FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS March 20, 2013
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



RANDAL ANKENEY,

              Petitioner - Appellant,

       v.
                                                        No. 12-1422
SUSAN JONES, Warden of Fremont
                                                       (D. Colorado)
Correctional Facility; TOM
                                               (D.C. No. 1:12-CV-00808-LTB)
CLEMENTS, Director of the Colorado
Department of Corrections (CDOC);
JOHN SUTHERS, The Attorney
General of the State of Colorado,

              Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before HARTZ, EBEL, and MURPHY, Circuit Judges.


      Proceeding pro se, Randal Ankeney 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 Ankeney 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. 

2008, Ankeney pleaded guilty to one count of child abuse with a factual

basis of sexual assault on a child. The state of Colorado and Ankeney stipulated

to the imposition of an eight-year term of incarceration. Ankeney did not appeal

either his conviction or his sentence. He did, however, file a motion for post-

conviction relief pursuant to Colo. R. Crim. P. 35. The state trial court denied

Ankeney’s motion and the Colorado Court of Appeals affirmed the court’s order.

      Ankeney filed the instant § 2254 habeas petition on July 26, 2006. In his

petition, Ankeney raised four claims of error. In an order dated July 17, 2012, the

district court dismissed two of those claims, concluding they did not present

issues cognizable in a § 2254 proceeding. In a separate order, the court addressed

Ankeney’s remaining two claims, both of which were previously adjudicated by

the Colorado courts. The first of those claims was an assertion Ankeney’s due

process rights were violated because the state withheld exculpatory evidence prior

to the entry of his guilty plea. Cf. Brady v. Maryland, 

(1963)

(holding the government must disclose exculpatory evidence prior to trial).

Applying the controlling standard set out in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), the district court concluded Ankeney could not

demonstrate he was entitled to habeas relief on this claim because he failed to

identify any clearly established federal law extending the holding in Brady to an

alleged failure to disclose exculpatory information prior to the entry of a guilty

plea. See 28 U.S.C. § 2254(d)(1) (providing that clearly established federal law is

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determined by the United States Supreme Court); House v. Hatch, 

,

1015-18 (10th Cir. 2008) (“The absence of clearly established federal law is

dispositive under § 2254(d)(1).”).

      In his second claim, Ankeney asserted his sentence was imposed in

violation of Apprendi v. New Jersey, 

(2000). The Colorado state

court rejected this claim, finding Ankeney pleaded guilty to negligent child abuse

resulting in serious bodily injury to the child, a class 4 felony. Thus, he admitted

all the elements of a crime that carries a prison sentence of up to eight years. See

Colo. Rev. Stat. §§ 18-1.3-401(1)(a)(V)(A), (10)(a), (10)(b)(X). Ankeney was

sentenced to eight years’ imprisonment, a sentence within the presumptive range.

Again applying the standard set forth in the AEDPA, the federal district court

concluded the Colorado court’s adjudication of this claim was not contrary to, nor

an unreasonable application of clearly established federal law, and Ankeney failed

to rebut the presumption of correctness attached to the state court’s factual

findings. 28 U.S.C. § 2254(d).

      This court cannot grant Ankeney a COA unless he can 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, 

, 484 (2000) (quotations omitted). In evaluating whether

Ankeney has carried his burden, this court undertakes “a preliminary, though not

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definitive, consideration of the [legal] framework” applicable to each of his

claims. Miller-El v. Cockrell, 

, 338 (2003). Ankeney is not required

to demonstrate that his appeal will succeed to be entitled to a COA. He must,

however, “prove something more than the absence of frivolity or the existence of

mere good faith.” 

court has reviewed Ankeney’s application for a COA 1 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 Ankeney is

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

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

proceedings.

      Because Ankeney has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

Accordingly, this court denies Ankeney’s request for a COA and dismisses this

appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




      1
       Ankeney does not seek a COA on the two claims dismissed by the district
court on July 17, 2012.

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