                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 26, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 PAUL C. ALLEN,

              Petitioner - Appellant,                    No. 10-4212
 v.                                           (D.C. No. 2:08-CV-00858-DAK)
                                                         (D. Utah)
 STEVEN TURLEY, Warden; STATE
 OF UTAH,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Paul C. Allen, appearing pro se, requests a certificate of

appealability (COA) to appeal the district court’s denial of his application for

relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c) (requiring COA to appeal

denial of application). Because Defendant has failed to make a substantial

showing of the denial of a constitutional right, we deny his request for a COA and

dismiss this appeal.

I.    BACKGROUND

      Defendant was accused of committing aggravated murder of his wife Jill

Allen, conspiracy to commit aggravated murder, and criminal solicitation. A jury

found him guilty of aggravated murder on February 23, 2000. The jury was
instructed that if it found Defendant guilty of aggravated murder, it should not

render a verdict on the other two charges.

      On February 11, 2005, the Utah Supreme Court affirmed Defendant’s

conviction on appeal. He then petitioned in Utah state district court for

postconviction relief, which was denied on March 14, 2007. The denial was

affirmed by the Utah Supreme Court on August 19, 2008. On April 2, 2009,

Defendant filed an amended petition for postconviction relief in state district

court. It was denied on April 9, 2009, and the denial was affirmed by the Utah

Court of Appeals on July 30, 2009.

      On November 7, 2008, Defendant filed his application for relief under

28 U.S.C § 2254 in the United State District Court for the District of Utah. His

brief in support of the application claimed that (1) he received ineffective

assistance of counsel; (2) he was deprived of an impartial tribunal in violation of

his First and Fourteenth Amendment rights; (3) the jury instructions were

confusing and coercive; (4) the jury received a constitutionally flawed burden-

shifting instruction; (5) the special-verdict form mandated a verdict of guilty on

the aggravated murder charge; (6) the court violated his constitutional rights by

not allowing him to be present at various hearings and conferences, by allowing

multiplicitous overlapping counts, by admitting evidence of fraudulent credit card

purchases, by not allowing the jury to deliberate on all the charges, and by not

allowing him to cross-examine state witnesses; (7) his right to a jury trial was

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violated because no verdict was reached on the conspiracy and solicitation

charges; (8) there was juror and prosecutorial misconduct; (9) the jury was

wrongly informed that one of the prosecution’s witnesses did not receive a written

immunity agreement and was wrongly denied trial-testimony transcripts; and (10)

a minute entry wrongly stated that he was found guilty of all three counts. On

November 1, 2010, the district court denied Defendant’s § 2254 application as

procedurally barred.

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

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

§ 2253(c)(2). This standard requires “a demonstration that . . . includes showing

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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, an applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id.

      Because Defendant has proceeded pro se, we construe his pleadings

liberally. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1210 n.1 (10th Cir.

2009). We need consider only the arguments raised by Defendant in this court.

As best we understand his appellate brief, he raises the following seven

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contentions: (1) his Sixth Amendment rights were violated because no verdict

was required for the conspiracy and solicitation counts; (2) the district court

incorrectly told the jury that one of the witnesses did not have a written immunity

agreement; (3) a minute entry for his jury trial erroneously stated that he had been

found guilty on all three counts; (4) the district court erred by improperly

admitting evidence of his fraudulent use of a credit card; (5) the jury instructions

on the solicitation charge were erroneous; (6) the special verdict form directed a

verdict for the state on the murder charge; and (7) he was not afforded effective

assistance of counsel. Although the district court rejected all Defendant’s claims

as procedurally barred, we base our denial of a COA on the patent lack of merit of

the claims.

      Defendant’s first claim is that he was deprived of the right to a jury trial

because the jury was instructed not to render a verdict on the conspiracy or

solicitation charges once it found him guilty of murder. He suggests that because

he was not present at the scene of the murder, he could be found guilty of

aggravated murder only if he was guilty of the conspiracy or solicitation charges.

But he does not challenge the adequacy of the aggravated-murder instructions;

and so long as the jury found the elements of that offense, it was hardly necessary

for it to find that the same evidence would also establish another of the charged

offenses. The failure of the jury to render a verdict on the conspiracy or

solicitation charges does not in any way indicate that the jury did not find all the

                                          -4-
elements necessary for the murder conviction. In short, he received the jury trial

to which he was entitled on the murder charge.

      Defendant’s second claim fails for lack of prejudice. Even if the trial judge

erroneously told the jury that the immunity agreement was not in writing, we

cannot see what difference it could have made to the jury whether the agreement

was written or oral. Defendant asserts that the jury did not know that there was

an oral immunity agreement. But the record, including excerpts quoted in

Defendant’s own brief, establishes otherwise.

      Defendant’s third claim is deficient for the same reason. He does not

suggest that any harm befell him because of the incorrect minute entry that he had

been convicted of solicitation and conspiracy.

      As for the fourth claim, Defendant has not argued that it implicates federal

law. Perhaps the admission of the credit-card evidence was contrary to Utah’s

rules; but it is well-settled that errors of state law do not merit federal habeas

relief. See Estelle v. McGuire, 502 U.S. 62, 67 (1991). Likewise, Defendant’s

fifth claim—a challenge to the instructions on the solicitation charge—is a matter

of Utah law, not cognizable under § 2254. See Rael v. Sullivan, 918 F.2d 874,

876–77 (10th Cir. 1990).

      Defendant’s sixth claim is equally meritless. The court instructed the jury

that it could consider the three charges in any sequence it desired, but that if it

found Defendant guilty of aggravated murder, it should not render a verdict on the

                                           -5-
two other charges. We fail to see how the instructions or the verdict form in any

way coerced the jury into finding Defendant guilty of murder.

       Finally, insofar as Defendant is arguing that he was denied effective

assistance of counsel, he is asserting only that his attorneys should have raised the

other issues he is now raising in this court. But because those issues lack merit,

his ineffective-assistance claim fails. See Upchurch v. Bruce, 333 F.3d 1158

1163–64 (10th Cir. 2003).

III.   CONCLUSION

       Because no reasonable jurist could debate the merits of Defendant’s claims,

we DENY a COA and DISMISS the appeal. We GRANT Defendant’s motion to

proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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