                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        March 29, 2006
                                TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                         Clerk of Court

 ANTHONY ALLEN DIAZ,
              Petitioner-Appellant,                     No. 05-4032
 v.                                             (D.C. No. 2:03-CV-534-DB)
 CLINT FRIEL, Warden,                                     (D. Utah)
              Respondent-Appellee.


                                      ORDER


Before HENRY, McKAY, and EBEL, Circuit Judges.




      Petitioner, a state prisoner, pleads for habeas corpus relief under 28 U.S.C.

§ 2254. After a jury trial, Petitioner was convicted of aggravated sexual abuse of

a child, aggravated kidnaping, and child kidnaping. At sentencing, the trial court

recognized that the kidnaping charges were “in the alternative” and consequently

merged Petitioner’s aggravated kidnaping conviction into his conviction for

aggravated sexual abuse of a child. The court then offered the state the choice

between sentencing Petitioner for aggravated sexual abuse of a child or child

kidnaping. The state chose child kidnaping and the court sentenced Petitioner to

fifteen years to life. Petitioner then appealed to the Utah Court of Appeals,

objecting to (1) merging the convictions, and (2) allowing the state to choose the
sentencing crime. He also claimed insufficient evidence to support a conviction

and ineffective trial counsel. The court of appeals upheld the conviction.

         Petitioner now requests federal habeas corpus relief, asserting some of the

same claims and a host of new ones, mostly concerning the insufficiency of the

evidence and trial counsel’s ineffectiveness. The district court, in a lengthy

order, found that several of Petitioner’s claims of constitutional violations–that

his due process rights were violated by the merger analysis, insufficiency of the

evidence, and failure of his counsel to suppress a photo lineup–were unexhausted

federal constitutional issues. Order, 6 (D. Utah Dec. 16, 2004). In addition, the

district court found that various other claims had been procedurally defaulted. Id.

at 10. However, the district court did consider Petitioner’s claim that “his child

kidnaping conviction is unsupported by the evidence, specifically because he

never meant to ‘keep or conceal’ the victim.” Id. at 12. In response, the court

stated that Petitioner “has suggested nothing whatsoever in the evidence to put in

question the jury’s reasoned consideration of the testimony it heard. He has

merely invited this Court to take an impermissible fresh look at the evidence.” Id.

at 13.

         The district court also considered, in great detail, Petitioner’s six

allegations of ineffective assistance of counsel. Id. at 14-27. The court found

that “Petitioner has neither argued nor shown that the Utah Court of Appeals


                                             -2-
unreasonably applied Strickland [v. Washington, 466 U.S. 668 (1984)] and its

progeny and/or made unreasonable factual determinations.” Id. at 16. The court

was unpersuaded by Petitioner’s argument and found that he had “failed to show

the prejudice required to prevail on his ineffective-assistance-of-counsel claim.”

Id. at 27.

       Petitioner now seeks from this court a certificate of appealability. The

issues he raises on appeal are identical to those brought before the district court.

To grant a certificate of appealability, Petitioner must make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (1994).

To meet this burden, Petitioner 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) (quotation omitted).

       We have carefully reviewed the briefs of Petitioner and Respondent, the

district court’s disposition, and the record on appeal. Nothing in the facts, the

record on appeal, or Petitioner’s filing raises an issue which meets our standard

for the grant of a certificate of appealability. For substantially the same reasons

set forth by the district court in its Order of December 16, 2005, we cannot say

“that reasonable jurists could debate whether (or, for that matter, agree that) the


                                          -3-
petition should have been resolved in a different manner.” Id.

      We GRANT Petitioner’s motion to proceed in forma pauperis, but we

DENY Petitioner’s request for a certificate of appealability and DISMISS the

appeal.

                                              Entered for the Court



                                              Monroe G. McKay
                                              Circuit Judge




                                        -4-
