                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      March 6, 2007
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court

 G EN TR Y B OLTO N ,

          Plaintiff-Appellant,
 v.
                                                       No. 06-3391
                                               (D.C. No. 05-CV-03417-M LB)
 RAY ROBERTS, W arden, El Dorado
                                                    (District of K ansas)
 Correctional Facility, and PHILL
 KLINE, Attorney General of K ansas,

          Defendants-Appellees.



            OR DER DENYING CERTIFICATE O F APPEALABILITY *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      On December 10, 1998, a K ansas jury found Gentry Bolton guilty of first-

degree murder and aggravated robbery for shooting and killing Shane Bree, a

convenience store clerk, in the course of an armed robbery in Kansas City on

December 28, 1997. M r. Bolton collaterally challenged his state court conviction

in federal district court, under 28 U.S.C. § 2254, on several grounds. The district

court issued a detailed, 24 page opinion denying relief. M r. Bolton now seeks to

appeal the district court’s ruling.




      *
        This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed.R.App.P.32.1 and 10th Cir.R.32.1.
      Congress has instructed, however, that we may review a district court’s

denial of a Section 2254 petition only if a judge first issues a certificate of

appealability (“COA”); in turn, such a certificate may be properly issued only if

the petitioner has “made a substantial showing of the denial of a constitutional

right.” See 28 U.S.C. §§ 2253(c)(2). Under our rules, a habeas petitioner must

present the COA issue, in the first instance, to the district court; in this case, the

district court declined to grant M r. Bolton’s COA which was deemed a denial

because 30 days had passed from the filing of the notice of appeal. See 10th Cir.

R. 22.1(c). Based on our own independent review of the record in this case,

including M r. Bolton’s petition and appeal, we agree that he has not met the

threshold set by Congress for the issuance of a COA and do so for substantially

the same reasons outlined in the District Court’s opinion on M r. Bolton’s Section

2254 petition.

                                         ENTERED FOR THE COURT



                                         Neil M . Gorsuch
                                         Circuit Judge




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