                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 20, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 JEROME MONROE,

              Petitioner - Appellant,                     No. 12-5061
       v.                                               N.D. Oklahoma
 ERIC R. FRANKLIN,                          (D.C. No. 4:08-CV-00434-TCK-TLW)

              Respondent - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, EBEL, and HARTZ, Circuit Judges.




      Proceeding pro se, Jerome Monroe 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 no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Monroe 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).

      An Oklahoma jury found Monroe guilty of first degree murder, in violation

of Okla. Stat. tit. 21, § 701.7. After considering four challenges Monroe raised

on direct appeal, including multiple allegations of ineffective assistance of trial
counsel, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed the

conviction in an unpublished opinion but remanded the matter for resentencing.

Monroe’s sentence was modified to life with the possibility of parole and the

amended judgment was entered on June 28, 2007.

      Monroe filed the instant § 2254 habeas petition on July 28, 2008, and

Respondent moved to dismiss it for failure to exhaust state remedies. Monroe

sought and was granted permission to file an amended petition, in which he raised

two claims previously presented to the OCCA in his direct appeal: (1) his trial

was fundamentally unfair because the trial court refused to instruct the jury on the

lesser-included offense of second degree manslaughter and (2) his trial counsel

provided ineffective assistance by failing to object to the testimony of Dr.

Andrew Sibley, a forensic pathologist. The district court concluded, inter alia,

that Monroe could not prevail on his claim relating to the alleged instructional

error because a trial court’s failure to give a lesser-included instruction in a non-

capital case never raises a federal constitutional question. See Lujan v. Tansay, 2

F.3d 1031, 1036-37 (10th Cir. 1993); see also Estelle v. McGuire, 502 U.S. 62, 68

(1991) (“In conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the United

States.”) . As to Monroe’s claim of ineffective assistance of trial counsel, the

district court applied the standard set forth in the Antiterrorism and Effective

Death Penalty Act, and concluded the OCCA’s adjudication of that claim was not

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

U.S.C. § 2254(d). The district court, accordingly, denied Monroe’s petition and

entered judgment in favor of Respondent. On the day the judgment was entered,

Monroe filed a motion styled, “Motion to Take Judicial Notice of Adjudicative

Facts.” The district court denied this motion as moot.

      In his appellate brief, Monroe challenges the district court’s disposition of

his two substantive claims, and also argues the court erred by failing to hold an

evidentiary hearing and by refusing to consider the information contained in his

Motion to Take Judicial Notice. To be entitled to a COA, Monroe must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make the requisite showing, he must 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.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether

Monroe has satisfied his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Id. at 338. Although Monroe need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id. (quotations omitted).




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      This court has reviewed Monroe’s application for a COA and appellate

brief, the district court’s Order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes Monroe is

not entitled to a COA. The district court’s resolution of his claims is not

reasonably subject to debate and the claims are not adequate to deserve further

proceedings. Because Monroe’s claims were capable of being resolved on the

record, the district court did not abuse its discretion by failing to hold an

evidentiary hearing. See Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003).

Further, the district court did not err in refusing to consider Monroe’s Motion to

Take Judicial Notice of Adjudicative Facts because not only was the motion filed

after the district court had entered judgment, but it is clear from the court’s order

that it considered all the factual bases underlying Monroe’s claims.

      Because Monroe has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This

court denies Monroe’s request for a COA and dismisses this appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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