                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      June 26, 2009
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



HARLAN EVANS,

              Petitioner - Appellant,

v.                                                      No. 08-6272
                                                      (W.D. Oklahoma)
GREG PROVINCE, Warden, and                      (D.C. No. 5:08-CV-00711-HE)
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      This matter is before the court on Harlan Evans’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Evans seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.

§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Evans’s request to

proceed on appeal in forma pauperis. Because Evans has not, however, “made a

substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this

court denies his request for a COA and dismisses this appeal.

      A jury convicted Evans in Oklahoma state court on two counts of

conspiring to traffic in illegal drugs (one conspiracy involving methamphetamine
and one involving marijuana), two counts of trafficking in methamphetamine, one

count of unlawful distribution of marijuana, and one count of using a

communication facility to facilitate trafficking in illegal drugs. Pursuant to the

jury’s recommendation, the state trial court sentenced Evans to life plus 285

years’ imprisonment. Evans’s convictions were affirmed on direct appeal to the

Oklahoma Court of Criminal Appeals (“OCCA”). Evans v. State, 157 P.3d 139

(Okla. Crim. App. 2007). The OCCA affirmed the denial of Evans’s state-court

based request for post-conviction relief in an unpublished order. Evans v.

Province, No. CIV-08-0711-HE, 2008 WL 5101312 (Okla. Crim. App. Nov. 26,

2008).

         Evans then filed the instant § 2254 petition in federal district court, raising

ten grounds for relief. The matter was referred to federal magistrate judge Doyle

Argo for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). In an

exceedingly comprehensive Report and Recommendation, magistrate judge Argo

analyzed each ground for relief set out in Evans’s § 2254 habeas petition and

recommended that the district court deny habeas relief. The district court adopted

the Report and Recommendation and denied Evans’s petition.

         The granting of a COA is a jurisdictional prerequisite to Evans’s appeal

from the dismissal of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). To be entitled to a COA, Evans must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

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requisite showing, he must demonstrate “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). In evaluating whether Evans has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Evans need

not demonstrate his appeal will succeed to be entitled to a COA, he must “prove

something more than the absence of frivolity or the existence of mere good faith.”

Id.

      Having undertaken a review of Evans’s appellate filings, the district court’s

Order, the magistrate judge’s well-stated Report and Recommendation, and the

entire record before this court, we conclude Evans is not entitled to a COA. In so

concluding, this court has nothing to add to the comprehensive analysis set out by

magistrate judge Argo in his Report and Recommendation. Accordingly, this

court DENIES Evans’s request for a COA and DISMISSES this appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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