                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 3, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 RICHARD LEE MARTINEZ,

               Petitioner - Appellant,                   No. 10-1294
          v.                                             (D. Colorado)
 KEVIN MILYARD; JOHN SUTHERS,                  (D.C. No. 1:08-CV-00128-CMA)

               Respondents - Appellees.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

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

is therefore ordered submitted without oral argument.

      Petitioner Richard Lee Martinez, a Colorado state prisoner proceeding pro

se, seeks a certificate of appealability (“COA”) to enable him to appeal the denial

of his 28 U.S.C. § 2254 habeas petition alleging various infirmities in two


      *
       This order is not binding precedent except under the doctrines of law of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.
separate Colorado state court convictions for sexual assault. To obtain a COA,

Mr. Martinez must make a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84

(2000). Because Mr. Martinez has not made such a showing, we deny him a

COA and dismiss this matter.



                                 BACKGROUND

      As indicated above, this case relates to two separate Colorado state court

convictions involving Mr. Martinez: Montrose County District Court Nos.

97CR127 and 97CR180. In state court conviction No. 97CR127, Mr. Martinez

was convicted of attempted first-degree sexual assault, sexual assault on a child,

and four counts of being an habitual criminal. The offenses involved

Mr. Martinez’s attempt to have sexual intercourse with his sixteen-year-old

biological daughter. He was sentenced to sixteen years’ imprisonment for the

crimes. His convictions and sentence were affirmed on direct appeal. See People

v. Martinez, No. 98CA0386 (Colo. Ct. App., Dec. 9, 1999) (unpublished). The

Colorado Supreme Court denied certiorari review.

      Mr. Martinez also filed three unsuccessful postconviction attacks on his

convictions and sentence in No. 97CR127. See People v. Martinez, No.

00CA1781 (Colo. Ct. App., June 21, 2001) (unpublished); People v. Martinez,

No. 01CA2131 (Colo. Ct. App., Feb. 20, 2003) (unpublished); and People v.

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Martinez, Nos. 04CA1760 and 05CA1593 (Colo. Ct. App., March 22, 2007)

(unpublished). 1 On July 16, 2007, Mr. Martinez was denied certiorari review of

his third postconviction motion.

      In state court conviction No. 97CR180, Mr. Martinez was convicted of two

counts of second-degree sexual assault, one count of attempted second-degree

sexual assault, one count of first-degree sexual assault, and one count of second-

degree burglary. These offenses arose out of Mr. Martinez’s sexual assault of

another woman (i.e., not his biological daughter). The court sentenced him to

fifty-nine years’ imprisonment, to be served consecutively to the sentence in case

No. 97CR127. His convictions and sentences were affirmed on direct appeal.

See People v. Martinez, 36 P.3d 154 (Colo. Ct. App. 2001). On December 17,

2001, Mr. Martinez was denied certiorari review.

      In 2003, Mr. Martinez filed a postconviction motion, pursuant to Colo. R.

Crim. P. 35(c), in case No. 97CR180, alleging ineffective assistance of counsel.

On June 30, 2004, while his Rule 35(c) motion was still pending, Mr. Martinez

filed a pro se postconviction motion alleging that his sentence was

unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). The trial

court denied that motion on July 20, 2004. Following a hearing on the claim of

ineffective assistance of counsel, the trial court denied Mr. Martinez’s Rule 35(c)

      1
       The last case was the consolidated appeal from the denial of his third
postconviction motion in No. 97CR127 and his first postconviction motion in No.
97CR180.

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motion. The Colorado Court of Appeals affirmed the denial of both of those

motions. On July 16, 2007, certiorari review was denied.

      Mr. Martinez then filed the instant application, raising claims relating to

case No. 97CR127 and case No. 97CR180. With respect to case No. 97CR127,

Mr. Martinez claimed that the trial court erred when it: (1) allowed him to waive

his right to counsel when he was under a claimed mental disability and therefore

unable to make such a decision; and (2) did not grant him a continuance when his

investigator withdrew one week before trial. Concerning case No. 97CR180,

Mr. Martinez alleged that the trial court erred when it: (3) admitted evidence of

other acts under Colo. R. Evid. 404(b); (4) admitted statements he made during

the course of plea negotiations; (5) failed to instruct the jury on the defense of

consent by his alleged victim; and (6) gave an inadequate limiting instruction on

the other acts evidence. With respect to case No. 97CR180, Mr. Martinez also

claimed that his trial counsel was ineffective.

      The district court carefully reviewed the record and Mr. Martinez’s

allegations. With respect to each claim, the court first considered whether the

claim had been properly exhausted and/or was procedurally barred. It then either

addressed the merits of each claim or found it procedurally barred. Accordingly,

the district court determined that Mr. Martinez’s first claim (waiver of right to

counsel) was exhausted but should be dismissed on its merits. The court

dismissed the second claim (not granting continuance) and third claim (admission

                                          -4-
of other acts evidence) as procedurally barred. With respect to the fourth claim

(admission of statements made during plea negotiations), the fifth claim (failure

to instruct on the defense of consent), and the sixth claim (inadequate limiting

instruction on other acts evidence), the court determined they were all exhausted

but should be dismissed on their merits. Finally, regarding Mr. Martinez’s

seventh claim (ineffective assistance of trial counsel), the court noted that

respondents conceded it was exhausted, but again determined it should be

dismissed on its merits. As stated above, Mr. Martinez seeks a COA in order to

appeal that decision.



                                   DISCUSSION

      Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make

“a substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation

marks omitted). Thus, when the district court has ruled on the merits of the

prisoner’s claims, he must show that “reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Id. Where

the district court ruled on procedural grounds, a COA may be granted when the

                                          -5-
petitioner shows “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . whether

the district court was correct in its procedural ruling.” Id.

      The district court dismissed two claims on procedural grounds, and the

remaining four on their merits. The district court’s opinion was meticulous,

thorough and lengthy, and it explained fully each disposition. We cannot see how

reasonable jurists would find any of the court’s determinations debatable, let

alone wrong. Accordingly, we deny Mr. Martinez his requested COA for

substantially the reasons stated in the district court’s order dated June 30, 2010.



                                   CONCLUSION

      For the foregoing reasons, we DENY a COA, DENY Mr. Martinez leave to

proceed in forma pauperis, and DISMISS this matter.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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