FILED
                                                                      United States Court of Appeals
                                                                              Tenth Circuit

                                                                            January 23, 2008
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                               Clerk of Court
                                      TENTH CIRCUIT



 DERRICK DAVIES,

           Petitioner-Appellant,
 v.                                                                 No. 07-1320
 WARDEN ESTEP, Fremont Corr.                               (D.C. No. 07-cv-575-ZLW)
 Facility; ATTORNEY GENERAL OF                                   (D. Colorado)
 THE STATE OF COLORADO,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


       Derrick Davies, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2254 application for federal habeas relief. Because Davies has failed to satisfy the

standards for the issuance of a COA, we deny his request and dismiss the matter.

                                                 I.

       Davies, a former high school chemistry teacher, pleaded guilty in November 2005

in the El Paso County (Colorado) District Court to sexual assault on a child by one in a



       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
position of trust, and was sentenced to a term of imprisonment of three years to life.

Davies did not file a direct appeal. On March 22, 2007, Davies filed a pro se motion with

the state trial court entitled “Independent Motion Challenging Inpersom [sic] Jurisdiction

of Constitutional Requirements.” On its face, Davies’ motion listed the “United States of

America” as “Plaintiff” and himself as the “Defendant/©citizen.” In a series of rambling

and oftentimes incoherent allegations, Davies asserted in the motion that he was “a white

male Common Law [C]itizen of the Sovereign Colorado Republic” who “ha[d] never to

the best of his knowledge and belief, knowingly, intentionally, and voluntarily

surrendered his original status as a Common Law [C]itizen of the several states to become

a so-called 14th Amendment Federal [citizen] who [wa]s subject to the jurisdiction of the

‘United States.’” ROA, Vol. I, Doc. 2 at 41 (brackets in original). The state trial court

concluded that it lacked authority or jurisdiction to consider the relief requested by

Davies.

       On March 22, 2007, Davies, appearing pro se, filed the same “Independent

Motion” in federal district court. Pursuant to the directions of the district court, Davies

subsequently filed, on forms provided to him by the district court, an application for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. Davies’ application requested that his

state court “case [be] dismissed” and he “be released from prison immediately” based on

the allegations in his “Independent Motion.” 

at 9. On July 20, 2007, the

district court issued an order and judgment of dismissal. Although the district court noted

that Davies had not exhausted his state court remedies, it chose to deny the application on

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the merits pursuant to 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus

may be denied on the merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.”). More specifically, the district court noted

that “[f]or the most part, . . . Davies’ claims [we]re nonsensical” and that Davies had

“fail[ed] to assert a federal constitutional claim with respect to the state conviction that he

appear[ed] to be challenging.” 

at 2-3. The district court subsequently denied

Davies’ request for a COA.

       Davies has now renewed his request for COA with this court. Davies has also

filed a motion to proceed in forma pauperis on appeal.

                                              II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 

, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

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

order to make that showing, a prisoner 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.” Slack v. McDaniel, 

, 484 (2000) (internal quotation marks

omitted).

       For substantially the reasons stated in the district court’s order and judgment of

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dismissal, we conclude that Davies has failed to make the requisite showing for the

issuance of a COA. Accordingly, the motion for leave to proceed on appeal in forma

pauperis and the request for a COA are DENIED and the appeal is DISMISSED.


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Circuit Judge




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