                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 8, 2008
                    UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



FREDRICK CAMERON,

               Petitioner - Appellant,

          v.                                            No. 08-3023
                                                         (D. Kansas)
LOUIS BRUCE, Warden, Hutchinson                  (D.C. No. 07-CV- 3106-CM)
Correctional Facility; STEPHEN N.
SIX, * Attorney General of Kansas,

               Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Appellant, Fredrick Cameron, seeks a certificate of appealability (“COA”)

from this court so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be

taken from a final order disposing of a § 2254 petition unless the petitioner first

obtains a COA). Because Cameron has not “made a substantial showing of the

denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. Id. § 2253(c)(2).


      *
       Stephen N. Six replaced Paul Morrison as Attorney General of Kansas on
January 31, 2008. See F.R.A.P. Rule 43(c)(2).
      Cameron was convicted by a Kansas jury of one count of criminal

possession of a firearm, in violation of Kan. Stat. Ann. § 21-4204(a)(2), and one

count of unlawful possession of a controlled substance, in violation of Kan. Stat.

Ann. § 65-4162(a)(3). He was sentenced to concurrent terms of twenty-one

months’ imprisonment on the firearm charge and twelve months’ imprisonment on

the drug charge. He filed a direct appeal with the Kansas Court of Appeals,

arguing (1) the state did not presented sufficient evidence to support the firearm

conviction and (2) his sentence was unconstitutionally increased by using prior

convictions not submitted to a jury and proved beyond a reasonable doubt. The

Kansas Court of Appeals denied relief on both claims. As to the sufficiency of

the evidence claim, the court reviewed the evidence presented at trial in the light

most favorable to the state and concluded a rational jury could have convicted

Cameron on that evidence. The court rejected the sentencing claim, holding

recidivism is specifically exempted from the Supreme Court’s rulings in Apprendi

v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296

(2004). See State v. Ivory, 41 P.3d 781, 783 (Kan. 2002).

      Cameron filed the instant § 2254 habeas petition on April 18, 2007. In his

petition, Cameron raised the sufficiency-of-the-evidence and sentencing claims

previously raised on direct appeal. Applying the standard set forth in the

Antiterrorism and Effective Death Penalty Act, the district court concluded the

Kansas Court of Appeals’ adjudication of those two claims was not contrary to,

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nor an unreasonable application of clearly established federal law. See Jackson v.

Virginia, 443 U.S. 307, 3109 (1979); see also Blakely, 542 U.S. at 301;

Apprendi, 530 U.S. at 490; Almendarez-Torres v. United States, 523 U.S. 224,

226-27 (1998).

      To be entitled to a COA, Cameron must make “a substantial showing of the

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

showing, he 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Cameron 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 Cameron 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. (quotations omitted).

      This court has reviewed Cameron’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that Cameron

is not entitled to a COA. The district court’s resolution of Cameron’s claims is

not reasonably subject to debate and the claims are not adequate to deserve

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further proceedings. Accordingly, Cameron has not “made a substantial showing

of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C.

§ 2253(c)(2).

      This court denies Cameron’s request for a COA and dismisses this appeal.

                                               ENTERED FOR THE COURT




                                               Elisabeth A. Shumaker, Clerk




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