                                                                                F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                MAY 14 2003
                             FOR THE TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                    Clerk

    DENNIS ESCARENO,

                 Petitioner-Appellant,

    v.                                                          No. 01-2317

    ERASMO BRAVO, Warden,
    Guadalupe County Correctional
    Facility; ATTORNEY GENERAL
    FOR THE STATE OF NEW MEXICO,

                 Respondents-Appellees.


                                         ORDER *


Before EBEL , HENRY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         This matter is before the court on Dennis Escareno’s      pro se request for

a certificate of appealability (COA). Mr. Escareno seeks a COA so that he can


*
      This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition.

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

a final order denying a § 2254 habeas petition unless petitioner first obtains

a COA). This court denies his request for a COA and dismisses this appeal.       1



       In 1999, Mr. Escareno was convicted in New Mexico state court of false

imprisonment and aggravated battery. As a result of his habitual offender status,

he received a term of imprisonment of nine and a half years, plus two years of

parole. The New Mexico Court of Appeals affirmed his conviction on direct

appeal, and the New Mexico Supreme Court denied review. He filed a state

habeas petition, which was denied, and the New Mexico Supreme Court denied

certiorari.

       Mr. Escareno then filed this § 2254 habeas petition in federal district court

incorporating by reference the claims he raised in his state habeas petition and the

related petition for certiorari. The parties are familiar with the facts, so we need

not repeat them here. Construed liberally, Mr. Escareno’s § 2254 petition asserts

that (1) the trial court violated his constitutional rights when it disallowed the



1
       The notice of appeal was filed past the thirty-day deadline set by
Fed. R. App. P. 4(a)(1)(A), but the district court granted Mr. Escareno’s
timely request for an extension of time.    See id . Rule 4(a)(5)(A). Accordingly,
this court has appellate jurisdiction.   Hinton v. City of Elwood , 997 F.2d 774,
778-79 (10th Cir. 1993) (stating that “Rule 4(a)(5) permits the district court’s
approval of a timely motion to extend to validate a prior notice of appeal”).

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admission of the victim’s hospital records, which he asserts were exclupatory;

(2) the prosecutor violated his constitutional rights by not introducing these

hospital records or the testimony of hospital personnel; (3) his counsel was

constitutionally ineffective because he failed to have an expert witness available

to authenticate and interpret the hospital records, resulting in the district court’s

exclusion of such evidence; and (4) during closing argument, the prosecutor

commented improperly on Mr. Escareno’s right not to testify.

      The district court referred the matter to a magistrate judge, who reviewed

all of the trial court records and testimony and all of the state court appellate and

habeas proceedings, and prepared a detailed, thorough and carefully reasoned

report and recommendation. The district court adopted the magistrate judge’s

report and dismissed the § 2254 petition. Briefly summarized, the magistrate

judge concluded that:

      (1) the trial court did not abuse its discretion in excluding the hospital

records and their exclusion did not deprive Mr. Escareno of any federal

constitutional rights;

      (2) the prosecutor was not obligated to present defense witnesses or

evidence and did not commit any violation of    Brady v. Maryland , 373 U.S. 83

(1963), because both the police and prosecutor fully disclosed the allegedly




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exculpatory information to defense counsel, who possessed the medical records in

question;

       (3) Mr. Escareno did not receive constitutionally ineffective assistance of

counsel because (a) he was not prejudiced by the allegedly defective legal

assistance because his counsel did introduce evidence in support of

Mr. Escareno’s theory that the hospital records did not corroborate all of the

victim’s alleged injuries, and admission of the hospital records would not have

altered the result of the proceeding because there was substantial, compelling

witness testimony corroborating the extent of the victim’s injuries when she was

in the hospital and the day after her release,         see Strickland v. Washington ,

466 U.S. 668, 694 (1984), and (b) his counsel’s performance did not so deny

Mr. Escareno representation that prejudice should be presumed; and

       (4) the prosecutor’s closing argument comments, taken in context, were

within the bounds of reasonable argumentation,              see Pickens v. Gibson , 206 F.3d

988, 999 (10th Cir. 2000) (holding that prosecutor free to comment on

defendant’s failure to call certain witnesses or present certain testimony).

       Issuance of a COA is jurisdictional.            Miller-El v. Cockrell , 123 S. Ct. 1029,

1039 (2003). A COA can issue “only if the applicant has made a substantial

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

“A petitioner satisfies this standard by demonstrating that jurists of reason could


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disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.”   Miller-El , 123 S. Ct. at 1034. We have reviewed

Mr. Escareno’s application for a COA and appellate brief, the magistrate judge’s

report and recommendation, the district court order, and the entire record on

appeal pursuant to the framework set out in         Miller-El . This court concludes that

the requirements for issuance of a COA have not been met because the magistrate

judge’s and district court’s resolution of Mr. Escareno’s claims are not reasonably

subject to debate and the claims are not adequate to deserve further proceedings.

Accordingly, this court DENIES the request for a COA and DISMISSES the

appeal. The mandate shall issue forthwith.


                                                           Entered for the Court



                                                           Michael R. Murphy
                                                           Circuit Judge




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