                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    November 28, 2006
                                     TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                       Clerk of Court

 TREV OR P. JONES,

          Petitioner - A ppellant,
                                                        No. 06-1225
 v.                                              (D.C. No. 03-N-671 (PAC))
                                                         (D . Colo.)
 JOSEPH ORTIZ, Director, Colorado
 Department of Corrections; RICK
 SO ARES, W arden, Limon
 Correctional Facility, Limon,
 Colorado; KEN SA LAZAR, Attorney
 General, State of Colorado,

          Respondents - Appellees.



                                ORDER
                 DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Petitioner Trevor P. Jones, a state inmate appearing by counsel, requires a

certificate of appealability (COA) so that he may appeal the district court’s denial

of his habeas petition pursuant to 28 U.S.C. § 2254. See Fed. R. App. P.

22(b)(2). Because M r. Jones has failed to demonstrate that it is reasonably

debatable whether the district court’s ruling dismissing his claim was correct, see

Slack v. M cDaniel, 529 U.S. 473, 484 (2000), we deny a COA and dismiss the

appeal.
      In November 1996, M r. Jones, then seventeen years old, was involved in

the sham sale of a firearm in which M r. Jones and a companion planned to take

the victim’s money without actually handing over the gun. During the coarse of

the feigned transaction, the gun discharged, fatally wounding the victim.

Following a jury trial in state district court, M r. Jones w as found guilty of first-

degree felony murder, reckless manslaughter, robbery and conspiracy to commit

robbery. The state trial court sentenced M r. Jones to life imprisonment without

parole for felony murder and imposed concurrent sentences of six years’

imprisonment for reckless manslaughter, eight years’ imprisonment for robbery,

and eighteen months’ imprisonment for conspiracy to commit robbery.

      On direct appeal, the Colorado Court of Appeals (CCA) held that M r. Jones

could not be convicted of both felony murder and reckless manslaughter, vacated

M r. Jones’s conviction for reckless manslaughter, and affirmed his felony murder

conviction and its attendant life sentence. See People v. Jones, 990 P.2d 1098,

1102-03 (Colo. Ct. App. 2000). In this situation, Colorado law provides that the

court give effect to the most serious offense as reflected by the longest sentence.

Id. at 1102. Before the CCA, M r. Jones argued that his felony murder conviction

should be vacated, rather than his reckless manslaughter conviction, because to do

otherwise would violate his Sixth and Fourteenth Amendment rights to jury trial

and due process. See id. at 1104-05. M r. Jones reasserted those claims in his

federal habeas petition, which was referred to a magistrate judge. In a carefully

                                           -2-
reasoned order, the magistrate judge recommended that the petition be dismissed;

although the claims were properly exhausted, they were without merit. Aplt. App.

44, 48, 57. The district court adopted the recommendation after consideration of

the pertinent objections. Jones v. Ortiz, No. 03-CV-0671, 2006 W L 1050100, at

*5-9 (D. Colo. Apr. 20, 2006). On appeal, M r. Jones argues that the CCA

violated his right to due process and to trial by jury

      Because the CCA disposed of M r. Jones’s constitutional claims on the

merits, we review that decision under § 2254(d) and must uphold it unless it is

“contrary to” or “an unreasonable application of” clearly established federal law .

28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established

federal law if it “applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or arrives at a result different from that reached by a

Supreme Court decision involving “materially indistinguishable” facts. W illiams

v. Taylor, 529 U.S. 362, 405-06 (2000). “[A]n unreasonable application” of

clearly established federal law occurs when “the state court identifies the correct

governing legal principle from [Supreme Court] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.” Id. at 413.

      In rejecting M r. Jones’s constitutional claims, the CCA did not apply any

rule w hich contradicts governing Supreme Court case law ; nor did it arrive at a

result different from the Court under factually indistinguishable circumstances.

Thus, the C CA ’s decision w as not “contrary to” clearly established federal law.

                                          -3-
      The success of M r. Jones’s petition therefore hinges on whether the CCA’s

decision was an unreasonable application of clearly established federal law. None

of the Supreme Court decisions M r. Jones relies upon, and none we can find,

however, support his contention that the CCA, faced with two murder convictions

for the killing of a single victim, was constitutionally required to give effect to

the reckless manslaughter conviction.

      First, M ullaney v. W ilbur, 421 U.S. 684, 703-04 (1975), held that it is

inconsistent with due process to require a criminal defendant, rather than the

prosecution, to bear the burden of proof to establish that the defendant acted in a

heat of passion, and M orissette v. United States, 342 U.S. 246, 274 (1952),

explained that due process requires that “[w]here intent of the accused is an

ingredient of the crime charged, its existence is a question of fact which must be

submitted to the jury.” Here, there is no contention that the prosecution did not

bear the burden of proving all the essential elements of felony murder and that

those elements were not properly submitted to the jury for decision. Those cases

are therefore inapposite.

      M r. Jones also cites Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v.

New Jersey, 530 U.S. 466 (2000), for the proposition that “[i]f the State cannot

increase a defendant’s sentence based upon a fact that a jury never determined, it

must follow that the State cannot obtain an increased sentence . . . by . . . not

giving mitigating effect to a finding that was in fact made by the jury . . . .” Aplt.

                                          -4-
Br. at 37. W e are unpersuaded. To begin, M r. Jones’s conviction for reckless

manslaughter was hardly a mitigating fact found by the jury; it was a

determination by the jury that the State had proven the elements of that crime

beyond a reasonable doubt. The jury also happened to determine that the State

had proven the elements of felony murder beyond a reasonable doubt. Giving

effect to one of the jury’s cumulative guilty verdicts instead of another— even if it

is the conviction carrying the larger sentence— does not implicate the concern of

judicial factfinding raised in Ring and Apprendi. Also, the elements of the crime

for which M r. Jones is serving his sentence— namely, felony murder— were found

by a jury to have been proven beyond a reasonable doubt and thus his general

constitutional right to trial by jury was not offended. The CCA’s decision was

therefore consistent with both Sullivan v. Louisiana, 508 U.S. 275, 277 (1993),

and Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

      Finally, M r. Jones’s reliance on Oklahoma v. Hicks, 447 U.S. 343 (1980) is

unavailing. W hile Hicks acknowledges that a criminal defendant “has a

substantial and legitimate expectation that he will be deprived of his liberty only

to the extent determined by the jury in the exercise of its statutory discretion,” id.

at 346, M r. Jones’s expectation was fully honored when the jury exercised its

statutory discretion and sentenced him to life imprisonment based on his felony

murder conviction. And the CCA’s vacation of M r. Jones’s reckless manslaughter

conviction in no way affects that conclusion.

                                          -5-
      Accordingly, we DENY M r. Jones’s request for a COA, DENY his request

to proceed in forma pauperis, and DISM ISS the appeal.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




                                       -6-
