                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        July 9, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 JO SE C ASTR O-Q U IR IN O ,

              Petitioner - A ppellant,                   No. 06-2322
       v.                                              (D. New M exico)
 LANE BLAIR, W arden, Torrance                    (D.C. No. CIV-03-753-M V)
 County Detention Facility;
 A TTO RN EY G EN ER AL FO R THE
 STA TE OF N EW M EX IC O,

              Respondents - Appellees.



                                         OR DER


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Petitioner, Jose Castro-Quirino seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because Castro-Quirino has not “made a substantial showing of

the denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. Id. § 2253(c)(2).

      After a New M exico jury trial, Castro-Quirino was convicted of

intimidation of a witness, aggravated battery against a household member, and
criminal sexual penetration in the third degree. On direct appeal, the New

M exico C ourt of A ppeals affirmed the convictions, rejecting Castro-Q uirino’s

arguments of insufficient evidence. Castro-Quirino then filed a state habeas

corpus petition which w as denied by the state district court. His petition for a

writ of certiorari was rejected by the New M exico Supreme Court as untimely.

      Castro-Quirino filed the instant § 2254 habeas application on June 25,

2003, raising the following allegations: (1) he was denied the effective assistance

of trial counsel, (2) his double jeopardy rights were violated, and (3)

prosecutorial misconduct and numerous errors committed by the trial court

deprived him of a fair trial. Respondent moved to dismiss Castro-Quirino’s §

2254 petition. The district court granted Respondent’s motion, concluding

Castro-Quirino’s claims were procedurally defaulted due to his failure to perfect

a timely petition for writ of certiorari in the New M exico Supreme Court. See

Watson v. New M exico, 45 F.3d 385, 387 (10th Cir. 1995). The court determined

Castro-Quirino failed to show cause for the default and actual prejudice or that

the failure to review his claims would result in a fundamental miscarriage of

justice. See Coleman v. Thom pson, 501 U.S. 722, 750 (1991).

      This court cannot grant Castro-Quirino a COA unless he can 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.

                                          -2-
M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Castro-Quirino has carried his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framew ork” applicable to each

of his claims. M iller-El v. Cockrell, 537 U.S. 322, 338 (2003). Castro-Quirino is

not required to demonstrate his appeal will succeed to be entitled to a COA. He

must, however, “prove something more than the absence of frivolity or the

existence of mere good faith.” Id. (quotations omitted).

      This court has reviewed Castro-Quirino’s appellate briefs, the district

court’s order, and the entire record on appeal pursuant to the framew ork set out

by the Supreme Court in M iller-El and concludes that Castro-Quirino is not

entitled to a COA. The district court’s resolution of Castro-Quirino’s claims is

not reasonably subject to debate and the claims are not adequate to deserve

further proceedings. Accordingly, Castro-Quirino has not “made a substantial

showing of the denial of a constitutional right” and is not entitled to a COA. 28

U.S.C. § 2253(c)(2).

      This court denies Castro-Q uirino’s request for a COA, dismisses this

appeal, and grants counsel’s motion to withdraw.

                                               ENTERED FOR THE COURT


                                               M ichael R. M urphy
                                               Circuit Judge




                                         -3-
