                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                 October 24, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 C HRISTO PH ER AR AG O N ,

                 Petitioner-A ppellant,                  No. 07-1224
          v.                                         District of Colorado
 M A RK BR OA D D U S and JO H N                (D.C. No. 07-CV-00664-ZLW )
 SU THERS, Colorado State Attorney
 General,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.


      Christopher Aragon, a state prisoner proceeding pro se, seeks a certificate

of appealability (COA) that would allow him to appeal from the district court’s

order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C.

§ 2253(c)(1)(A). Because w e conclude that M r. Aragon has failed to make “a

substantial show ing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      M r. Aragon was convicted of first degree murder and related charges in

M ay 2003, pursuant to a guilty plea. He did not appeal, but over a year later, on


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
February 8, 2005, he filed a motion in state court for post-conviction relief, which

was denied on M arch 2, 2005. According to M r. Aragon’s complaint, he filed a

timely notice of appeal but the Colorado Court of Appeals dismissed the appeal as

untimely. M r. Aragon filed an application for habeas corpus in federal district

court, pursuant to 28 U.S.C. § 2254, arguing that the state appellate court’s

dismissal of his appeal was erroneous and a violation of his due process rights.

The federal district court denied his habeas application on the ground that the

constitutionality of state post-conviction procedures may not be challenged on

federal habeas.

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

      The district court was unquestionably correct that the constitutionality of

state post-conviction procedures may not be challenged in a federal habeas action.

See Sellers v. W ard, 135 F.3d 1333, 1339 (10th Cir. 1998). The habeas w rit

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provides a basis for challenging the legality of a prisoner’s confinement, which

rests on his initial conviction. A state is not constitutionally required to provide

post-conviction process, Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), and

even if such process w ere defective, the defect would not impugn the prisoner’s

conviction or the legality of his confinement.

      Accordingly, we D EN Y M r. Aragon’s request for a COA and DISM ISS

this appeal. Petitioner’s motion to proceed in form a pauperis is also DENIED.

                                                     Entered for the Court,

                                                     M ichael W . M cConnell
                                                     Circuit Judge




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