                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      January 3, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court



STEV EN H A RR IN G TO N ,

       Petitioner-A ppellant,
                                                         No. 06-1016
v.
                                                     (District of Colorado)
                                               (D.C. No. 04-CV -551-LTB -CB S)
LARRY REID; JOHN SU THERS, the
Attorney General for the State of
Colorado,

       Respondents-Appellees.



                                      ORDER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      Proceeding pro se, Steven D. Harrington 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 Harrington 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).

      A Colorado jury convicted Harrington of first degree murder, criminal

attempt first degree murder, first degree assault, second degree kidnapping,
aggravated robbery, first degree aggravated motor vehicle theft, and criminal

attempt first degree sexual assault. Harrington’s convictions were affirmed on

direct appeal by the Colorado Court of Appeals. Harrington then filed a motion

pursuant to Colo. R. Crim. P. 35(c) seeking post-conviction relief. After the

motion was denied by the state trial court, Harrington filed a renewed Rule 35(c)

post-conviction motion which was also denied. The Colorado Court of Appeals

reversed the denial of Harrington’s Rule 35(c) motion and remanded to the trial

court to make findings of fact pursuant to Colo. R. Crim. P. 35(c)(3). On remand,

the trial court once again denied the motion. The Colorado Court of Appeals

affirmed that decision on June 12, 2003, and the Colorado Supreme Court denied

Harrington’s petition for w rit of certiorari.

      Harrington filed the instant § 2254 petition on M arch 11, 2004, raising the

follow ing ten claims: (1) he w as denied his right to a fair trial and due process

because of the trial court’s failure to sever his trial from that of his codefendant,

(2) he w as denied his right to a fair trial and due process w hen the trial court

permitted a Denver police officer to testify as an expert in gang activities, (3) he

was denied his right to a fair trial and due process because the trial court

permitted gang-related evidence to be admitted, (4) he was denied his right to a

fair trial and due process as a result of the prosecution’s exercise of peremptory

challenges, (5) he was denied his right to a fair trial and due process because of

jury misconduct, (6) he w as denied his right to a fair trial and due process

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because the trial court permitted the admission of eyewitness identifications, (7)

he w as denied his right to a fair trial and due process due to the state’s

suppression of material evidence in violation of the principles announced in

Brady v. M aryland, 373 U.S. 83 (1963), (8) he was denied his right to a fair trial

and due process w hen the trial court allowed a physician to testify as an expert

outside his defined area of expertise, (9) he was denied his right to effective

assistance of counsel both during trial and during post-conviction proceedings,

and (10) he was denied his right to a fair trial and due process w hen the trial court

refused to hold an evidentiary hearing during his post-conviction proceeding.

      In a lengthy and thorough Recommendation which addressed each of

Harrington’s claims in turn, a magistrate judge recommended the denial of

Harrington’s § 2254 petition. After reviewing the magistrate judge’s

Recommendation and considering Harrington’s objections thereto, the district

court adopted the recommended ruling and denied Harrington’s § 2254 petition.

      Although Harrington’s petition contained both exhausted and unexhausted

claims, the district court addressed the entire petition on the merits. M oore v.

Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002). The court concluded that, to

the extent Harrington’s claims involved only allegations of state law error, the

claims were not cognizable in a federal habeas corpus proceeding. See Estelle v.

M cGuire, 502 U.S. 62, 67-68 (1991). To the extent those claims also implicated

Harrington’s constitutional rights, however, the court analyzed them on the merits

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and concluded Harrington was not entitled to relief because he failed to

demonstrate his trial was rendered fundamentally unfair. See Donnelly v.

DeChristoforo, 416 U.S. 637, 642-48 (1974); Duckett v. M ullin, 306 F.3d 982,

999 (10th Cir. 2002). The district court also reviewed the constitutional claims

that were previously adjudicated by the Colorado state courts. Applying the

standard set forth in the Antiterrorism and Effective Death Penalty Act, the

district court concluded the state courts’ adjudication of those claims was not

contrary to, nor an unreasonable application of clearly established federal law. 28

U.S.C. § 2254(d).

      This court cannot grant Harrington 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.

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

Harrington has carried his burden, this court undertakes “a preliminary, though

not definitive, consideration of the [legal] framework” applicable to each of his

claims. M iller-El v. Cockrell, 537 U.S. 322, 336 (2003). Harrington is not

required to demonstrate that 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).




                                         -4-
      This court has review ed Harrington’s application for a COA and appellate

brief, the magistrate judge’s Recommendation, 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 Harrington is not entitled to a COA. The district

court’s resolution of Harrington’s claims is not reasonably subject to debate and

the claims are not adequate to deserve further proceedings. Accordingly,

Harrington 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 Harrington’s request for a COA and dismisses this

appeal. Harrington’s motion to proceed in forma pauperis is granted.



                                      Entered for the Court
                                      ELISABETH A. SHUM AKER, Clerk


                                      By
                                              Deputy Clerk




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