                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      November 3, 2010
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                   TENTH CIRCUIT



 KENNETH HILLS ORVIS,

           Plaintiff-Appellant,
 v.                                                            No. 10-2180
 MIKE A. HEREDIA; ATTORNEY                          (D.C. No. 1:08-CV-01121-JCH)
 GENERAL OF THE STATE OF NEW                                 (D. N. Mex.)
 MEXICO,

           Defendants-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


       Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



       Kenneth Orvis, a New Mexico state prisoner appearing pro se, seeks a certificate

of appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2254 application for federal habeas relief. Because Orvis has failed to satisfy the

standards for the issuance of a COA, we deny his request and dismiss the matter.

                                             I

       On January 11, 2007, Orvis was convicted by a jury in New Mexico state court of

twelve counts of forgery and one count of conspiracy to commit forgery. The State’s


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
evidence at trial indicated that Orvis, while staying at the residence of Clifford Bourgeois,

stole a book of blank checks belonging to Bourgeois and gave them to a woman named

Kenisha Martin. Martin, with the assistance of two other men (Sean David and J.D.

Pringle), forged and cashed twelve of the checks. Martin was charged with, and pled

guilty to, conspiracy to commit forgery and was placed on probation. Martin testified

against Orvis at trial.

        Orvis was sentenced to fourteen years’ imprisonment (six years of which were

suspended by the state trial court), to be followed by a two-year term of parole and a five-

year term of supervised probation. Orvis filed a direct appeal arguing that the evidence

presented at trial was insufficient to support his convictions. On December 14, 2007, the

New Mexico Court of Appeals (NMCA) issued a memorandum opinion affirming Orvis’s

convictions. In doing so, the NMCA “h[e]ld that the evidence presented in th[e] case was

sufficient to support the forgery convictions under an accessory theory” because “a

reasonable jury could believe that [Orvis] intended for the crime of forgery to be

committed and he helped it be committed by giving Martin the stolen checks.” ROA,

Vol. 1 at 95. As for the forgery conviction, the NMCA “conclude[d] that a jury could

find that [Orvis] and Martin [impliedly] agreed to commit forgery when [Orvis] gave her

the blank checks and that they intended to commit forgery.” Id. at 96. The New Mexico

Supreme Court subsequently denied Orvis’s petition for writ of certiorari on January 29,

2008.

        On August 4, 2008, Orvis filed a petition for state habeas relief asserting six

                                               2
grounds for relief, in particular that the evidence presented at trial was insufficient to

support his convictions and that his convictions were obtained by the knowing use of

perjured testimony. Orvis’s petition was summarily dismissed by the state district court

on September 9, 2008. On October 6, 2008, the New Mexico Supreme Court denied

Orvis’s petition for writ of certiorari.

       On December 1, 2008, Orvis initiated these federal habeas proceedings by filing a

pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. at 5. In his

first claim for relief, Orvis alleged that the evidence presented by the State at trial was

insufficient to support his convictions. In his second claim for relief, Orvis alleged that

the prosecution knowingly presented perjured testimony from Kenisha Martin. In his

third and final claim for relief, Orvis alleged that his trial counsel was ineffective in

several respects.

       On June 16, 2010, the magistrate judge assigned to the case issued a report and

recommendation concluding that Orvis’s first two claims were properly exhausted, but

that his third claim, i.e., the ineffective assistance of counsel claim, was unexhausted.

The magistrate judge recommended that Orvis be allowed to “choose to proceed

immediately on the exhausted claims . . . or . . . to wait until he . . . exhausted all of his

claims in state court before proceeding on his federal habeas.” Id. at 238. In doing so,

the magistrate judge outlined for Orvis the “risk and consequences” associated with each

choice. Id. at 239.

       On June 24, 2010, Orvis responded to the magistrate judge’s report and

                                                3
recommendation by moving to amend his application for federal habeas relief to omit the

unexhausted ineffective assistance claim. On July 8, 2010, the district court adopted the

magistrate judge’s report and recommendation, granted Orvis’s request to amend his

application, and again referred the matter to the magistrate judge for a recommendation as

to the “ultimate disposition of the case.” Id. at 245.

       On July 13, 2010, the magistrate judge issued a second report and recommendation

concluding that Orvis was not entitled to federal habeas relief. With respect to Orvis’s

claim that the evidence presented at trial was insufficient to support his convictions, the

magistrate judge concluded that “the NMCA’s decision [rejecting that claim] was neither

contrary to, nor involved an unreasonable application of, the standard set forth in

Jackson[ v. Virginia, 443 U.S. 307 (1979)], nor was it based on an unreasonable

determination of the facts in light of the evidence.” ROA, Vol. 1 at 249. As for Orvis’s

claim that the state presented perjured testimony from Martin, the magistrate judge

concluded that “Orvis fail[ed] to demonstrate either that perjured testimony was used, or

that the prosecution knew that any testimony was perjured.” Id. at 250. More

specifically, the magistrate judge concluded that the supporting evidence pointed to by

Orvis “d[id] not show that . . . Martin offered perjured testimony at . . . trial,” and that,

“[t]o the extent . . . Orvis allege[d] that . . . Martin’s trial testimony was inaccurate or

contradictory, such an allegation [wa]s merely an attack on the credibility of a witness

and d[id] not state a prima facie case of knowing use of perjured testimony.” Id.

       On August 5, 2010, the district court adopted the magistrate’s report and

                                                4
recommendation and dismissed the action with prejudice. The district court also issued

an order denying Orvis a COA. Orvis filed a notice of appeal on August 13, 2010, and

has since filed an application for COA with this court.

                                             II

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues 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.” 28 U.S.C. § 2253(c)(2). In

order to make that showing, a prisoner must demonstrate “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) (internal quotation marks

omitted).

       After reviewing Orvis’s application for COA and the record on appeal, we

conclude he has failed to make the requisite showing for the issuance of a COA.

Although Orvis continues to assert that the evidence presented at his trial was insufficient

to support his conspiracy and forgery convictions, the district court concluded the

NMCA’s analysis of Orvis’s insufficiency claims was neither “contrary to, [n]or an

unreasonable application of, clearly established federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), and we are not persuaded

                                              5
that reasonable jurists could disagree with that determination. As for Orvis’s claim that

the prosecution knowingly relied on perjured testimony from Martin, the district court

examined the trial record and concluded there was no evidence either that Martin testified

falsely, or that the prosecution knew she did so. Although Orvis disputes this

determination in his application for COA, his assertions are not, in our view, sufficient to

persuade reasonable jurists that his claim should have been resolved in a different manner

by the district court.

       The application for COA is DENIED, the appeal is DISMISSED, and Orvis’s

motion to proceed in forma pauperis on appeal is DENIED as moot.1


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Chief Judge




       1
         The district court granted Orvis leave to proceed in forma pauperis in the district
court. Therefore, Orvis “may proceed on appeal in forma pauperis on appeal without
further authorization . . . .” Fed. R. App. P. 24(a)(3).

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