FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   November 27, 2007
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 WILLIAM M. LEE,

              Petitioner-Appellant,                      No. 07-1072
       v.                                                D. Colorado
 GARY WAKINS; THE ATTORNEY                   (D.C. No. 03-cv-00072-MSK-PAC)
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.


      This matter is before the court on William M. Lee’s pro se request for a

certificate of appealability (“COA”). Lee seeks a COA so he can appeal the

denial of his 28 U.S.C. § 2254 habeas corpus petition. 28 U.S.C. § 2253(c)(1)(A)

(providing that no appeal may be taken from a “final order in a habeas corpus

proceeding in which the detention complained of arises out of process issued by a

State court,” unless the petitioner first obtains a COA). Because Lee 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. 

      Following a jury trial, Lee was convicted in Colorado state court of first-

degree extreme-indifference murder, three counts of attempted first-degree
murder, second-degree assault, conspiracy to commit first-degree assault, and

conspiracy to commit menacing. As set out at length in both the magistrate

judge’s Report and Recommendation and the district court’s Order, the events

underlying Lee’s convictions arose out of a gun battle, initiated by Lee and his

brother Brian, between the “Gangsters of Love” and “Crips” street gangs. The

nine-year procedural history of this case in state court is both lengthy and

complex, including a trial, direct appeal, and two Colorado state actions for post-

conviction relief occurring over a nine-year period. Because that history is

thoroughly recounted and reviewed in both the Report and Recommendation and

the district court’s Order, it will not be repeated here. Suffice to say that after he

failed, for the most part, to obtain relief from the Colorado courts, both on direct

appeal and in the two post-conviction actions, Lee filed the instant § 2254 habeas

corpus petition raising the following claims for relief: (1) the trial court’s refusal

to grant a mistrial after the mid-trial disappearance of a prosecution witness

violated his Fifth Amendment right to due process and Sixth Amendment right to

confrontation; (2) the trial court’s refusal to read to the jury a note written to the

court by the missing witness violated his Fifth Amendment right to due process

and Sixth Amendment right to confrontation; (3) trial counsel rendered

constitutionally ineffective assistance in tendering a “flawed” theory-of-the-case

instruction; (4) he was denied his Fifth and Sixth Amendment rights when his

attorney failed to request that he be present for the charging conference; (5) the

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trial court’s erroneous complicity instruction rendered the trial fundamentally

unfair in violation of the Due Process Clause; (6) the jury’s inconsistent verdicts

on murder and conspiracy to commit murder violated his right to due process; and

(7) his convictions were not supported by sufficient evidence.

      In an exhaustive Report and Recommendation, the magistrate judge

recommended that Lee’s § 2254 petition be denied. The magistrate judge first

concluded Lee had failed to exhaust the following claims because he had not

properly raised them in his state court proceedings: (1) his claim relating to his

presence at the charging conference; (2) his claim relating to inconsistent jury

verdicts; and (3) all aspects of his sufficiency-of-the-evidence claims excepting

the claim his first-degree murder conviction was not supported by sufficient

evidence. The magistrate further concluded, however, that these claims were

subject to an anticipatory procedural bar because if raised in state court at this

late date the Colorado courts would hold the claims procedurally defaulted.

Coleman v. Thompson, 

, 735 n.1 (1991); People v. Rodriguez, 

, 253-54 & nn. 20, 22 (Colo. 1996). The magistrate judge then

recommended resolving the remainder of Lee’s claims on the merits on the basis

that the Colorado courts’ resolutions of the claims were not contrary to clearly

established Supreme Court precedent, based on an unreasonable application of

such precedent, or based on a clearly unreasonable finding of fact. 28 U.S.C. §




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2254(d). In an equally thorough and well-stated Order, the district court adopted

the Report and Recommendation and denied Lee’s § 2254 petition.

      To be entitled to a COA, Lee 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, 

, 336 (2003) (quotations

omitted). In evaluating whether Lee has satisfied his burden, this court

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

framework” applicable to each of his claims. 

Although Lee 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.”

a rigorous review of Lee’s application for a COA and

appellate filings, the district court’s Order, the magistrate judge’s Report and

Recommendation, and the entire record before this court pursuant to the

framework set out by the Supreme Court in Miller-El, this court concludes Lee is

not entitled to a COA. The district court’s thorough and well-stated resolution of

Lee’s § 2254 petition is not reasonably subject to debate and the issues Lee seeks

to raise on appeal are not adequate to deserve further proceedings. Accordingly,

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for those reasons set out in both the district court’s Order and the magistrate

judge’s Report and Recommendation, this court DENIES Lee’s request for a

COA and DISMISSES this appeal.

                                               ENTERED FOR THE COURT




                                               Elisabeth A. Shumaker, Clerk




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