F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          August 11, 2005

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                                Clerk



 JOHNNY RODRIQUEZ,

          Petitioner-Appellant,

 v.
                                                         No. 04-2161
                                               (D.C. No. CIV-03-1347 RB DJS)
 PATRICK SNEDEKER, Warden, Lea
                                                       (New Mexico)
 County Correctional Facility;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.




                                     ORDER *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Johnny Rodriguez applies pro se for a certificate of appealability (COA) of

the district court’s denial of his petition for a writ of habeas corpus under 28

U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. § 2253(c)(1), we see no

basis for an appeal, deny a COA, and dismiss the appeal.



      After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 

,

335-36 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” 

. “The COA determination under

§ 2253(c) requires an overview of the claims in the habeas petition and a general

assessment of their merits.” 

“This threshold inquiry does not require

full consideration of the factual or legal bases adduced in support of the claims.

In fact, the statute forbids it.” 

Rodriguez is not required to prove

the merits of his case in his application for a COA, he must demonstrate

“something more than the absence of frivolity or the existence of mere good

faith” on his part. 

(internal quotations and citation omitted).

      Mr. Rodriguez pled guilty to two counts of possession of a controlled

substance in New Mexico state court and was convicted by a jury of trafficking

the controlled substance of heroin. He also admitted to previously being

convicted of four felony crimes. He was classified as an habitual offender and

sentenced to nineteen years imprisonment. His conviction was affirmed on direct

appeal. He then petitioned the federal district court for post-conviction relief,


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raising 1) insufficiency of evidence to support his conviction for trafficking

heroin, 2) improper admission of statements that he trafficked heroin, and 3)

erroneous admission at trial of evidence of three prior felony convictions. The

magistrate judge proposed findings and recommended that the petition be

dismissed. Mr. Rodriguez filed objections, but the district court adopted the

magistrate judge’s recommendation and dismissed the petition.

      Mr. Rodriguez contends the state failed to produce sufficient evidence that

he trafficked heroin. The New Mexico Court of Appeals upheld the conviction

because there was testimony from an undercover officer that he sold heroin to Mr.

Rodriguez. Reviewing the record, the court of appeals found that all the

substantive elements of the crime of trafficking were proven at trial beyond a

reasonable doubt. See Jackson v. Virginia, 

, 319 (1979) (relevant

question is whether, viewing evidence in light most favorable to prosecution, any

rational trier of fact could find all essential elements proved beyond a reasonable

doubt). The magistrate judge correctly concluded that the state court’s decision

was proper under federal law, and that the conviction was based on sufficient

evidence. In a related contention, Mr. Rodriguez asserts the trial court erred in

permitting into evidence statements that he trafficked heroin when he in fact was

merely a user, and that the state “use[d] statements of so called officials to

fabricate evidence.” Because he provided no further information in support of


                                         -3-
his allegation, the magistrate judge found that his argument was conclusory and

insufficient to support his claim, a conclusion with which we agree.

      Mr. Rodriguez also contends the trial court erred in admitting evidence of

three prior felony convictions, for drug possession, trafficking, and racketeering,

and as a result the jury was tainted against him in violation of due process and

equal protection. Mr. Rodriguez testified at trial. The trial court permitted the

admission of his prior convictions but not the nature of the convictions. It

instructed the jury that the convictions should only be considered for the limited

issue of his credibility. The court of appeals held the trial court had properly

weighed the probity of the evidence versus its prejudicial value as it was required

to do under state law. It agreed that the prior convictions were relevant to Mr.

Rodriguez’s credibility, which was a central issue in the case.

      Noting that federal courts have “long permitted the government to impeach

the testimony of a criminal defendant who takes the witness stand in the same

manner as any other witness, including reference to prior convictions,” United

States v. Haslip, 

, 654 (10th Cir. 1998), the magistrate judge

concluded the state court’s decision was not contrary to established federal law.

Because we are reviewing a state court evidentiary ruling, we may not grant

habeas relief unless the ruling renders “the trial so fundamentally unfair as to

constitute a denial of federal constitutional rights.” Cummings v. Evans, 161 F.3d


                                         -4-
610, 618 (10th Cir. 1998) (internal quotation omitted). “[W]e will not disturb a

state court's admission of evidence of prior crimes, wrongs or acts unless the

probative value of such evidence is so greatly outweighed by the prejudice

flowing from its admission that the admission denies defendant due process of

law.” Hopkinson v. Shillinger, 

, 1197 (10th Cir. 1989), overruled

on other grounds by Sawyer v. Smith, 

(1990). In light of the

importance of Mr. Rodriguez’s credibility and the state court’s limitations

regarding the nature of the prior convictions and the narrow purpose for which

they could be considered, we are satisfied that the ruling on balance was not

contrary to federal constitutional law.

      Mr. Rodriguez also contends his Fourth and Fifth Amendment rights were

violated because the investigation in his case “starte[d] through another person”

and the officers should have obtained permission to investigate him instead. He

raised these issues in his response to the state’s motion to dismiss this petition

below, and in his objections to the magistrate judge’s findings and

recommendation, but they were not addressed by the magistrate judge or the

district court. He also maintains the district court failed to consider his addiction

to heroin. These allegations are conclusory and unsupported, and we are thus

unable to consider them. See Hall v. Bellmon, 

, 1113-14 (10th Cir.




                                          -5-
1991). 1

       We have carefully reviewed the record of these proceedings, the magistrate

judge’s proposed finding and recommendation, and the order of the district court.

We conclude that reasonable jurists would not debate the district court’s

resolution of the constitutional claims presented. We therefore DENY Mr.

Rodriguez’s request for a certificate of appealability, and DISMISS the appeal.

                                ENTERED FOR THE COURT

                                Stephanie K. Seymour
                                Circuit Judge




       Mr. Rodriguez also raises the new argument that he was unlawfully
       1

searched and arrested. We will not consider on appeal issues not raised or
addressed below. See Walker v. Mather, 

, 896 (10th Cir. 1992).
Moreover, Mr. Rodriguez provides no facts which would support these claims.

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