                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        April 4, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 SEAN BERN AT; HEN RY T.
 ZA K H A RIA N ; D A RR IN M A N N;
 JEREM Y REDFORD KEE; JOSEPH
 SC OV ELL; D O N A LD G . LA N G;
 DY LAN T. SERRE,

          Petitioners-Appellants,
 v.
                                                         No. 06-4183
                                                  (D.C. No. 1:05-CV -155-TS)
 H O N O RA BLE M IC HA EL G .
                                                       (District of Utah)
 ALLPHIN; HO NO RA BLE M ICH AEL
 K . B URTO N ; H O N O RA BLE GLENN
 DAW SON; HON ORABLE BRUCE
 LU BECK ; HONORA BLE D EN ISE P.
 LIN D BER G; H O N O RA BLE A NN
 B OY D EN ,

          Respondents-Appellees.



            OR DER DENYING CERTIFICATE O F APPEALABILITY *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Utah permits both district courts and justice courts to adjudicate criminal

cases. W hile district courts have general jurisdiction, localities have the option of

establishing justice courts with limited jurisdiction to adjudicate minor




      *
       This order is not binding precedent except under the doctrines of law of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.
misdemeanors. A defendant may appeal to a district court his or her conviction in

justice court. The filing of such an appeal, however, does not automatically

vacate the conviction or suspend the sentence; rather, the defendant, by filing an

application for a certificate of probable cause, must first convince the justice

court (and if unsuccessful, the district court) to grant a stay. Even if the

defendant fails in this endeavor, however, Utah gives the defendant an absolute

right to appeal to the district court, which reviews a justice court conviction de

novo.

        Petitioners in this consolidated case all pled guilty to, inter alia, alcohol- or

drug-related driving misdemeanors in justice court and appealed to district court.

On appeal, Petitioners argued that Utah’s tw o-tiered court system violates their

federal double jeopardy, due process, and equal protection rights. Specifically,

Petitioners argued that (1) Utah’s failure to vacate automatically Petitioners’

convictions pending their appeal violates their double jeopardy rights; (2) U tah’s

requirement that Petitioners must convince the justice or district court, through

applications for certificates of probable cause, to grant stays pending their appeal

trenches upon their due process rights; and (3) their guilty status pending appeal

in district court contravenes their equal protection guarantees. Petitioners

unsuccessfully litigated their claims through the Utah Supreme Court and the

United States Supreme Court.




                                           -2-
      Petitioners then collaterally challenged, under 28 U.S.C. § 2254, their Utah

misdemeanor convictions in the United States District Court for the District of

Utah, again raising claims of violations of their double jeopardy, due process, and

equal protection rights. The district court issued a detailed, 25-page opinion,

denying Petitioners’ requested relief. The district court found that the Utah

Supreme Court’s decision on Petitioners’ claims did not “result[] in a decision

that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as established by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), because (1) the Supreme Court has never

addressed the specific issue presented regarding double jeopardy in this case and

Utah law entitled Petitioners to an appeal de novo, see M em. & Order at 19-22;

(2) Petitioners’ applications for certificates of probable cause only pertain to the

district court’s granting of a stay of conviction pending their de novo appeal – not

the right to appeal itself, see id. at 22-23; and (3) Utah’s law granting de novo

actually treats Petitioners more favorably as it gives Petitioners a second chance

to relitigate arguments from justice court in district court, see id. at 24.

Petitioners now seek to appeal the district court’s ruling.

      Congress has instructed, however, that we may review a district court’s

denial of a Section 2254 petition only if a judge first issues a certificate of

appealability (“COA”); in turn, such a certificate may be issued only if the

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

                                          -3-
See 28 U.S.C. § 2253(c)(2). Under our rules, a habeas petitioner must present the

COA issue, in the first instance, to the district court. Because the district court

did not address the COA issue, our rules deem it denied. See 10th Cir. R. 22.1(c).

Petitioners failed to file with us an application for a COA; we therefore treat the

notice of appeal as an application for a COA. See Fed. R. App. P. 22(b).

      Based on our own independent review of the record in this case and for

substantially the same reasons outlined in the district court’s opinion on

Petitioners’ Section 2254 petitions, summarized above, we believe that Petitioners

have not met the threshold set by Congress for the issuance of a COA.

Accordingly, Petitioners’ COA is denied and this appeal is dismissed.



                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge




                                         -4-
