                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                    UNITED STATES COURT OF APPEALS March 23, 2011
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



DONALD A. BOULDEN,

               Petitioner-Appellant,

v.                                                     No. 10-2222
                                           (D.C. No. 1:09-CV-00770-BB-KBM)
JAMES JANECKA, Warden;                              (D. New Mexico)
ATTORNEY GENERAL OF THE
STATE OF NEW MEXICO,

               Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, Chief Judge, TACHA and MURPHY, Circuit Judges.


      This matter is before the court on Donald A. Boulden’s pro se request for a

certificate of appealability (“COA”). Boulden seeks a COA so he can appeal the

denial of his 28 U.S.C. § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). Because

Boulden has not “made a substantial showing of the denial of a constitutional

right,” id. § 2253(c)(2), this court denies his request for a COA and dismisses

this appeal.

      In 2006, Boulden pleaded no contest in New Mexico state court to one

count of third-degree criminal sexual penetration, in violation of N.M. Stat. Ann.

§ 30-9-11(E), and one count of first-degree kidnapping, in violation of N.M. Stat.
Ann. § 30-4-1(A)(4). In exchange for Boulden’s no-contest plea, New Mexico

dismissed two charges of second-degree criminal sexual penetration, in violation

of N.M. Stat. Ann. § 30-9-11(D), and one count of assault with intent to commit a

violent felony, in violation of N.M. Stat. Ann. § 30-3-3. This had the effect of

considerably reducing Boulden’s potential sentence from something greater than

three life sentences to nothing more than thirty-years’ imprisonment. Because his

plea agreement contained a waiver of appellate rights, Boulden did not file a

direct appeal. He did, however, file a state petition for post-conviction relief.

After holding an evidentiary hearing, the state court denied Boulden’s request for

post-conviction relief; the New Mexico Supreme Court denied Boulden’s request

for a writ of certiorari.

       Boulden then filed the instant § 2254 petition for habeas corpus in the

United States District Court for the District of New Mexico. The matter was

referred to Magistrate Judge Karen Molzen for initial proceedings pursuant to

28 U.S.C. § 636(b)(1)(B). The magistrate judge issued two separate Reports and

Recommendations, which together fully resolved Boulden’s petition. In the first

Report and Recommendation, filed November 24, 2009, the magistrate judge

concluded several of Boulden’s claims were unexhausted. She further concluded,

utilizing the analytical structure set out by this court in Allen v. Zavaras, 568 F.3d

1197, 1201 (10th Cir. 2009), that the appropriate course was to give Boulden the

option of deleting his unexhausted claims and proceeding on the merits with the

                                          -2-
remaining claims. Such a course was appropriate, according to the magistrate

judge, because the equities did not favor the use of a “stay and abeyance,” and

because an outright dismissal of the petition would likely bring the limitations

period set out in 28 U.S.C. § 2244(d) into play. See Allen, 568 F.3d at 1201.

After the district court adopted the Report and Recommendation, Boulden

dismissed the unexhausted claims and the magistrate judge proceeded to resolve

the exhausted claims on the merits. In a second Report and Recommendation, this

one filed on September 3, 2010, the magistrate judge analyzed each remaining

ground for relief set out in Boulden’s § 2254 habeas petition and recommended

that the district court deny habeas relief. The district court adopted the Report

and Recommendation and denied Boulden’s petition.

      The granting of a COA is a jurisdictional prerequisite to Boulden’s appeal

from the dismissal of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, Boulden 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.” Miller-El, 537 U.S. at 336 (quotations

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

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

                                          -3-
framework” applicable to each of his claims. Id. at 338. Although Boulden 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 Boulden’s appellate filings, the district

court’s orders, the magistrate judge’s exceedingly thorough and well-stated

Reports and Recommendations, and the entire record before this court, we

conclude Boulden is not entitled to a COA. In so concluding, this court has

nothing to add to the comprehensive analysis set out by Magistrate Judge Molzen

in her Reports and Recommendations. Accordingly, this court DENIES

Boulden’s request for a COA and DISMISSES this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




                                        -4-
