                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 31, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



ADRIAN MESTAS,

              Petitioner - Appellant,

       v.
                                                         No. 10-1458
ARISTEDES ZAVARAS, Executive                            (D. Colorado)
Director of CDOC; KEVIN                        (D.C. No. 1:10-CV-01519-ZLW)
MILYARD, Warden; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Proceeding pro se, Adrian Mestas 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 Mestas 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). Mestas’s request to proceed in

forma pauperis on appeal is granted.
      In 2007, Mestas pleaded guilty to a Colorado state charge of first degree

assault with a deadly weapon. He was sentenced to thirty-two years’

imprisonment to be followed by five years of parole. Mestas did not appeal either

his conviction or his sentence. He did, however, file a motion for post-conviction

relief pursuant to Colo. R. Crim. P. 35(c), asserting the following three claims:

(1) the trial court erred by accepting his plea without first determining if there

was a factual basis for it; (2) the state criminal statute under which he was

convicted violates the equal protection clauses of both the federal and the

Colorado state constitutions; and (3) the sentence he received was

disproportionate to the crime he committed. In an order dated November 27,

2007, the state district court denied Mestas’s motion. Mestas did not appeal that

ruling.

      In February 2008, Mestas filed a second motion for post-conviction relief.

When this motion was also denied, Mestas sought to appeal both orders. The

Colorado Court of Appeals concluded the appeal from the 2007 order was

untimely. The Court of Appeals refused to consider the appeal from the 2008

order, concluding the second post-conviction motion was successive. See Colo.

R. Crim. P. 35(c)(3)(VI).

      Mestas filed the instant § 2254 habeas petition on June 28, 2010. In his

petition, Mestas raised the same three claims of error previously presented to the

Colorado state courts. The federal district court concluded Mestas’s claims were

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all procedurally defaulted in Colorado state court and determined the state

procedural bar was independent and adequate. The district court concluded it was

procedurally barred from considering Mestas’s claims because he failed to show

cause for the default and actual prejudice or that the failure to review his claims

would result in a fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722, 750 (1991).

      This court cannot grant Mestas a COA unless he can 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) (quotations omitted). In evaluating whether

Mestas has carried his burden, this court undertakes “a preliminary, though not

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

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Mestas is not required

to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

      This court has reviewed Mestas’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 Mestas is not

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

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

proceedings.

      Because Mestas 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).

Accordingly, this court denies Mestas’s request for a COA and dismisses this

appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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