FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 7, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



PHONG LE,

               Petitioner - Appellant,

          v.                                             No. 08-1362
                                                        (D. Colorado)
TRAVIS TRANI, * Warden, L.C.F.;               (D.C. No. 01:07-CV-01173-WYD)
THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,

               Respondents - Appellees.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Appellant, Phong Le, seeks a certificate of appealability (“COA”) from this

court so he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas

petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from

a final order disposing of a § 2254 petition unless the petitioner first obtains a

COA). Because Le 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. 

Le’s motion to proceed in forma pauperis is granted.


      *
       Pursuant to Fed. R. App. P. 43(c)(2), Travis Trani is substituted for Steven
Hartley as Warden of the Limon Correctional Facility, effective September 2008.
      Le was convicted by a Colorado jury of multiple charges arising from the

burglary of a residence occupied by his sister-in-law. He was acquitted of

aggravated robbery, first degree murder, felony murder, and solicitation of felony

murder. In his direct appeal, Le raised several challenges to his sentence. The

Colorado Court of Appeals granted relief on only one claim, holding the trial

court erred by imposing consecutive sentences on Le’s solicitation and conspiracy

convictions. Le then filed a motion seeking state post-conviction relief pursuant

to Rule 35(c) of the Colorado Rules of Criminal Procedure. The state district

court denied relief and the Colorado Court of Appeals affirmed.

      Le filed the instant § 2254 federal habeas petition on June 5, 2007. In the

petition, Le raised three allegations of error: (1) his Sixth and Fourteenth

Amendment rights were violated because his aggravated-range sentences were

based on facts not found by the jury and for which he was actually acquitted, (2)

there was insufficient evidence to support his convictions for solicitation and

conspiracy to commit aggravated robbery, and (3) his trial counsel was ineffective

for failing to request a jury instruction on abandonment with respect to the

charges of solicitation and conspiracy to commit aggravated robbery. Applying

the standards set forth in the Antiterrorism and Effective Death Penalty Act to

settled precedent, the district court concluded the state courts’ adjudication of

Le’s claims was not contrary to, nor an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d).

                                          -2-
      To be entitled to a COA, Le 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 Le has satisfied his burden, this court undertakes

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

applicable to each of his claims. 

Although Le 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.” 

      This court has reviewed Le’s application for a COA and appellate brief, the

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

set out by the Supreme Court in Miller-El and concludes that Le is not entitled to

a COA. The district court’s resolution of Le’s claims is not reasonably subject to

debate and the claims are not adequate to deserve further proceedings.




                                          -3-
      Because Le has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This

court denies Le’s request for a COA and dismisses this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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