                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                       December 18, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court



 RU BEN J. M UN IZ,

          Petitioner-A ppellant,
                                                          No. 06-1149
 v.                                            (D.C. No. 05-CV-00069 PSF-M EH)
                                                           (Colorado)
 JO H N SU TH ER S; LA RR Y R EID,

          Respondents-Appellees.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      Ruben M uniz, a state prisoner appearing pro se, 1 seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition for w rit

of habeas corpus pursuant to 28 U.S.C. § 2254. 2 W e see no basis for granting a

COA and deny M r. M uniz’s application.



      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
       W e liberally construe M r. M uniz’s pro se application. See Cum mings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
          The district court denied M r. M uniz’s request for a COA.
      In 1988, a Colorado state court convicted M r. M uniz of aggravated robbery,

attem pted aggravated robbery, conspiracy to commit aggravated robbery, and tw o

crime of violence counts. M r. M uniz was designated a habitual criminal and

sentenced to life imprisonment. Colorado state courts denied M r. M uniz’s

subsequent petitions for post-conviction relief, and the district court similarly

denied his federal § 2254 habeas petition. M r. M uniz now seeks a COA from this

court, arguing (a) there was insufficient proof to support a finding that he was a

habitual criminal, (b) he was improperly denied assistance of counsel during

collateral proceedings, (c) the court failed to instruct the jury as to the proper

evidentiary weight of his co-defendant’s guilty plea, and (d) trial counsel failed to

request such an instruction and thus provided him with ineffective assistance.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” M iller-El v. Cockrell, 537 U.S. 322, 335 (2003).

Before he may appeal, he first must obtain a COA. Otherwise, we have no

jurisdiction over the appeal. See id. at 336. A COA will issue only if petitioner

makes “a substantial showing of the denial of a constitutional right.” Slack v.

M cDaniel, 529 U.S. 473, 483 (2000) To do so, petitioner must show “that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Id. (citations and internal quotation

                                          -2-
marks omitted).

       In determining w hether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See M iller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of A EDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id. W here, as

here, petitioner’s federal habeas claims w ere adjudicated on the merits in state

court, we will grant an application for a COA “only where the state court decision

was ‘contrary to, or involved an unreasonable application of , clearly established

Federal law, as determined by the Supreme Court . . .’ or was ‘based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d 935,

936-37 (10th Cir. 2004).

       W ith these principles in mind, we have carefully reviewed the record of

these proceedings, the lengthy recommendation of the magistrate judge, and the

district court’s order and response to M r. M uniz’ objections to the magistrate

judge’s recommendation. W e agree with the district court that there was

sufficient evidence to deem M r. M uniz a habitual criminal, that the trial court’s

failure to provide an instruction did not render the trial fundamentally unfair, and

that M r. M uniz did not demonstrate prejudice stemming from his counsel’s

alleged errors at trial.

                                          -3-
      M r. M uniz further argues he was improperly denied the assistance of

counsel in preparing his post-conviction challenge to the effectiveness of his trial

counsel. M r. M uniz contends that, because Colorado defendants typically assert

ineffective assistance claims upon collateral review , a collateral proceeding is

effectively the first tier of review and counsel must be provided. 3   Although, as

M r. M uniz notes, Halbert v. M ichigan, 125 S. Ct. 2582 (2005), extended the right

to counsel to a class of discretionary direct appeals, Halbert did not overrule

clearly established Supreme Court precedent that individuals have no right to

counsel in post-conviction proceedings. Id. at 2591-92. See, e.g., Coleman v.

Thom pson, 501 U.S. 722, 755 (1991) (“[T]here is no right to counsel in state

collateral proceedings.”); M urray v. Giarratano, 492 U.S. 1, 13 (1989) (holding

no right to counsel for capital defendants in state habeas proceedings);

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (“[R]espondent has no

underlying constitutional right to appointed counsel in state postconviction

proceedings.”). Accordingly, jurists of reason would not dispute that there is

presently no right to counsel in a post-conviction proceeding even where

collateral appeal is typically, though not necessarily, the first forum for raising an




      3
         Colorado courts have “expressed a preference for having ineffective
assistance of counsel claims brought in [state post-conviction] proceedings,”
People v. Thom as, 867 P.2d 880, 886 (Colo. 1994), but defendants are permitted
to raise ineffectiveness claim on direct appeal in Colorado state court. See
People v. Apodaca, 998 P.2d 25, 29 (Colo. Ct. App. 1999).

                                          -4-
ineffective assistance of counsel claim.

      Finally, a prisoner seeking ifp status must demonstrate financial inability to

pay and the existence of "a reasoned, nonfrivolous argument on the law and the

facts in support of the issues raised on appeal." M cIntosh v. U.S. Parole Comm'n,

115 F.3d 809, 812-13 (10th Cir. 1997) (internal quotation marks omitted). M r.

M uniz has not made a showing of good faith and the absence of frivolity, we deny

his motion for leave to proceed ifp.

      Accordingly, we D EN Y M r. M uniz’ request for a COA and DENY his

motion to proceed ifp.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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