                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           OCT 8 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk


DARRIN KEITH ELLIOTT,

       Petitioner-Appellant,
                                                        No. 04-6073
v.                                             (Western District of Oklahoma)
                                                 (D.C. No. 03-CV-1145-L)
MICHAEL ADDISON,

       Respondent-Appellee.




                                     ORDER


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      This matter is before the court on Darrin Keith Elliott’s request for a

certificate of appealability (“COA”). Elliott seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28

U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final

order in a habeas corpus proceeding in which the detention complained of arises

out of process issued by a State court,” unless the petitioner first obtains a COA).

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

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.
      Elliott was convicted by a jury in Oklahoma state court of one count of first

degree murder and one count of unlawful removal of a body. On the jury’s

recommendation, the trial court sentenced Elliott to a term of life imprisonment

on the murder conviction and a term of five-years’ imprisonment on unlawful-

removal-of-a-body conviction. On direct appeal, Elliott raised the following six

claims: (1) the jury instructions failed to require the state to prove beyond a

reasonable doubt that he did not kill the victim in the heat of passion; (2) his

murder conviction was not supported by sufficient evidence; (3) the state’s effort

to introduce surprise evidence violated his right to due process; (4) the trial court

denied him his Sixth Amendment right to an impartial jury when it excused a

member of the jury panel on grounds of hardship; (5) the prosecution vindictively

filed a bill of particulars in retaliation for his exercise of right to a preliminary

hearing, right to jury trial, and right to remain silent; and (6) his life sentence on

the murder conviction was excessive. The Oklahoma Court of Criminal Appeals

(“OCCA”) considered Elliott’s claims on the merits on direct appeal and denied

relief in an unpublished opinion.

      After exhausting his state court remedies, Elliott filed the instant § 2254

petition raising the same claims he raised on direct appeal. The district court

referred the matter to a magistrate judge for initial proceedings pursuant to 28

U.S.C. § 636(b)(1)(B). The magistrate judge began by noting that because the


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OCCA had considered and rejected on the merits the very same claims now

advanced in the § 2254 petition, Elliott could obtain habeas relief only if the

decision of the OCCA was (1) “contrary to” or involved “an unreasonable

interpretation of” Supreme Court precedent; or (2) was based on an unreasonable

determination of the facts in light of the evidence presented in state court. 28

U.S.C. § 2254(d). Then, in an exceedingly thorough fashion, the magistrate judge

applied this standard to each of Elliott’s six claims and recommended that the

district court deny habeas relief. Upon de novo review, the district court adopted

the magistrate judge’s report and recommendation, denied Elliott’s habeas

petition, and dismissed the action.

      To be entitled to a COA, Elliott 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, 123 S. Ct. 1029, 1039 (2003) (quotations

omitted). In evaluating whether Elliott 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 1040. Although Elliott need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove


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something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Elliott’s application for a COA and

appellate filings, the magistrate judge’s well-reasoned report and

recommendation, the district court’s order, the decision of the OCCA on direct

appeal, and the entire record before this court pursuant to the framework set out

by the Supreme Court in Miller-El, this court concludes that Elliott is not entitled

to a COA. The district court’s resolution of Elliott’s § 2254 petition is not

reasonably subject to debate and the issues he seeks to raise on appeal are not

adequate to deserve further proceedings. It would constitute a waste of judicial

resources to repeat the thorough analysis set out in the magistrate judge’s report

and recommendation. Accordingly, this court simply notes that we DENY

Elliott’s request for a COA for substantially those reasons set out in the

magistrate judge’s report and recommendation dated December 23, 2003. This

appeal is, therefore, DISMISSED.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court


                                               by:
                                                     Deputy Clerk




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