                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 28, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



SAMUEL W. WEICHT,

              Petitioner - Appellant,
                                                        No. 09-7039
       v.                                             (E.D. Oklahoma)
                                           (D.C. No. 6:06-CV-00055-RAW-KEW)
WALTER DINWIDDIE, Warden,

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Appellant, Samuel W. Weicht, 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 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because Weicht 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).

      Weicht was convicted by an Oklahoma jury of second degree arson, larceny

of an automobile, third degree arson, and second degree burglary. He appealed

his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”), raising
six claims of error. The OCCA denied relief on all claims. Weicht filed the

instant § 2254 federal habeas petition on February 7, 2008, raising the same six

claims: (1) the only evidence regarding his participation in the crimes of

conviction was the uncorroborated testimony of an accomplice, (2) his trial was

not commenced withing the time constrains of the Interstate Agreement on

Detainers Act, (3) he was deprived of his constitutional right to a speedy trial, (4)

the admission of evidence of other crimes during the first stage of the trial unduly

prejudiced him and deprived him of a fair trial, (5) his waiver of counsel at the

preliminary hearing was not made knowingly and voluntarily, and (6) the state

failed to prove an essential element of the burglary charge.

      Weicht’s petition was referred to a magistrate judge who prepared a written

Report and Recommendation (R&R) recommending that it be denied.

Specifically, the R&R recommended denying habeas relief on Weicht’s

challenges to the accomplice testimony and the admission of evidence of other

crimes, concluding he failed to demonstrate his trial was rendered fundamentally

unfair. See Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002). Applying the

standard set forth in the Antiterrorism and Effective Death Penalty Act, the R&R

also concluded the OCCA’s adjudication of Weicht’s remaining claims was not

contrary to, nor an unreasonable application of, clearly established federal law.

28 U.S.C. § 2254(d). After considering Weicht’s written objections to the R&R,




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the district court adopted the findings and conclusions in the R&R and denied

Weicht’s habeas petition.

      To be entitled to a COA, Weicht 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) (quotations

omitted). In evaluating whether Weicht 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 Weicht 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. (quotations omitted).

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

brief, the 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

Weicht is not entitled to a COA. The district court’s resolution of Weicht’s

claims is not reasonably subject to debate and the claims are not adequate to

deserve further proceedings.




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      Because Weicht has not “made a substantial showing of the denial of a

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

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

motion to proceed in forma pauperis on appeal is granted.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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