                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 5, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 TROY ALLEN SHORT,

               Petitioner-Appellant,                      No. 11-1395
          v.                                              D. Colorado
 VANCE EVERETT, * Warden; JOHN                 (D.C. No. 1:10-CV-02250-REB)
 W. SUTHERS, The Attorney General
 of the State of Colorado,

               Respondents-Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before, BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.


      This matter is before the court on Troy Allen Short’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Short seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Short’s request to proceed

on appeal in forma pauperis. Because Short has not, however, “made a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal.


      *
       Pursuant to Fed. R. App. P. 43, Vance Everett, Warden, is substituted as a
Respondent-Appellee for John Davis, Warden. Petitioner was transferred to a
different facility during the pendency of this action.
      A Colorado state jury convicted Short on one count of second degree

burglary and one count of theft. On direct appeal to the Colorado Court of

Appeals (“CCA”), Short asserted the trial court erred when it refused to appoint

substitute counsel. In particular, Short asserted he was entitled to substitute

counsel based on a complete breakdown in communication with existing counsel.

The CCA rejected Short’s claim of error, concluding the record fully supported

the trial court’s determination that communications between Short and his counsel

had not broken down and that perceived friction on the part of Short did not

hinder counsel’s ability to adequately present the case to a jury. The Colorado

Supreme Court thereafter denied Short’s petition for certiorari review.

      Short then filed the instant § 2254 petition in federal district court, again

raising the contention the trial court erred in denying his request for substitute

counsel. In an exceedingly comprehensive Order, the district court denied Short

habeas relief. Short v. Davis, No. 10-cv-02250, 2011 WL 3682767, at *8-9 (D.

Colo. Aug. 23, 2011).

      The granting of a COA is a jurisdictional prerequisite to Short’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Short 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 (or, for

that matter, agree that) the petition should have been resolved in a different

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manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating

whether Short has satisfied his burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of his claims. Id. at 338. Although Short need not demonstrate his appeal will

succeed to be entitled to a COA, he must “prove something more than the absence

of frivolity or the existence of mere good faith.” Id.

      Having undertaken a review of Short’s appellate filings, the district court’s

Order, and the entire record before this court, we conclude Short is not entitled to

a COA. In so concluding, this court has nothing to add to the comprehensive

analysis set out by the district court. Accordingly, this court DENIES Short’s

request for a COA and DISMISSES this appeal. Short’s Motion to Pay Debt is

also DENIED.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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