                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   March 10, 2010
                                                                  Elisabeth A. Shumaker
                                 TENTH CIRCUIT                        Clerk of Court



 LAWRENCE M. JACKSON,

               Petitioner - Appellant,                   No. 09-4173
          v.                                               (D. Utah)
 CLINT FRIEL, Warden,                           (D.C. No. 2:05-CV-00365-DB)

               Respondent - Appellee.


                            ORDER DENYING
                     CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Petitioner and appellant Lawrence M. Jackson, proceeding pro se, seeks a

certificate of appealability (“COA”), in order to appeal the denial of a pending

Fed. R. Civ. P. 59(e) motion to alter or amend the district court’s prior judgment

denying Mr. Jackson’s 28 U.S.C. § 2254 habeas petition. We decline to grant a

COA and dismiss this matter.

      In 1998, Mr. Jackson pled guilty to rape of a child and was sentenced to a

term of fifteen years to life. His sentence was affirmed on direct appeal by the

Utah Court of Appeals. The Utah Supreme Court denied his petition for a writ of

certiorari. Mr. Jackson then filed a post-conviction petition, which was

dismissed, and that dismissal was affirmed on appeal. He did not file for

certiorari review in the Utah Supreme Court.

      In this § 2254 action, he raised all of the issues raised on direct appeal and

in his post-conviction petition, as well as six new issues. The district court held

that all of the issues except for the two which he presented to the Utah Supreme

Court on direct appeal were unexhausted and procedurally defaulted. Further, the

court held Mr. Jackson was unable to establish cause for his procedural default.

Thus, the court did not address the merits of those issues. It did address the two

exhausted issues, with respect to which the Utah Supreme Court had denied

certiorari on Mr. Jackson’s direct appeal. Regarding those two issues, the district

court observed that the first issue was an allegation that the state trial court had

violated state law, which is not properly the subject of a federal habeas action,

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and the second issue had been properly analyzed by the Utah Supreme Court

under the standards mandated by the Antiterrorism and Effective Death Penalty

Act (“AEDPA”). The court therefore denied relief on those issues, and it denied

Mr. Jackson’s motion to alter or amend that judgment. The court also denied a

COA.

       The issuance of a COA is jurisdictional. We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this showing, Mr. Jackson 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Where the district court has rejected a

claim on its merits, the “petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Id. When the district court dismisses a petition on procedural grounds,

the applicant must not only make a substantial showing of the denial of a

constitutional right; he must also demonstrate that the district court’s “dismissal

on procedural grounds was debatable or incorrect.” Id. at 485. “Where a plain

procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred




                                          -3-
in dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. at 484.

      Mr. Jackson fails to make a substantial showing of the denial of a

constitutional right, nor does he address the procedural grounds, other than to

seek permission to now exhaust his unexhausted claims, which he cannot do.

Accordingly, we deny Mr. Jackson a COA. We also deny Mr. Jackson permission

to proceed on appeal in forma pauperis. 1

      For the foregoing reasons, we DENY a COA and DENY permission to

proceed ifp.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




      1
       Mr. Jackson filed a motion before the district court to stay his habeas
action so that he could exhaust his issues in state court. The district court denied
this motion. No notice of appeal from that denial has been filed.

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