                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      July 6, 2009
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court


JASON P. CLAUSEN,

              Petitioner - Appellant,

v.
                                                        No. 08-1467
KEVIN MILYARD, Warden, Sterling                        (D. Colorado)
Correctional Facility; ARISTEDES W.          (D.C. No. 08-CV-00500-LTB-CBS)
ZAVARAS, Director, Colorado DOC;
JOHN SUTHERS, the Attorney
General of the State of Colorado,

              Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.




      Proceeding pro se, Jason P. Clausen 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 application. See 28 U.S.C. § 2253(c)(1)(A) (providing that

no appeal may be taken from a final order disposing of a § 2254 application

unless the petitioner first obtains a COA). Because Clausen 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).
      In 2003, Clausen was charged with one count of murder in the first degree

after deliberation, one count of murder in the first degree, and one count of

second degree kidnapping. Pursuant to the terms of a written plea agreement,

Clausen pleaded guilty to first degree murder; the remaining charges were

dismissed and the state of Colorado agreed not to seek the death penalty. The

plea agreement specifically provided that the minimum penalty for the offense to

which Clausen pleaded guilty was life imprisonment without the possibility of

parole and that was the sentence imposed by the Colorado trial court. Clausen

filed an application for post-conviction relief pursuant to Rule 35 of the Colorado

Rules of Criminal Procedure. The state trial court denied the Rule 35 motion and

that decision was affirmed by the Colorado Court of Appeals. The Colorado

Supreme Court denied Clausen’s petition for writ of certiorari.

      Clausen filed the instant § 2254 petition in federal district court on March

11, 2008, alleging (1) he was denied effective assistance of trial counsel, (2) his

due process rights were violated when the state trial court refused to grant him an

evidentiary hearing on his Rule 35 motion, and (3) the Colorado Court of Appeals

applied an erroneous standard of proof when it considered his Rule 35 motion.

Clausen’s petition was referred to a magistrate judge who recommended that it be

denied. Applying the standards set out in the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), the magistrate judge’s Report and Recommendation

(“R&R”) concluded the Colorado courts’ adjudication of Clausen’s ineffective

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assistance claim was not contrary to, nor an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d). The R&R recommended denying

relief on the remaining two issues because they did not raise cognizable federal

habeas claims. See Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)

(“[B]ecause the constitutional error [petitioner] raises focuses only on the State’s

post-conviction remedy and not the judgment which provides the basis for his

incarceration, it states no cognizable federal habeas claim.”).

      Clausen sought and was granted an extension of time to October 24, 2008,

to file objections to the R&R. On October 28, 2008, the district court entered an

order adopting the recommendations in the R&R and dismissing Clausen’s § 2254

application with prejudice. The order noted Clausen had failed to file written

objections to the R&R. The district court, however, received Clausen’s

objections one day later, on October 29, 2008. Clausen then filed a Motion to

Vacate Order, arguing the district court should conduct a de novo review of the

R&R because his objections were timely filed pursuant to the prison mailbox rule.

See Houston v. Lack, 487 U.S. 266, 273-76 (1988). The district court denied

Clausen’s motion, concluding he failed to allege or prove that he made timely use

of the prison’s legal mail system. See Price v. Philpot, 420 F.3d 1158, 1166 (10th

Cir. 2005); Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (per curiam)

(applying the prison mailbox rule to objections to a magistrate judge’s report).




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        In his COA application, Clausen challenges the district court’s refusal to

consider his objections and has attached what appears to be a copy of the prison’s

legal mail log. Because this document was not presented to the district court, the

court did not err when it concluded Clausen failed to prove he made timely use of

the prison’s legal mail system to send his objections. 1 See Price, 420 F.3d at

1166.

        To be entitled to a COA, Clausen 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 “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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). In evaluating

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

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

of his claims. Miller-El at 338. Although Clausen need not demonstrate his


        1
        This court has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate.” Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991). “Our waiver rule provides that the failure to
make timely objection to the magistrate’s findings or recommendations waives
appellate review of both factual and legal questions.” Id. The magistrate’s order,
however, did not advise Clausen of the consequences arising from a failure to file
objections. Thus, the firm waiver rule does not apply in this case. See Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996) (“This rule does not apply,
however, when . . . the magistrate’s order does not clearly apprise a pro se litigant
of the consequences of a failure to object.”).

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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. (quotations

omitted).

      This court has reviewed Clausen’s application for a COA and appellate

brief, the magistrate’s R&R, 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 that Clausen is not entitled to a COA. The district court’s resolution of

the claims raised in Clausen’s § 2254 application is not reasonably subject to

debate and the claims are not adequate to deserve further proceedings.

Accordingly, Clausen has not “made a substantial showing of the denial of a

constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Clausen’s request for a COA and dismisses this appeal.

Clausen’s application to proceed in forma pauperis on appeal is granted.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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