Filed: Jan. 31, 2011
Latest Update: Feb. 21, 2020
Summary: FILED United States Court of Appeals Tenth Circuit January 31, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ADRIAN MESTAS, Petitioner - Appellant, v. No. 10-1458 ARISTEDES ZAVARAS, Executive (D. Colorado) Director of CDOC; KEVIN (D.C. No. 1:10-CV-01519-ZLW) MILYARD, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. Proceeding pro s
Summary: FILED United States Court of Appeals Tenth Circuit January 31, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT ADRIAN MESTAS, Petitioner - Appellant, v. No. 10-1458 ARISTEDES ZAVARAS, Executive (D. Colorado) Director of CDOC; KEVIN (D.C. No. 1:10-CV-01519-ZLW) MILYARD, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. ORDER DENYING CERTIFICATE OF APPEALABILITY Before MURPHY, GORSUCH, and HOLMES, Circuit Judges. Proceeding pro se..
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FILED
United States Court of Appeals
Tenth Circuit
January 31, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ADRIAN MESTAS,
Petitioner - Appellant,
v.
No. 10-1458
ARISTEDES ZAVARAS, Executive (D. Colorado)
Director of CDOC; KEVIN (D.C. No. 1:10-CV-01519-ZLW)
MILYARD, Warden; THE
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Proceeding pro se, Adrian Mestas 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 Mestas 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.
Id. § 2253(c)(2). Mestas’s request to proceed in
forma pauperis on appeal is granted.
In 2007, Mestas pleaded guilty to a Colorado state charge of first degree
assault with a deadly weapon. He was sentenced to thirty-two years’
imprisonment to be followed by five years of parole. Mestas did not appeal either
his conviction or his sentence. He did, however, file a motion for post-conviction
relief pursuant to Colo. R. Crim. P. 35(c), asserting the following three claims:
(1) the trial court erred by accepting his plea without first determining if there
was a factual basis for it; (2) the state criminal statute under which he was
convicted violates the equal protection clauses of both the federal and the
Colorado state constitutions; and (3) the sentence he received was
disproportionate to the crime he committed. In an order dated November 27,
2007, the state district court denied Mestas’s motion. Mestas did not appeal that
ruling.
In February 2008, Mestas filed a second motion for post-conviction relief.
When this motion was also denied, Mestas sought to appeal both orders. The
Colorado Court of Appeals concluded the appeal from the 2007 order was
untimely. The Court of Appeals refused to consider the appeal from the 2008
order, concluding the second post-conviction motion was successive. See Colo.
R. Crim. P. 35(c)(3)(VI).
Mestas filed the instant § 2254 habeas petition on June 28, 2010. In his
petition, Mestas raised the same three claims of error previously presented to the
Colorado state courts. The federal district court concluded Mestas’s claims were
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all procedurally defaulted in Colorado state court and determined the state
procedural bar was independent and adequate. The district court concluded it was
procedurally barred from considering Mestas’s claims because he failed to show
cause for the default and actual prejudice or that the failure to review his claims
would result in a fundamental miscarriage of justice. See Coleman v. Thompson,
501 U.S. 722, 750 (1991).
This court cannot grant Mestas a COA unless he can 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,
529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether
Mestas has carried his burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El v. Cockrell,
537 U.S. 322, 338 (2003). Mestas is not required
to demonstrate that his appeal will succeed to be entitled to a COA. He must,
however, “prove something more than the absence of frivolity or the existence of
mere good faith.”
Id. (quotations omitted).
This court has reviewed Mestas’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 Mestas is not
entitled to a COA. The district court’s resolution of Mestas’s claims is not
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reasonably subject to debate and the claims are not adequate to deserve further
proceedings.
Because Mestas 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).
Accordingly, this court denies Mestas’s request for a COA and dismisses this
appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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