                                                                         F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     October 12, 2006
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 JEFFREY LYLE PROPHET,

                 Petitioner-A ppellant,                  No. 06-1228
          v.                                            (D . of Colo.)
 TONY CAROCHI, W arden, and                  (D.C. No. 05-CV-1093-M SK-PAC)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Jeffrey Lyle Prophet, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s decision denying

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Prophet also seeks to

proceed in forma pauperis (IFP) in this appeal. For substantially the same reasons




      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
set forth in the magistrate judge’s recommendation, we conclude Prophet is not

entitled to a COA. M oreover, we deny his request to proceed IFP because he has

failed to demonstrate a financial inability to pay the required fees.

                                   I. Background

      Prophet’s § 2254 petition arises out of his 2000 Colorado conviction for

second-degree murder and second-degree assault, for which he received two

consecutive prison terms for 48 and 12 years, respectively. The Colorado Court

of Appeals affirmed the convictions and sentence on direct appeal, and the

Colorado Supreme Court denied his petition for a writ of certiorari.

Subsequently, Prophet filed post-conviction motions in the Colorado trial court.

The trial court denied his motions, and the Colorado Court of Appeals affirmed

those rulings. The Colorado Supreme Court then denied Prophet’s petition for a

writ of certiorari in the post-conviction proceedings.

      In this § 2254 action, Prophet raised the following claims: (1) his guilty

plea was not knowing and voluntary, in violation of his federal constitutional

right to due process, because he was under the influence of the sleep aid Restoril

when he entered the plea; (2) trial counsel provided ineffective assistance of

counsel in violation of the Sixth Amendment by allowing him to enter the plea

while under the influence of Restoril; (3) trial counsel provided ineffective

assistance by failing to investigate or advise him on the heat of passion defense.

The magistrate judge concluded claims one and two were meritless and claim

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three was procedurally barred because Prophet failed to raise it before the trial

court as required by state law. W ith respect to claim three, moreover, the

magistrate judge found Prophet had failed to satisfy either the cause and prejudice

or fundamental miscarriage of justice exceptions to the procedural bar. Upon de

novo review, the district court adopted the magistrate judge’s recommendation

and dismissed the petition.

                                     II. Discussion

      To appeal the district court’s denial of his § 2254 petition, Prophet must

obtain a COA by making “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that

“reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003).

“[A] claim can be debatable even though every jurist of reason might agree, after

the COA has been granted and the case has received full consideration, that [the]

petitioner w ill not prevail.” Id.   M oreover, because he seeks to proceed IFP in

this appeal, Prophet must also demonstrate an inability to pay the required fees

and “a reasoned, nonfrivolous argument on the law and facts in support of the

issues raised.” M cIntosh v. United States Parole Comm’n, 115 F.3d 809, 812

(10th Cir. 1997) (internal quotation marks omitted).

      For substantially the same reasons set forth by the magistrate judge, we

conclude that Prophet is not entitled to a COA.       The magistrate judge’s

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recommendation reflects a careful analysis of the record and is supported by the

applicable law. The court found that Prophet failed to show mental impairment as

a result of drug use at the time he entered his guilty plea and thus neither his due

process claim nor his first ineffective assistance of counsel claim can stand. W ith

respect to the second ineffective assistance of counsel claim— that counsel

impermissibly failed to investigate the heat of passion defense— we agree that the

claim is procedurally barred. Prophet made no showing that he was precluded

from raising the defense in a prior appeal, or that facts existed showing he was

actually innocent of the crime.

      Finally, Prophet is not entitled to proceed IFP for the reasons stated in the

district court order dated July 19, 2006, which found Prophet’s IFP motion

deficient because it failed to include required financial information and the

applicable filing fee. The court gave Prophet leave to amend the motion, but he

failed to cure the deficiencies by the required deadline.

                                   III. Conclusion

      For substantially the same reasons set forth in the magistrate’s

recommendation we D ENY Prophet’s application for a COA, DENY Prophet’s

motion to proceed IFP, and DISM ISS this appeal.

                                  Entered for the Court,

                                  Timothy M . Tymkovich
                                  Circuit Judge



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