                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS                 May 21, 2008
                                                               Elisabeth A. Shumaker
                               TENTH CIRCUIT                       Clerk of Court



JOEL DEMONDE POLK,

             Petitioner - Appellant,
                                                        No. 07-6261
       v.                                            (W.D. Oklahoma)
                                                  (D.C. No. CV-07-416-C)
DAVID PARKER, Warden,

             Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.




      This matter is before the court on Joel Demonde Polk’s pro se requests for

a certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Polk seeks a COA so he can appeal the denial of his 28 U.S.C.

§ 2254 habeas corpus petition. 28 U.S.C. § 2253(c)(1)(A) (providing no appeal

may be taken from a “final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court,” unless the

petitioner first obtains a COA). We grant Polk’s request to proceed in forma

pauperis. Nevertheless, because Polk 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).

      Polk was convicted in Oklahoma state court of one count of attempted

second degree burglary after previous convictions of two or more felonies. He

was sentenced to a thirty-year term of imprisonment. After exhausting his state

court remedies, Polk brought the instant § 2254 habeas petition raising the

following four claims: (1) his conviction is not supported by sufficient evidence;

(2) the trial court’s sentencing instructions were erroneous; (3) the prosecutor

engaged in misconduct at trial, depriving him of a fair proceeding; and (4) trial

counsel was ineffective in (a) failing to impeach a prosecution witness with his

grand jury testimony, (b) failing to object to the trial court’s sentencing

instruction, and (c) failing to object to the prosecutor’s allegedly improper

questions and comments. Polk’s § 2254 petition was assigned to a magistrate

judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B).

      The magistrate judge issued a comprehensive Report and Recommendation,

recommending that Polk’s § 2254 petition be denied. Applying the standards set

out in the AEDPA, the magistrate judge reviewed the trial record and concluded

the state court’s resolution of Polk’s sufficiency claim was not contrary to or an

unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319 (1979), and

was not based on an unreasonable determination of the facts. 28 U.S.C.

§ 2254(d). The magistrate judge concluded Polk’s claim of instructional error

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failed because the trial court’s sentencing instruction was consistent with state

law and thus presented no federal habeas issue. Okla. Stat. tit. 21, § 51.1(c)

(providing for a maximum sentence of life imprisonment for habitual offenders);

Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000) (holding that federal

habeas review of a state sentence “ends once we determine the sentence is within

the limitation set by statute”). The magistrate judge concluded Polk’s claims of

prosecutorial misconduct failed because the questions and comments of the

prosecutor were proper avenues of cross-examination and/or comments on the

evidence adduced at trial. Finally, the magistrate judge noted that Polk’s claims

of ineffective assistance as to the failure to object to the sentencing instructions

and failure to object to the prosecutor’s improper comments failed because those

underlying claims failed on the merits. As to Polk’s ineffective assistance claim

relating to trial counsel’s failure to impeach a witness with his grand jury

testimony, the magistrate judge concluded that in light of the evidence presented

at trial, Polk could not demonstrate any prejudice flowing from this error. The

district court adopted the Report and Recommendation and dismissed Polk’s

petition.

      To be entitled to a COA, Polk 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

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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 Polk 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 Polk 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 reviewed Polk’s application for a COA and appellate filings, 1 the

magistrate judge’s Report and Recommendation, the district court’s Order, and

the entire record before this court pursuant to the framework set out by the

Supreme Court in Miller-El, this court concludes Polk is not entitled to a COA.

The district court’s resolution of Polk’s § 2254 petition is not reasonably subject

to debate and the issues Polk seeks to raise on appeal are not adequate to deserve

further proceedings. In particular, we note that we have nothing to add to the

magistrate judge’s exceedingly well-stated Report and Recommendation.




      1
          We hereby grant Polk’s motion for leave to supplement his pleadings.

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      Accordingly, for those reasons set out in the magistrate judge’s report and

recommendation and the district court’s Order, this court DENIES Polk’s request

for a COA and DISMISSES this appeal.

                                      ENTERED FOR THE COURT




                                      Elisabeth A. Shumaker, Clerk




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