Lucero v. Golder, 10th Cir. (2004)
Lucero v. Golder, 10th Cir. (2004)
Lucero v. Golder, 10th Cir. (2004)
NOV 24 2004
PATRICK FISHER
Clerk
CONRAD LUCERO,
Petitioner - Appellant,
v.
GARY GOLDER; COLORADO
ATTORNEY GENERAL,
No. 04-1165
(D. Colorado)
(D.Ct. No. 03-Z-2424)
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL *
Before SEYMOUR, LUCERO, and OBRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is
therefore ordered submitted without oral argument.
This order is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. The court generally disfavors the citation of orders;
nevertheless, an order may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
In his request for a COA, Lucero raises claims not presented in his habeas
petition, to wit, that the plea agreement under which he pled guilty was illegal, that his
plea was unknowing and involuntary and that trial counsel rendered ineffective assistance
by threatening and coercing him. We decline to consider these claims inasmuch as they
were not presented to the district court. Walker v. Mather (In re Walker), 959 F.2d 894,
896 (10th Cir. 1992).
3
All Colorado statutory references are to the 1992 version of the Colorado Revised
Statutes.
4
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See also COLO. REV. STAT. 16-11-309(1)(a) (Any person convicted of a crime
of violence shall be sentenced pursuant to section 18-1-105(9), C.R.S., to a term of
incarceration of at least the midpoint in the presumptive range, but not more than twice
the maximum term, provided for such offense in section 18-1-105(1)(a), C.R.S. . . . ).
5
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He makes the same claim in his habeas petition filed December 2, 2003. 6 The
Colorado Court of Appeals denied relief on the ground Apprendi was not
retroactively applicable to cases on collateral review (citing to People v.
Bradbury, 68 P.3d 494 (Colo. Ct. App. 2002)). Applying 2254(d) deference to
the state court decision, 7 the district court denied habeas relief for the same
reason (citing to United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert.
denied, 537 U.S. 961 (2002)), and denied a COA.
A COA is a jurisdictional pre-requisite to our review. One may issue only
"if the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
The petitioner must demonstrate that reasonable jurists would find the court's
assessment of the claims debatable or wrong. Id. at 327 (citing to Slack v.
Although Lucero states three separate claims in his habeas petition (aggravated
sentence is unconstitutional; 18-1-105(9) is unconstitutional; characterization of 18-3103 as a crime of violence under 16-11-309 is unconstitutional), we agree with the
district court that each claim is based on Apprendi.
6
28 U.S.C. 2254(d)(1).
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McDaniel, 529 U.S. 473, 484 (2000)). 8 In reviewing for a COA, we are forbidden
from giving full consideration to the factual or legal bases urged in support of the
claims. To the contrary, we overview the claims and make a general assessment
of their merit. Id. at 336. Although petitioner, in requesting a COA, is not
required to prove the merits of the case, the threshold of proof is higher than good
faith or lack of frivolity. Id. at 338.
We agree with the district court that Mora is dispositive:
Apprendi clarifies that certain questions that were previously thought
to be properly determined by the court must now be proved to a jury
beyond a reasonable doubt. While this rule arguably increases the
accuracy of convictions, it is a rule that simply shifts the fact-finding
duties from an impartial judge to a jury.
293 F.3d 1213, 1219 (quotation marks omitted). [A]pprendi is not a watershed
decision and hence is not retroactively applicable to initial habeas petitions. Id.
This being so, there can be no debate as to the district courts resolution of
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Luceros claims. We DENY the request for COA and DISMISS the appeal. 9
Entered by the Court:
Terrence L. OBrien
United States Circuit Judge
Lucero has moved for leave to proceed on appeal in forma pauperis. See 28
U.S.C. 1915(a)(1); FED. R. APP. P. 24(a)(5). The district court denied a similar motion.
See 1915(a)(3) (An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.). Because Lucero has not
demonstrated the existence of a reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal, DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991), we deny his renewed motion and order Lucero to pay all appellate filing
fees as directed by the Clerk of Court.
9
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