                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 5, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 WILLIAM SEAN CONEY,

       Petitioner - Appellant,
                                                        No. 09-1418
 v.                                            (D.C. No. 07-CV-01407-WYD)
                                                         (D. Colo.)
 ARISTEDES ZAVARAS, Executive
 Director; COLORADO
 DEPARTMENT OF CORRECTIONS;
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, EBEL, and LUCERO, Circuit Judges.



      Defendant-Appellant William Sean Coney, a Colorado state inmate

proceeding pro se, seeks a certificate of appealability (COA) to appeal the district

court’s denial of his 28 U.S.C. § 2254 motion. Because Mr. Coney has not made

“a substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a certificate of appealability (COA) and

dismiss the appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

      In 2001, a jury convicted Mr. Coney of murder, felony murder, retaliation
against a witness, and other related charges. People v. Coney (Coney I), 98 P.3d

930, 932 (Colo. Ct. App. 2004). The state court sentenced him to life in prison

without parole plus 30 years. 1 R. at 5, 53. In 2007, Mr. Coney filed a federal

habeas petition asserting eight claims:

             1. that the state trial court erred in allowing evidence of his
      prior drug arrests to be heard by the jury;

            2. that the state trial court erred by failing to give a
      contemporaneous limiting instruction when evidence of his prior
      drug arrests was admitted at trial;

            3. that the state trial court erred by admitting a “snitch list”
      and related testimony into evidence at trial;

           4. that the state trial court erred in allowing a records clerk
      employed by the El Paso County Sheriff’s Office to serve as a juror;

             5. that trial counsel was ineffective and violated his
      constitutional rights to counsel and due process;

             6. that his constitutional rights to due process, equal
      protection, and a fair trial by an impartial jury were violated when
      the state trial court allowed the case to go to a second trial after
      granting a defense motion for mistrial based upon discovery
      violations, and that the second trial violated double jeopardy
      protections;

            7. that his constitutional rights to due process, equal
      protection, and a fair trial were violated when trial counsel confessed
      Mr. Coney’s guilt during opening statement and closing argument;
      and

             8. that there was insufficient evidence to support his
      convictions of first-degree murder, felony murder, conspiracy to
      commit first-degree murder, kidnapping, aggravated intimidation of a
      witness, conspiracy to commit aggravated intimidation of a witness,
      retaliation against a witness, and conspiracy to commit retaliation

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      against a witness.

Coney v. Zavaras (Coney III), No. 07-cv-01407-WYD, 2009 WL 2868825, at *2

(D. Colo. Sept. 3, 2009); 1 R. at 4-51. In a well-crafted order, the district court

denied the petition and dismissed the action with prejudice, finding that claims

one, two and three were presented to the state courts as state-law evidentiary

claims and were therefore unexhausted, and that claims six and eight were

unexhausted based upon an express state procedural bar (a failure to raise them on

direct appeal). Coney III, 2009 WL 2868825, at *3-5. Finding that Mr. Coney

could not now raise these claims in the state courts, the district determined that he

had not demonstrated cause and prejudice or a fundamental miscarriage of justice

which would excuse state procedural bar; accordingly, the claims were

procedurally barred. Id. at *5-6. Applying the deferential standards of review of

§ 2254(d)(1) & (2) and the presumption that state court findings are correct,

§ 2254(e)(1), the district court rejected claims four, five and seven on the merits.

Id. at *6-11.

      To make a substantial showing of the denial of a constitutional right, Mr.

Coney was required to show that the district court’s resolution of one or more of

his claims was reasonably debatable and deserving of encouragement to proceed

further. Slack, 529 U.S. at 484. As to the claims rejected on the merits, Mr.

Coney is required to demonstrate that the district court’s resolution was

“debatable or wrong.” Id. As to any claim rejected on procedural grounds, he is

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required to show that the validity of the district court’s procedural ruling is

reasonably debatable, as is the underlying constitutional claim presented in the

petition. Id.

      On appeal, Mr. Coney argues that the district court erred in dismissing

several claims as procedurally barred and others on the merits. We have reviewed

the record and conclude that a plain procedural bar is apparent as to claims one,

two, three, six, and eight, as well as the equal protection component of his fourth

claim. See id. (where a plain procedural bar is apparent, a COA should be

denied). Additionally, the district court’s analysis on the remaining claims

decided on the merits is not reasonably debatable. These conclusions follow from

the record, therefore, an evidentiary hearing was unnecessary. Schiro v.

Landrigan, 550 U.S. 465, 474 (2000).

      We DENY a COA, DENY IFP as moot, and DISMISS the appeal.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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