F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAY 29 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

ELMER MARSH,

             Petitioner - Appellant,

v.                                                      No. 02-1442
                                                (D.C. No. 01-N-1487(CBS))
BRENT CROUSE; ATTORNEY                                 (D. Colorado)
GENERAL OF THE STATE OF
COLORADO,

             Respondents - Appellees.


                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, 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(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before the court on Elmer Marsh’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Marsh seeks a COA so that he can appeal the district court’s dismissal with

prejudice of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. §

2253(c)(1)(A) (providing that no appeal can be taken from a final order denying a

§ 2254 petition unless the petitioner first obtains a COA). We grant Marsh’s

request to proceed on appeal in forma pauperis. Because Marsh has not “made a

substantial showing of the denial of a constitutional right,” however, this court

denies his request for a COA and dismisses this appeal. 

      Marsh was convicted in Colorado state court of first degree sexual assault

and second degree kidnaping. He was sentenced to terms of imprisonment of

twenty-two years for sexual assault and twenty years for kidnaping; the sentences

were ordered to run consecutively. After exhausting his state court remedies,

Marsh filed the instant § 2254 petition raising the following two claims: (1) the

instruction given the jury on kidnaping omitted an essential element, thereby

causing a structural error in the proceedings; and (2) trial counsel’s failure to

object to the instruction and to provide a legally sufficient instruction constituted

ineffective assistance of counsel. Marsh’s petition was referred to a magistrate

judge for initial proceeding pursuant to 28 U.S.C. § 636(b)(1)(B). Applying the

deferential review standards set out in 28 U.S.C. § 2254(d), the magistrate judge


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concluded that the direct appeal decision of the Colorado Court of Appeals

(“CCA”) rejecting Marsh’s claims of error on the merits was not contrary to or an

unreasonable application of clearly established Supreme Court precedent. In

particular, the magistrate judge concluded the CCA properly relied on Neder v.

United States, 

, 8-15 (1999), to conclude that the omission of an

element from the jury instructions is subject to review for harmlessness and that

the omission of the asportation-substantially-increased-the-risk-of-harm element

was harmless in light of the uncontested evidence presented at trial. The

magistrate judge further determined the CCA properly concluded that Marsh’s

ineffective assistance of counsel claim failed for the same reason. Upon de novo

review, the district court adopted the magistrate judge’s report and

recommendation and dismissed Marsh’s § 2254 petition with prejudice.

      To be entitled to a COA, Marsh 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, 

, 1039 (2003) (quotations

omitted). In deciding whether Marsh has carried his burden, this court undertakes

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


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applicable to each of his claims. 

Although Marsh 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 review of Marsh’s application for a COA, the parties’

appellate briefs, the magistrate judge’s thorough report and recommendation, the

district court order, and the entire record on appeal pursuant to the framework set

out by the Supreme Court in Miller-El, this court concludes that Marsh is not

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

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

proceedings. Accordingly, this court DENIES his request for a COA and

DISMISSES this appeal.

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




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