree extreme

indifference murder convictions, when the information contained only one charge

of a crime of violence; (4) the prosecution’s failure to obtain possession and

control of the door through which the gun shots were fired and/or the trial court’s

refusal to enter an order allowing his lawyer the right to inspect the door; (5) the

convictions for attempted first degree extreme indifference murder were based on

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a multiplicitous information; (6) the trial court should have granted his motion for

a mistrial after a witness blurted out during his testimony that Mr. Ellis may have

previously shot someone; and (7) the trial court should not have admitted

evidence of his prior bad acts. As a violation of his constitutional right to

effective assistance of counsel, Mr. Ellis alleged that his trial lawyer was

deficient by failing to explore potential juror misconduct and issue a subpoena for

the door through which the gun shots were fired. 1 Last, Mr. Ellis claimed an

equal protection violation on the ground that there was no rational basis for

distinguishing his conviction for attempted first degree extreme indifference

murder involving the victim who was in fact wounded, from the crime of extreme

indifference assault, which carries less punishment. Following its review of the

merits of his claims, the district court denied Mr. Ellis’s request for habeas relief

and denied his request for a COA.



1
       In his application for a COA, Mr. Ellis cites for the first time a new
instance in which his trial lawyer was constitutionally deficient: “Counsel put
Mr. Ellis on the witness stand and ask[ed] him incriminating questions that led to
Ellis confessing on the stand that he shot reckless in the house, when his action
was direct[ed] at [the brothers].” COA at 11. See also id. at 3. Any
consideration of this alleged constitutional violation is procedurally barred
because it was never raised in his post-trial proceedings. 28 U.S.C. §
2254(b)(1)(A) (providing that a petition for a writ of habeas corpus may not be
granted unless “the applicant has exhausted the remedies available in the courts of
the State”). See also Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534
(10th Cir. 1994) (holding that to exhaust state court remedies, the applicant must
present the issue “to the highest state court, either by direct review of the
conviction or in a postconviction attack”).

                                          -4-
      “Under the Antiterrorism and Effective Death Penalty Act of 1996

(ADEPA), a COA may issue ‘only if the applicant has made a substantial showing

of the denial of a constitutional right.’” Dockins v. Hines, 374 F.3d 935, 936

(10th Cir. 2004), quoting 28 U.S.C. § 2253(c)(2). In cases such as this where the

district court addressed and rejected the constitutional claims on the merits, to

obtain a COA Mr. Ellis “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). Because “ADEPA’s deferential

treatment of state court decisions must be incorporated into our consideration of a

habeas [applicant’s] request for a COA,” Dockins, 374 F.3d at 938, we will grant

a COA “only if reasonable jurists could debate whether the [applicant] might be

eligible for habeas relief – i.e., . . . whether the state court’s decision on the

merits of the [applicant’s] constitutional claim was unreasonable or ran contrary

to clearly established federal law,” id. at 937.

      We have carefully examined Mr. Ellis’s application and the district court’s

ruling, and conclude that reasonable jurists would not find the district court’s

assessment of the constitutional claims debatable or wrong. For substantially the

same reasons set forth in the district court’s opinion and order entered July 6,

2010, we DENY Mr. Ellis’s application for a COA and DISMISS the appeal.

      The district court denied Mr. Ellis’s request for to appeal in forma pauperis

(IFP), finding that the appeal was not taken in good faith. He has renewed his

                                           -5-
IFP request in this court. Because he has not shown “the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we DENY

his application to proceed IFP.



                                              Entered for the Court


                                              John C. Porfilio
                                              Senior Circuit Judge




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