                                                                                   F I L E D
                                                                            United States Court of Appeals
                                                                                    Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                   August 1, 2007
                                       TENTH CIRCUIT                            Elisabeth A. Shumaker
                                                                                    Clerk of Court


 AURELIO ROMERO,

           Petitioner-Appellant,
 v.                                                   Nos. 07-6070; 07-6076; 07-6112
 ERIC FRANKLIN, Warden;                                    (D.C. No. CIV-05-1207-HE)
 ATTORNEY GENERAL OF THE                                         (W. D. Oklahoma)
 STATE OF OKLAHOMA,

           Respondents-Appellees.




               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Aurelio Romero (a/k/a Martin Roy Romero), an Oklahoma prisoner appearing pro

se, seeks a certificate of appealability (COA) in order to challenge the district court’s

denial of his 28 U.S.C. § 2254 petition for federal habeas relief. Because Romero has

failed to satisfy the standards for the issuance of a COA, we deny his request and dismiss

the matter.

                                                 I.

       On April 20, 2004, a jury convicted Romero of five counts of distribution of a



       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
controlled dangerous substance in the District Court of Stephens County (Oklahoma),

Case No. CF-1999-428. Romero was sentenced to thirty-years’ imprisonment on each of

the counts, with the sentences to run consecutively. Romero filed a direct appeal, arguing

that three instances of prosecutorial misconduct during closing argument violated his

right to a fair trial and resulted in an excessive sentence: (1) the prosecutor improperly

referred to Romero as “the Wal-Mart” of “the methamphetamine world”; (2) the

prosecutor incorrectly summarized the amount of methamphetamine purchased from

Romero during five controlled drug buys; and (3) the prosecutor argued facts not in

evidence in attempting to justify why Romero was not arrested after the first controlled

drug buy and why law enforcement authorities arranged for four more controlled

purchases from him. On August 26, 2005, the Oklahoma Court of Criminal Appeals

(OCCA), applying a plain error standard of review, rejected Romero’s arguments and

affirmed his convictions and sentences.

       Romero filed a federal habeas petition on October 14, 2005, asserting the same

claims of prosecutorial misconduct that he raised on direct appeal. The magistrate judge

assigned to Romero’s case issued a report and recommendation, recommending that the

petition be denied. In the magistrate judge’s view, the prosecutor’s Wal-Mart analogy,

“while colorful, was a reasonable inference based on the evidence that [Romero] was able

to procure an ample supply of methamphetamine and deliver it on demand.” ROA, Doc.

6 at 7. With respect to the prosecutor’s alleged incorrect summary of the amount of

methamphetamine, the magistrate judge noted that “the evidence establishing [Romero’s]

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guilt on five charges of distributing illegal drugs was quite strong,” and “the trial court

sustained defense counsel’s objection to one of the comments and further instructed the

jury to decide the case on the evidence presented at trial.” Id. at 9. As for the

prosecutor’s alleged reference to facts not in evidence, the magistrate judge concluded

“that evidence exist[ed] to support the prosecutor’s statement,” and that the statement was

“invited . . . by defense counsel” and thus “easily f[ell] within the wide latitude of

argument allowed to prosecutors . . . .” Id. at 11. Ultimately, the magistrate judge

concluded that “the OCCA’s rejection of [Romero]’s claims of prosecutorial misconduct

was not contrary to or an unreasonable application of clearly established federal law, as

reflected in the decisions of the United States Supreme Court.” Id. at 12.

       On March 20, 2007, the district court adopted the report and recommendation,

denied Romero’s habeas petition, and entered judgment against Romero. Romero filed a

notice of appeal (No. 07-6070) from the district court’s judgment. On March 27, 2007,

the district court denied Romero’s request for COA, and Romero filed a separate notice of

appeal (No. 07-6076) from that order. On May 4, 2007, the district court denied

Romero’s request to proceed on appeal in forma pauperis, and Romero filed a separate

notice of appeal (No. 07-6112) from that order as well.

       Romero has now renewed his request for a COA with this court. Romero has also

filed a motion to proceed in forma pauperis on appeal.

                                              II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

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(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). In order to

make that showing, a prisoner 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted).

       Here, the magistrate judge carefully and thoroughly analyzed Romero’s claims

before recommending that his petition be denied. In doing so, the magistrate judge

correctly outlined the standards governing federal habeas petitions. The magistrate judge

then properly identified the controlling Supreme Court precedent for Romero’s claims of

prosecutorial misconduct. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)

(holding that where no specific Bill of Rights guarantees are implicated, prosecutorial

misconduct must have so infected the trial with unfairness as to make the resulting

conviction a denial of due process). Lastly, the magistrate judge painstakingly reviewed

each of the complained-of prosecutorial comments, together with the trial transcript as a

whole, and concluded that the OCCA’s resolution of those claims was not contrary to, or

an unreasonable application of, Donnelly. After conducting our own review of Romero’s

application for a COA, his appellate brief, and the record on appeal, we conclude that the


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magistrate judge’s conclusions, which were adopted in full by the district court, are

unassailable. In other words, we conclude that no reasonable jurist “could debate whether

(or, for that matter, agree that)” any of Romero’s claims “should have been resolved in a

different manner or that [they] were adequate to deserve encouragement to proceed

further.” Slack, 529 U.S. at 484 (internal quotation marks omitted).

       The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.



                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




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