                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      July 15, 2009
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


CRAIG L. POINDEXTER,

              Petitioner - Appellant,

v.                                                       No. 09-1012
                                            (D.C. No. 1:07-CV-00544-PAB-CBS)
ARISTEDES ZAVARES; WARDEN                               (D. Colorado)
REID; ATTORNEY GENERAL OF
THE STATE OF COLORADO,

              Respondents - Appellees.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, Craig Poindexter 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 Poindexter 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).

      After a Colorado state jury trial, Poindexter was convicted of second

degree criminal trespass and third degree assault. A mistrial was declared on a
count of first degree sexual assault. Poindexter avoided a retrial by pleading

guilty to possession of a schedule II controlled substance in exchange for

dismissal of the first degree sexual assault count. He was sentenced to five years’

incarceration and three years’ mandatory parole. After his release from prison,

Poindexter violated the terms of his parole and was thereafter convicted of

escape. Poindexter filed a Colorado Crim. P. 35(c) motion challenging his escape

conviction by collaterally attacking the sentence he received for the 1999

controlled substance conviction. Specifically, he argued his controlled substance

conviction qualified as sexual offense pursuant to Colo. Rev. Stat. § 17-2-201(5)

and, thus, he was erroneously sentenced to mandatory parole instead of

discretionary parole. See People v. Rockwell, 125 P.3d 410, 420 (Colo. 2005).

The Colorado trial court denied relief and the Colorado Court of Appeals

affirmed the judgment, concluding Poindexter failed to prove the factual basis for

his conviction involved unlawful sexual behavior.

      Poindexter filed the instant § 2254 application on March 20, 2007, raising

three claims for relief: (1) he was erroneously sentenced to a term of mandatory

parole for the controlled substance conviction, (2) he could not have been

convicted of escape because the home in which he was confined was not an

approved Intensive Supervised Parole site, and (3) another individual’s

conviction was used to charge him with escape. Poindexter’s application was

referred to a magistrate judge who prepared a comprehensive Report and

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

discussing Poindexter’s objections, the district court adopted the findings and

conclusions in the R&R and denied the habeas application.

      Poindexter seeks a COA only on the claim relating to his term of

mandatory parole. To be entitled to a COA, Poindexter 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 Poindexter 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 Poindexter

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

of the claims raised in Poindexter’s § 2254 application is not reasonably subject

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

Accordingly, Poindexter 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 Poindexter’s request for a COA and dismisses this

appeal. Poindexter’s motion to supplement the record and his application to

proceed in forma pauperis on appeal are granted.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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