                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 22, 2013
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 ARTHUR PAUL MARTIN,

          Petitioner-Appellant,
 v.
                                                         No. 12-2136
 TIMOTHY HATCH, Warden; GARY                 (D.C. No. 6:10-CV-00746-RB-RHS)
 K. KING, Attorney General for the                        (D.N.M.)
 State of New Mexico,

          Respondents-Appellees.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Petitioner-Appellant Arthur Paul Martin, a prisoner in New Mexico state

custody, proceeding pro se, 1 seeks a certificate of appealability (“COA”) to

challenge the district court’s denial of his application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Having thoroughly reviewed the relevant law and

the record, we deny Mr. Martin’s application for a COA and dismiss this matter.

      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Martin is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
                                         I

      Mr. Martin shot and killed Rodney Mackall in an apartment. At the time of

the incident, Warren Ward was present in the apartment. In his statement to the

police, Mr. Ward recounted that he saw Mr. Martin with a gun, that he was in the

bedroom of the apartment when he heard an argument between Mr. Martin and

Mr. Mackall, and that Mr. Martin shot Mr. Mackall. At trial, police officers

testified to what they learned from Mr. Ward; however, Mr. Martin was unable to

cross-examine Mr. Ward because he invoked his Fifth Amendment right not to

testify. A police sergeant further testified that Mr. Martin admitted to shooting

Mr. Mackall, allegedly in self-defense, with a .38 caliber revolver, which he

admitted bringing to the apartment.

      Mr. Martin was convicted of first-degree murder, armed robbery, tampering

with evidence, and felon in possession of a firearm. On December 3, 2007, he

was sentenced to life imprisonment for the murder conviction; nine years, plus a

one-year firearm enhancement, for the armed robbery conviction; three years for

the tampering with evidence conviction; and eighteen months for the felon in

possession of a firearm conviction. The last two sentences were ordered to run

concurrently with the armed robbery sentence, and the armed robbery sentence

was ordered to run consecutively to the first-degree murder sentence, for a total

period of life plus ten years’ imprisonment. The New Mexico Supreme Court

affirmed Mr. Martin’s convictions on May 13, 2010.

                                        -2-
      On August 11, 2010, Mr. Martin filed a § 2254 petition for habeas relief in

the District of New Mexico. Adopting the magistrate judge’s Report and

Recommendation (“R&R”), the district court denied Mr. Martin’s habeas petition,

dismissed the action with prejudice, and denied a COA. Mr. Martin seeks to

appeal from the district court’s denial of his § 2254 petition.

                                          II

      A COA is a jurisdictional prerequisite to our review of the merits of

a § 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49

(2012) (discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)).

We will issue a COA only if the applicant makes “a substantial showing of the

denial of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th

Cir. 2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted);

accord Clark, 468 F.3d at 713. An applicant “satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude that the issues

presented are adequate to deserve encouragement to proceed further.” Dulworth

v. Jones, 496 F.3d 1133, 1136–37 (10th Cir. 2007) (quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)) (internal quotation marks omitted).




                                         -3-
                                         III

      Mr. Martin seeks a COA from our court, alleging a violation of his Sixth

Amendment right to confrontation with respect to Mr. Ward, insufficient evidence

with respect to the first-degree murder and armed robbery charges, and ineffective

assistance of counsel resulting in due process violations.

      Under the framework that the Supreme Court set out in Miller-El, we have

carefully reviewed Mr. Martin’s combined opening brief and application for COA

as well as the record—including the R&R that the district court adopted, which

recommended that Mr. Martin’s § 2254 petition be denied. Based upon this

review, we conclude that Mr. Martin is not entitled to a COA on any of his claims

because he has not made a substantial showing of the denial of a constitutional

right. For substantially the same reasons articulated by the district court,

reasonable jurists could not debate whether his § 2254 motion should have been

resolved in a different manner, and the issues that Mr. Martin seeks to raise on

appeal are not adequate to deserve encouragement to proceed further.




                                        -4-
                                      IV

      For the foregoing reasons, we deny Mr. Martin’s request for a COA and

dismiss this matter.



                                    ENTERED FOR THE COURT


                                    Jerome A. Holmes
                                    Circuit Judge




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