                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 March 17, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



CLYDE E. SAVAGE,

             Petitioner - Appellant,

v.
                                                        No. 08-1358
                                                       (D. Colorado)
TRAVIS TRANI, * Warden, Limon
                                           (D.C. No. 1:07-CV-01419-ZLW-MEH)
Correctional Facility; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

             Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Proceeding pro se, Clyde Savage seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the habeas petition he filed

pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Savage’s motion to proceed in forma pauperis is

granted.



      *
       Pursuant to Fed. R. App. P. 43(c)(2), Travis Trani is substituted for Steven
Hartley as Warden of the Limon Correctional Facility, effective September 2008.
      In June 1988, a Colorado jury convicted Savage of first degree murder in

the shooting death of a twelve-year-old boy. Savage was sentenced to life

imprisonment with the possibility of parole. Savage’s conviction was affirmed on

direct appeal. He then sought state post-conviction relief, filing a motion

pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure wherein he

alleged his trial attorneys (1) failed to call or properly use expert witnesses,

especially in the area of ballistics and (2) pursued a frivolous “alternate suspect”

defense. When that motion was denied, Savage filed a second state post-

conviction motion claiming the prosecution suppressed exculpatory evidence and

reasserting his ineffective assistance of counsel claim. The second post-

conviction motion was also denied.

      Savage filed the instant § 2254 application on July 6, 2007. He raised two

claims in his application: (1) he was denied his constitutional right to due process

because the ballistics expert who testified at his trial committed perjury, and (2)

his trial counsel was ineffective for basing his defense on an alternate suspect

theory. The district court denied relief, concluding Savage’s claims were

procedurally barred because they were not exhausted in the Colorado state

proceedings 1 and Savage failed to demonstrate cause and prejudice for the default


      1
       Although Savage raised the ineffective assistance claim in his first post-
conviction motion, he appealed its denial only on the basis that the Colorado trial
court made inadequate findings to support its ruling. He did not appeal the trial
court’s substantive ruling.

                                          -2-
or establish that a fundamental miscarriage of justice would occur if the merits of

the claims were not addressed. See Coleman v. Thompson, 501 U.S. 722, 750

(1991).

      This court cannot grant Savage a COA unless he can 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Savage has carried his burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). Savage is not required

to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” Id. (quotations omitted).

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

brief, 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 Savage

is not entitled to a COA. Savage’s argument that he can establish cause and

prejudice to overcome the procedural bar by showing he received ineffective

assistance from the attorney who represented him in his state post-conviction




                                          -3-
proceedings is unavailing because there is no right to counsel in post-conviction

proceedings. United States v. Prows, 448 F.3d 1223, 1229 (10th Cir. 2006).

      The district court’s resolution of Savage’s claims is not reasonably subject

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

Accordingly, Savage 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 Savage’s request for a COA and dismisses this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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