F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           APR 5 2005
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


FRANK M. MUNIZ,

       Petitioner-Appellant,

v.                                                      No. 03-2306
                                                 (District of New Mexico)
DAVID TRUJILLO, Warden;                      (D.C. No. CIV-03-157-WPJ/WDS)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

       Respondents-Appellees.




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


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

certificate of appealability (“COA”). Muniz seeks a COA so that he can appeal

the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 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 Muniz 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 in New Mexico state court, Muniz was convicted of

kidnapping (firearm enhancement), aggravated assault on a peace officer with a

deadly weapon (firearm enhancement), attempted escape from a peace officer

(firearm enhancement), and attempted disarming of a peace officer (firearm

enhancement). After exhausting his state court remedies, Muniz filed the instant

28 U.S.C. § 2254 habeas petition. In his § 2254 petition, Muniz raised the

following three claims: (1) the prosecutor’s mention of Muniz’s incarceration

during his opening statement deprived Muniz of a fair trial; (2) allowing the

victim to testify at trial about his investigation of the incident deprived Muniz of

a fair trial; and (3) the trial court erred in admitting into evidence at trial

information that a gun found at the time of Muniz’s apprehension had been stolen.

In denying Muniz’s habeas petition, the district court concluded that Muniz’s first

and second claims were procedurally defaulted. Muniz had failed to raise

objections at trial to the prosecutor’s statement and the testimony of the victim

and, accordingly, the New Mexico Court of Appeals concluded on direct appeal

that the issues were waived. 1 Because Muniz had not offered a showing of cause


      1
       As noted by the district court, there is some limited discussion in the
opinion of the New Mexico Court of Appeals of the merits of these two claims.
That discussion, however, is strictly limited to a determination whether to

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and prejudice or a fundamental miscarriage of justice, the district court concluded

Muniz’s first two claims were procedurally barred. English v. Cody, 

, 1259 (10th Cir. 1998) (“On habeas review, this court does not address

issues that have been defaulted in state court on an independent and adequate

state procedural ground, unless the petitioner can demonstrate cause and prejudice

or a fundamental miscarriage of justice.”). As to Muniz’s third claim, the district

court concluded that in light of the weight of the evidence, the admission of

evidence that the weapon was stolen did not render Muniz’s trial fundamentally

unfair. Nichols v. Sullivan, 

, 1253 (10th Cir. 1989) (holding that

state-court evidentiary rulings will support habeas relief only where that ruling

rendered a petitioner’s trial fundamentally unfair).

      In his application for a COA, Muniz raises only the first and second claims

he presented to the district court. To be entitled to a COA, Muniz 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




disregard the waiver. As to both issues, the state court ultimately concluded that
Muniz had failed to adequately demonstrate “plain or fundamental error”
sufficient to overcome his waiver. In these circumstances, the district court
correctly concluded that the New Mexico Court of Appeals “clearly and
expressly” rested its rejection of Muniz’s claims on a state procedural bar. Harris
v. Reed, 

, 261-63 (1989) (holding that a procedural default will bar
federal habeas review of defaulted claims where the state court “clearly and
expressly” rests its decision on that procedural bar).

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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 Muniz has

satisfied his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. 

Although Muniz 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 Muniz’s application for a COA and

appellate filings, the district court’s order, and the entire record before this court

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes that Muniz is not entitled to a COA. The district court’s resolution of

Muniz’s § 2254 petition is not reasonably subject to debate and the issues he

seeks to raise on appeal are not adequate to deserve further proceedings.

Accordingly, this court DENIES Muniz’s request for a COA and DISMISSES

this appeal.

                                         Entered for the Court
                                         PATRICK FISHER, Clerk of Court


                                         By
                                                 Deputy Clerk

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