                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           June 22, 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 FREDERICK BILL YAZZIE,

       Petitioner-Appellant,

 v.                                                     No. 04-2299
                                                 (D.C. No. CIV-03-963 JH/LCS)
 LANE BLAIR,                                              (D. N.M.)

       Respondent-Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Frederick Bill Yazzie, a state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254

petition. For substantially the same reasons set forth by the district court, we

DENY Yazzie’s request for a COA and DISMISS.

      Yazzie was convicted in New Mexico state court of two counts of criminal

sexual penetration, aggravated residential burglary, aggravated battery,

kidnapping, intimidation of a witness, and assault with intent to commit a violent

felony. He was sentenced to thirty-nine years’ imprisonment. In directly

appealing his conviction, Yazzie assigned four claims of error, all of which were

denied on the merits. He then filed a petition for writ of habeas corpus in state
court, raising thirty-four grounds for relief; the state district court denied all

claims as a matter of law, and the Supreme Court of New Mexico denied

certiorari. Within the one-year limitation period, Yazzie filed a § 2254 petition

repeating verbatim the thirty-four claims raised in his state petition. The

magistrate judge grouped Yazzie’s claims into eight categories: (1) ineffective

assistance of trial counsel by Maria Rodriguez; (2) ineffective assistance of trial

counsel by Bruce Fox; (3) ineffective assistance of trial counsel by Alan E.

Whitehead; (4) ineffective assistance of appellate counsel by Will O’Connell;

(5) prosecutorial misconduct; (6) judicial misconduct; (7) insufficient evidence to

support Yazzie’s conviction; and (8) imposition of an illegal sentence.

      Under AEDPA, if a claim is adjudicated on the merits in state court, a

federal court will grant habeas relief only if that adjudication resulted in a

decision “that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States” or “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

After thoroughly reviewing Yazzie’s claims in light of this demanding standard in

a 38-page recommended disposition, the magistrate judge recommended that

Yazzie’s petition be dismissed with prejudice and that his request for an

evidentiary hearing be denied. Over Yazzie’s objection, the district court adopted


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the magistrate judge’s proposed findings and recommended disposition and

dismissed Yazzie’s petition. His request for a COA having been denied below, he

now seeks a COA from this court, presenting the same arguments as he presented

below. 1

       After careful review of Yazzie’s application, the magistrate judge’s

proposed findings and recommended disposition, the district court’s order denying

relief, and the material portions of the record on appeal, we conclude that

Yazzie’s claims are without merit. Accordingly, Yazzie has failed to make “a

substantial showing of the denial of a constitutional right.” § 2253(c)(2).

Because we determine, for substantially the same reasons as the district court, that

the state court’s resolution of these issues was   a reasonable application of clearly

established federal law, based on a reasonable determination of the facts in light



       1
         Yazzie’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of 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.” § 2253(c)(2). This requires Yazzie to show “that 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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Yazzie a COA,
he may not appeal the district court’s decision absent a grant of COA by this
court.

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of the evidence presented in the state court proceeding, Yazzie’s application for a

COA is DENIED and the appeal is DISMISSED.



                                             ENTERED FOR THE COURT


                                             Carlos F. Lucero
                                             Circuit Judge




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