                                                                                     FILED
                                                                         United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                              Tenth Circuit

                                   TENTH CIRCUIT                                August 1, 2011

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
DWAYNE WINFREY,

       Petitioner - Appellant,

v.                                                            No. 11-5070
                                                              (N.D. Okla.)
JAMES RUDEK, Warden,                             (D.C. No. 4:08-CV-00174-CVE-TLW)

       Respondent - Appellee.




                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY,
                          AND DISMISSING APPEAL


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


       Dwayne Winfrey, a state prisoner proceeding pro se,1 wants to appeal from the

district court's denial of his 28 U.S.C.§ 2254 habeas petition. We deny his request for a

Certificate of Appealability (COA).

       The parties are familiar with the historical and procedural facts, which will not be

repeated here. Winfrey was convicted by a jury of Trafficking in Illegal Drugs (Cocaine)

(Count I), and Failure to Obtain a Drug Tax Stamp (Count II), both after a former felony

conviction. He was sentenced to 20 years imprisonment and fined $25,000 on Count I

       1
        We liberally construe Winfrey’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
and $3,000 on Count II. His conviction was affirmed on direct appeal. He was

represented by counsel at trial and on appeal. He was unsuccessful in state post-

conviction proceedings.

       Winfrey raises the following issues in his request for a COA:

       1.       His confession should have been suppressed because he did not sign a

written waiver of his right to counsel. (No waiver was obtained, but the trial court

conducted a Jackson v. Denno2 hearing and concluded his waiver of Miranda3 rights and

his confession were both freely and voluntarily made.)

       2.       A search warrant issued by a state magistrate was not supported by an

adequate affidavit. (This issue was raised and denied in a state post-conviction

proceeding. Winfrey appealed but his untimely appeal was dismissed by the Oklahoma

Court of Criminal Appeals (OCCA). The district court concluded this issue was

procedurally defaulted on independent and adequate state grounds, and he failed to show

cause and prejudice for the default or make a colorable claim of factual innocence.)

       3.       He was denied due process by the district court because it decided his

habeas petition without first referring the matter to a magistrate judge as permitted by 28

U.S.C. § 636. (This claim is obviously frivolous.)

       A COA is a jurisdictional prerequisite to our review of a petition for a writ of

habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue a COA

       2
         Jackson v. Denno, 378 U.S. 368, 376 (1964) (“A defendant objecting to the
admission of a confession is entitled to a fair hearing in which both the underlying factual
issues and the voluntariness of his confession are actually and reliably determined.”).
       3
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                             -2-
“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 such a showing, an applicant 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) (quotations omitted). In evaluating whether an applicant has satisfied

this burden, we undertake “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each of his claims. Miller-El, 537 U.S. at 338.

       In cogent orders the district court thoroughly and correctly addressed and resolved

the issues raised by Winfrey. As no jurist of reason could reasonably debate the

correctness of the district court’s decisions, we DENY the request for a COA and

DISMISS this matter.

       The district court permitted Winfrey to proceed in forma pauperis on appeal. We

have not revisited that order.

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




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