                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    MACK W. THOMAS,

                Petitioner-Appellant,

    v.                                                   No. 10-1048
                                            (D.C. No. 1:07-CV-00114-LTB-MEH)
    JOE ORTIZ, Executive Director of the                  (D. Colo.)
    D.O.C.; THE ATTORNEY GENERAL
    OF THE STATE OF COLORADO,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



         Mack W. Thomas, proceeding pro se, seeks to appeal from the denial of his

28 U.S.C. § 2254 petition for a writ of habeas corpus. See 28 U.S.C.

§ 2253(c)(1)(A). Because Thomas has not “made a substantial showing of the




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denial of a constitutional right, id. § 2253(c)(2), we deny his request for a

Certificate of Appealability (COA) and dismiss this appeal.

      Thomas was convicted by a Colorado jury of two counts of sexual assault

on a child and sentenced to sixteen years in prison and lifetime probation.

Thomas contends he is entitled to a COA on the following claims: (1) he was

deprived of his constitutional right to a fair trial through malicious prosecution,

perjury, and fabrication of evidence; (2) he is being detained in violation of the

Constitution due to ineffective assistance of counsel at trial and on direct appeal;

(3) he was deprived of his constitutional right to counsel on direct appeal, which

is an “objective factor” that prevented him from perfecting his appeal; and (4) he

was deprived of his constitutional right to have access to the state court process

by the state court judge’s refusal to inquire or hold hearings into his allegations of

ineffective assistance of appellate and post-conviction counsel. In a thorough,

comprehensive, and well-reasoned “Recommendation for Dismissal,” a magistrate

judge recommended denying Thomas’s request for habeas relief. The district

judge considered Thomas’s objections, concluded that the magistrate’s

recommendation was correct, and denied Thomas’s habeas petition.

      To be entitled to a COA, Thomas must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that the issues

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presented were adequate to deserve encouragement to proceed further.” Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003) (quotation omitted). We have undertaken a

thorough review of Thomas’s COA application, his opening appellate brief, the

magistrate’s well-stated Recommendation for Dismissal, the record, and the

applicable law; Thomas is not entitled to a COA. 1 Accordingly, we DENY

Thomas’s request for a COA and DISMISS this appeal.

      In the district court Thomas moved for leave to proceed in forma pauperis

on appeal. The court denied the motion, concluding the appeal was not taken in

good faith. See 28 U.S.C. § 1915(a)(3). He reapplied to this court. We also

DENY the request; Thomas must immediately pay all filing and docketing fees to

the district court. Finally, we DENY as moot Thomas’s motion to stay state court

proceedings pending his appeal.


                                                  Entered for the Court



                                                  Terrence L. O’Brien
                                                  Circuit Judge




1
       In reaching this conclusion, we agree substantially with the analysis set
forth in the magistrate’s Recommendation for Dismissal. However, Thomas’s
fourth claim was reviewed de novo because the magistrate thought the Colorado
Court of Appeals had not addressed it. We read the Court of Appeals’s decision
as having addressed the claim, which requires a more deferential standard of
review, see 28 U.S.C. § 2254(d)(1)-(2). But it does not change the result.

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