                                                                                  FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                     UNITED STATES COURT OF APPEALS                          March 21, 2011

                                   TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court

GREGORY D. RIVERS,

       Petitioner - Appellant                                  No. 11-7001

v.                                                            (E.D. Okla.)
                                                 (D.C. No. 6:08-CV-00380-JHP-KEW)
JUSTIN JONES,

       Respondent - Appellee




            ORDER DENYING CERTIFICATE OF APPEALABILITY,
                      AND DISMISSING APPEAL


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Gregory D. Rivers, proceeding pro se,1 seeks to appeal from the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition. It also denied his request for a

certificate of appealability (COA) but granted his motion to proceed in forma pauperis

(ifp) on appeal.2 See 28 U.S.C. § 2253(c)(2). Rivers has renewed his request for a COA

with this Court; we deny it.


       1
         We acknowledge Rivers “is a layman in the fine science of law” (Appellant’s Br.
at 1) and, as such, liberally construe his pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       2
         For reasons that escape us, the district court granted leave to proceed ifp on
appeal. While we would have denied the request because the appeal is frivolous, we are
loath to disturb the district court’s contrary order.
       A jury was empaneled to try criminal charges brought against Rivers. During the

trial his attorney moved for a mistrial, which was granted. The second trial was to the

bench. Rivers was convicted of second degree burglary (Count 1), knowingly concealing

stolen property (Count 2), attempting to elude a police officer (Count 3), and possession

of a controlled substance (Count 4). Rivers, represented by different counsel, appealed to

the Oklahoma Court of Criminal Appeals (OCCA). The OCCA affirmed.

       Rivers then filed a pro se petition for post-conviction relief in state court claiming:

(1) the trial court’s declaration of a mistrial was an abuse of discretion amounting to plain

error; and (2) ineffective assistance of appellant counsel. The Court denied River’s

petition. He appealed. The OCCA noted error it determined to be harmless but

concluded Rivers’ “post-conviction pleadings . . . fell short of establishing any legitimate

claim of ineffective appellate counsel” and affirmed the denial of all issues in Rivers’

request for post-conviction relief. (R. Vol. 1 at 69 – Appellant’s Writ of Habeas Petition,

Ex. F at 3.)

       Rivers brought this habeas action making numerous claims:

       1. Mistrial declaration at defense counsel’s request without petitioner’s
          consent violated petitioner’s Sixth Amendment right to jury trial, due
          process, and equal protection.

       2. Petitioner was deprived of the effective assistance of trial counsel,
          resulting in a mistrial declaration without petitioner’s consent and
          without prior discussion with petitioner.

       3. Ineffective assistance of appellate counsel.

       4. Violation of the Fifth Amendment prohibition against double jeopardy.

       5. Violation of the Sixth Amendment right to a speedy trial.


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       6. Violation of due process:

              a) The State failed to preserve evidence of the burglary and
                 improperly entered photographs into evidence.

              b) The evidence was insufficient to prove Concealing Stolen
                 Property and the felony offense of Attempting to Elude a Peace
                 Officer.

       7. Admission of police officer’s testimony as to alleged “spontaneous
          declaration” uttered while petitioner was undergoing medical treatment
          violated petitioner’s Fifth Amendment rights.

(R. Vol. I at 333-34 - 9/15/10 Dist. Ct. Opinion & Order at 1-2). In a thorough and

cogent decision, the district court evaluated each claim and denied relief.

       In his application for COA, Rivers raises only three issues: 1) ineffective

assistance of state trial counsel; 2) ineffective assistance of state appellate counsel; and 3)

unreasonable sentencing. The sentencing issue was not presented to the district court.

Generally, we will not address issues raised for the first time on appeal. See United

States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 202). Even with a charitable reading of

his pro se pleadings we see no reason to depart from our general rule in this case.3 The

ineffective assistance claims are subject to familiar requirements. A COA may be issued

only upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2).

       Rivers’ application for a COA amounts to merely a ‘taint fair claim unsupported


       3
        He did raise the issue before the OCCA. It determined: “[W]hile the trial court
imposed hefty sentences, its decision was undoubtedly influenced in leading police on a
dangerous high-speed chase, and by Appellant’s history of criminal violence. . . . We
cannot say the court abused its discretion at sentencing.” (R. Vol. 1 at 232 – OCCA
7/17/07 Summary Opinion.)

                                             -3-
by even a single record reference or citation of authority. Nevertheless, we have

carefully reviewed the district court’s meticulous and proper analysis of the issues he has

raised to this Court. We are more than confident that reasonable jurists would not find

the district court's assessment of those constitutional claims debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L.Ed.2d 542 (2000).

       The application for a COA is denied and this matter is dismissed.


                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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