                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 4, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 HAROLD LEE BELTON,

               Petitioner - Appellant,                   No. 09-6222
          v.                                           (W.D. Oklahoma)
 JUSTIN JONES,                                   (D.C. No. 07-CV-00757-W)

               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 proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      Petitioner and appellant Harold Lee Belton, proceeding pro se, seeks a

certificate of appealability (“COA”) in order to appeal the district court’s denial

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. For the following


      *
       This order is not binding precedent except under the doctrines of law of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.
reasons, we deny him a COA, deny his request to proceed on appeal in forma

pauperis, and dismiss this appeal.



                                  BACKGROUND

      Mr. Belton was found guilty, following a jury trial, of rape of his nine-

year-old grandson. At a second stage of the jury proceedings, the jury determined

that Mr. Belton had previously been convicted of two or more felony convictions

and recommended a sentence of twenty years’ imprisonment. The trial court

followed the jury’s recommendation and sentenced Mr. Belton to twenty years.

      Mr. Belton filed a direct appeal, arguing (1) insufficient evidence; (2)

improper admission of other crimes evidence; and (3) error in conducting a

bifurcated proceeding. The Oklahoma Court of Criminal Appeals (“OCCA”)

rejected these claims and affirmed Mr. Belton’s conviction and sentence in a

summary opinion. Belton v. State, No. F-2004-1306 (Okla. Crim. App. March 24,

2006) (unpublished), R. Vol. 1 at 98.

      Mr. Belton then filed an application for post-conviction relief, based upon

(1) ineffective assistance of appellate counsel; (2) ineffective assistance of trial

counsel; (3) improper use of certain former felony convictions for sentence

enhancement purposes; and (4) violation of his right to a speedy trial. The

district court denied the application for post-conviction relief, and the OCCA

affirmed. In affirming the district court’s decision, the OCCA held that

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Mr. Belton was procedurally barred from raising all the claims he could have

raised in his direct appeal, including his claim of ineffective assistance of trial

counsel. The OCCA reviewed and rejected on its merits Mr. Belton’s claim that

appellate counsel rendered ineffective assistance by failing to raise the other three

issues on direct appeal.

      Mr. Belton then brought this 28 U.S.C. § 2254 habeas petition in federal

district court. The district court referred the matter to a Magistrate Judge for

initial proceedings consistence with 28 U.S.C. § 636(b)(1)(B) and (C).

Mr. Belton argued five issues: (1) appellate counsel was ineffective for failing to

raise the claims Mr. Belton first raised in his application for post-conviction

relief; (2) ineffective assistance of trial counsel; (3) his sentence was improperly

enhanced; (4) his right to a speedy trial was violated; and (5) the evidence was

insufficient to sustain his conviction. In a carefully reasoned and thorough

twenty-seven page report and recommendation, the magistrate judge

recommended that Mr. Belton’s petition for a writ of habeas corpus be denied.

The district court adopted the report and recommendation and denied

Mr. Belton’s habeas petition. The court then denied Mr. Belton’s application for

a COA, stating:

      the Court rejected Belton’s claims on their merits. Therefore, Belton
      “must demonstrate that reasonable jurists would find th[is] . . .
      [C]ourt’s assessment of [his] . . . constitutional claims debatable or
      wrong.” Upon review of the record, the Court finds Belton has failed
      to make the requisite showing with regard to these claims.

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Order (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The district court

also denied Mr. Belton leave to appeal in forma pauperis, on the ground that

“upon review of the record[,] . . . Belton would not be able to present a reasoned,

nonfrivolous argument on the law and facts in support of the issues to be raised

on appeal; thus, Belton’s appeal is not taken in good faith.” Order at 2.

      Mr. Belton now seeks a COA to enable him to appeal the district court’s

denial of his habeas petition. Issuance of a COA is jurisdictional. Miller-El v.

Cockrell, 537 U.S. 322, 335-36 (2003). To be entitled to a COA, Mr. Belton 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, 537 U.S. at 336 (quotations omitted).

      We have carefully read the entire record, all of Mr. Belton’s submissions,

and the thorough report and recommendation of the magistrate, subsequently

adopted by the district court. For substantially the reasons stated in the report




                                          -4-
and recommendation, we DENY Mr. Belton’s request for a COA and DISMISS

this matter. We also DENY his request for leave to proceed on appeal in forma

pauperis.

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




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