WILLIAM J. MARTÍNEZ, District Judge.
This matter is before the Court on Applicant Daniel Stuart's Second Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (Docket No. 12). Respondents answered the Application (Docket No. 26) and Applicant filed a traverse (Docket No. 27). As Applicant is proceeding pro se, I must construe his pleadings liberally and hold him to a "less stringent standard." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Traverse, and the state court record (Docket No. 35), I conclude that the Application should be denied.
Applicant was convicted by a jury of one count of aggravated robbery, one count of accessory to aggravated robbery, four counts of menacing, one count of accessory to menacing, one count of vehicular eluding, one crime of violence count, and one count of possession of not more than one ounce of marijuana in Case No. 03CR2556 in the Jefferson County District Court of Colorado. Pre-Answer Resp. at Ex. 2, p. 6. The Colorado Court of Appeals summarized the facts in Applicant's case as follows:
People v. Daniel Stuart, No. 06CA0841 (Colo. App. May 7, 2009) (unpublished opinion).
Following the jury trial, Applicant was sentenced to a total of thirty-two years in prison. Id. Applicant filed a direct appeal to the Colorado Court of Appeals, and the appellate court affirmed his convictions and sentence on May 7, 2009. Pre-Answer Resp. at Ex. 3. The Colorado Supreme Court denied certiorari review on October 13, 2009. Id. at Ex. 4.
On March 11, 2010, Applicant filed a post-conviction motion pursuant to Colorado Rule of Criminal Procedure 35(c) in which he alleged that he received ineffective assistance of trial counsel. Pre-Answer Resp. at 4. The trial court summarily denied the Rule 35(c) motion, and Applicant filed an appeal to the Colorado Court of Appeals. Id. The Colorado Court of Appeals affirmed the trial court on September 22, 2011. See People v. Stuart, No. 10CA0862, 2011 WL 4398038 at *1 (Colo. App. Sept. 22, 2011) (unpublished opinion). The mandate issued on November 17, 2011.
Applicant initiated the instant action in this Court on October 15, 2010. He filed an Amended Application on November 3, 2010, and a Second Amended Application on December 2, 2010.
In the Second Amended Application, Applicant asserted the following claims:
On December 15, 2010, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file a Pre-Answer Response and address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses. Respondents filed a Pre-Answer Response on December 23, 2010. Applicant filed a Reply on January 14, 2011.
On January 31, 2011, Magistrate Judge Boland entered an order finding that the Second Amended Application was a mixed petition, and subject to dismissal pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982), because Applicant had failed to exhaust all of his claims before seeking relief in federal court. Therefore, Magistrate Judge Boland ordered Applicant to show cause why the Second Amended Application should not be denied as a mixed petition. Magistrate Judge Boland informed Applicant that he may elect to dismiss any unexhausted claims and pursue only those claims for which state remedies already have been exhausted, or that he could dismiss the entire action without prejudice in order to exhaust state court remedies.
Applicant filed a response to the Order to Show Cause on February 22, 2011, asserting that he wished to dismiss his unexhausted claims and proceed only with his exhausted claims. Therefore, on March 17, 2011, the Court entered an order that dismissed Claims Five and Six as unexhausted, and directed Respondents to file an Answer that fully addressed the merits of Claims One through Four. The Court also entered an order directing Respondents to file a complete copy of Applicant's state court proceedings.
On March 21, 2011, Respondents filed a Notice with the Court explaining that the state court record in Applicant's case was not currently available because of a post-conviction appeal that was pending in the Colorado Court of Appeals. Respondents filed an Answer on March 28, 2011. Applicant filed a Traverse on April 18, 2011.
On January 12, 2012, the Court entered an order directing Respondents to file a report within thirty days and provide an update on the status of Applicant's post-conviction appeal. Respondents filed a status report on January 12, 2012, indicating that Applicant's post-conviction appeal had concluded. Therefore, on February 16, 2012, the Court entered a second order directing Respondents to provide a complete copy of Applicant's state court proceedings. The state court record was filed on March 29, 2012.
In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. See Estelle v. Mcguire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). "When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the Applicant is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the Applicant's custody simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991) (internal quotations and citations omitted). The exhaustion of state remedies requirement in federal habeas cases dictates that a state prisoner must "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Accordingly, based on denial of certiorari review by the Colorado Supreme Court in Applicant's case, habeas review in this Court is concerned with the proceeding in the Colorado Court of Appeals which was the final substantive proceeding in the state appellate review process.
Because the Application was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), that statute governs the Court's review. Cannon v. Mullin, 383 F.3d 1152, 1158 (10th Cir. 2004) (citing Rogers v. Gibson, 173 F.3d 1278, 1282 n. 1 (10th Cir.1999)). Under AEDPA, a district court may only consider a habeas petition when the Applicant argues that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The grounds for granting a writ of habeas corpus are very limited: "a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(1)-(2); see also Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000) (citation omitted).
A state court decision is "contrary to" clearly established Federal law if it "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a different result from [Supreme Court] precedent.'" Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A state court decision involves an "unreasonable application" of clearly established Federal law when "`the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the Applicant's case.'" Lockyer v. Andrade, 538 U.S. 63, 75 (2005) (quoting Williams, 529 U.S. at 413). "The `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous . . . . The state court's application of clearly established law must be objectively unreasonable." Id. (citing Williams, 529 U.S. at 409-10, 412). A "`federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.'" Id. (quoting Williams, 529 U.S. at 411). Finally, when analyzing a petition, all determinations of factual issues by the state court are presumed to be correct and the Applicant has the "burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). "[W]hether a state court's decision was unreasonable must be assessed in light of the record [that court] had before it." Holland v. Jackson, 542 U.S. 649, 651-52 (2004) (per curiam) (citations omitted).
Claims One through Four are the claims remaining at issue in this action.
First, Applicant claims that the trial court violated his constitutional rights by preventing him from presenting evidence to demonstrate that Applicant's co-defendant told the prosecution's investigator that Applicant was not involved with the crime. Second Amended Application at 9. In addressing this claim, the Colorado Court of Appeals determined the following:
People v. Daniel Stuart, 06CA841 at 3-5.
Although Applicant challenges the state court's exclusion of hearsay evidence, a federal habeas court generally does not review a state court's evidentiary rulings, see, e.g., Estelle, 502 U.S. at 67-68, because its review is concerned only with whether Applicant has presented a violation of "the Constitution, laws, or treaties of the United States." Id. at 68. State evidentiary determinations normally do not present federal constitutional issues. See Crane v. Kentucky, 476 U.S. 683, 689 (1986) (noting the Court's "traditional reluctance to impose constitutional constraints on ordinary evidentiary rulings by state trial courts"). But "if the alleged error was so grossly prejudicial that it fatally infected the trial and denied the fundamental fairness that is the essence of due process," habeas relief is available. Bullock v. Carver, 297 F.3d 1036, 1055 (10th Cir. 2002) (quotations and brackets omitted); see also Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (observing that "the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense" (quotations omitted)). Further, although state and federal rules of evidence are helpful in determining whether a defendant's constitutional rights were violated, on habeas corpus review the Court need not address the state or federal rules of evidence, see Hopkinson v. Shillinger, 866 F.2d 1185, 1200 (10th Cir. 1989), because the Court's inquiry is limited to whether the state court's hearsay determination deprived the defendant of his constitutional rights to due process and to compel favorable testimony. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
During Applicant's trial, an investigator for the prosecution testified on direct examination that Applicant drew a diagram of the Red Lobster crime scene during his preliminary hearing testimony. See State Court Record, 12-12-05, p. 213. On cross-examination, Applicant's attorney requested permission from the court to ask the investigator about other testimony she had given during the preliminary hearing. See State Court Record, 12-13-05, p. 23. Specifically, Applicant's attorney wanted to asked the investigator about her testimony regarding Applicant's co-defendant, Carlos Ardon-Reyes. Id. at 24. The following exchange occurred:
Id. at 24-25.
Applicant's counsel argued that the prosecution opened the door to the testimony because "they have asked [the investigator] if she testified at a prior hearing and if she remembered testifying at a prior hearing." Trial Court Record, 12-13-05, p. 23-24. However, on direct exam, the investigator did not testify regarding any statements made to her by Mr. Ardon-Reyes. See Trial Court Record, 12-12-05, p. 201-214, 219, 224-25; 12-13-05, p. 12-15. Instead, her testimony was limited to her investigation of the scene of the crime, electronic and video evidence that she collected, and the fact that during the preliminary hearing, she saw Applicant draw a diagram of "where he said he was located" during the robbery. See id. Because the investigator did not testify regarding alleged statements made by Mr. Ardon-Reyes, it is not clear how her testimony could have "opened the door" to cross-examination on these statements.
In addition, because Mr. Ardon-Reyes was available to testify at Applicant's trial regarding any exculpatory statements he made during the preliminary hearing, the exclusion of the hearsay evidence was not fundamentally unfair. This is because "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). In addition, through evidence elicited on cross-examination and discussed during closing arguments, Applicant was able to present his theory of defense that he was not involved with the robbery, and that he acted under duress from Mr. Ardon-Reyes. See, e.g., Trial Court Transcript, 12-15-05, p. 68-83.
After reviewing the record, the Court finds that the appellate court applied the appropriate factors and did not reach an unreasonable conclusion. Accordingly, the Court finds that the Colorado Court of Appeals' determination that the trial court did not improperly exclude this evidence is not an unreasonable application of Supreme Court precedent, nor an unreasonable determination in light of the facts presented. Applicant is not entitled to habeas relief on this claim.
Second, Applicant asserts that the trial court failed to adequately respond to the jury's request for clarification regarding the distinction between complicity and accessory to crime. He argues that the trial court erred by simply referring the jury to the instructions, and that "[t]he court's erroneous instruction, read in conjunction with other instructions, does not adequately inform the jury of the applicable law." Second Amended Application at 29.
In addressing this claim, the Colorado Court of Appeals concluded the following:
People v. Daniel Stuart, 06CA841 at 6-11.
As a preliminary matter, Respondents assert that Applicant's second claim is procedurally barred. They argue that the Colorado Court of Appeals dismissed this claim on the basis of the invited error doctrine, which Respondents conclude is a firmly established and regularly followed state procedural rule.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534.
If "the court to which the petitioner would be required to present his claim in order to meet the exhaustion requirement would now find the claims procedurally barred," then the petitioner is considered to have procedurally defaulted his claims and federal habeas review is precluded. Id. at 755 n. 1. Indeed, a federal district court "does not address issues that have been defaulted in state court on an independent and adequate procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice." English v. Cody, 146 F.3d 1257, 1259 (10th Cir. 1998) (citations omitted). Application of this procedural default rule in the habeas corpus context is based on comity and federalism concerns. See Coleman, 501 U.S. at 730.
However, it is not clearly established in the Tenth Circuit that application of the invited error doctrine in the state courts provides a basis for a finding of procedural default in a habeas corpus action. See Sims v. Watkins, 205 Fed. Appx. 700, 702 (10th Cir. Nov. 14, 2006) (unpublished opinion) (holding that district court's determination that it was barred from reviewing a claim dismissed in the state court's on the basis of invited error was "debatable"), see also Tiger v. Workman, 445 F.3d 1265, 1267-68 (10th Cir. 2006) (treating state court's determination that "invited error" doctrine prevented relief as to erroneous jury instructions as adjudication on the merits, not as procedural bar). Therefore, the Court declines to dismiss this claim as procedurally defaulted and will proceed to the merits.
In the federal habeas context, "not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation." Middleton v. McNeil, 541 U.S. 433, 437 (2004). As such, "[a] § 2254 petitioner has a heavy burden in attempting to set aside a state conviction based on an erroneous jury instruction." Nguyen v. Reynolds, 131 F.3d 1340, 1357 (10th Cir. 1997). "[A]s a general rule, errors in jury instructions in a state criminal trial are not reviewable in federal habeas corpus proceedings, unless they are so fundamentally unfair as to deprive petitioner of a fair trial and . . . due process of law." Patton v. Mullin, 425 F.3d 788, 807 (10th Cir. 2005) (quotation omitted); see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (holding that in considering a habeas claim based on an improper jury instruction, the court must ask "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable [or] erroneous") (quotations omitted)). The improper instruction "may not be judged in artificial isolation," id. (quotation omitted), but must be considered "in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72.
In this case, the jury submitted a question to the trial court regarding when complicitor liability changes to accessory liability. The trial court referred the jury back to the jury instructions, which adequately answer this question. The instruction for complicity, Jury Instruction No. 22, required the prosecution to prove beyond a reasonable doubt that: (1) a crime was committed, (2) another person committed all or part of the crime, (3) Applicant had knowledge that the other person intended to commit all or part of the crime, (4) Applicant had the intent to promote or facilitate the commission of the crime, and (5) Applicant aided, abetted, advised, or encouraged the other person in the commission or planning of the crime. See Trial Court Record, Vol. 1 at 183. The instructions for accessory, Jury Instruction Nos. 24-28, required the prosecution to prove beyond a reasonable doubt that: (1) the Applicant rendered assistance to another person, (2) with intent to hinder, delay or prevent, (3) the discovery, detention, apprehension, prosecution, conviction or punishment of such person, (4) for the commission of the crime at issue, (5) knowing the person being assisted committed the crime at issue. Id. at 185-89. These jury instructions accurately state the law regarding complicity and accessory crimes in the State of Colorado at the time of Applicant's conviction. See Colo. Rev. Stat. § 18-1-603 (2008); Colo. Rev. Stat. § 18-8-105 (2008); see also People v. Broom, 797 P.2d 754, 755 (Colo. App. 1990).
The jury instructions adequately set forth the distinction between complicity and accessory, which is that a person is guilty of complicity if he helped prepare for or carry out a crime, and a person is guilty of an accessory crime if he helped another person escape justice for a crime he has committed. See id. Therefore, the trial court's response which referred the jury to the instructions for complicity and accessory was not improper. Further, the final paragraph of the trial court's response, which discussed the old concepts of accessory, before, during, and after the fact, correctly reinforced the distinction between complicity and accessory crimes. Id.
Having carefully reviewed the record, the jury instructions, and the trial court's response to the jury's question, the Court agrees that when taken as a whole, the effect of the jury instructions was to require the prosecution to prove all of the elements of complicity and accessory beyond a reasonable doubt. See Trial Court Record, Vol. 1 at 159-91. The jury instructions in this case do not meet the standard of being "so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law." Nguyen, 131 F.3d at 1347. Therefore, the Court find that the decision of the Colorado Court of Appeals was not contrary to or an unreasonable application of clearly established federal law, nor was it an unreasonable determination of the facts presented in the state court proceeding. Accordingly, Applicant is not entitled to relief on this claim.
Third, Applicant asserts that his convictions for felony menacing and aggravated robbery violate double jeopardy because felony menacing is a lesser included offense of aggravated robbery.
The Colorado Court of Appeal rejected Applicant's argument that the elements of the crimes with which he was charged were the same, holding that the crimes of felony menacing and aggravated robbery contain different elements, and therefore, do not violate the principles of double jeopardy. People v. Daniel Stuart, 06CA841 at 11-13.
The test for whether a defendant has been charged twice for commission of the same crime was set forth in Blockburger v. United States, 284 U.S. 299 (1932). In Blockburger, the Supreme Court stated that "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Id. at 304. Further, "[i]n a habeas corpus proceeding under section 2254, a federal court should defer to a state court's interpretation of state law in determining whether an incident constitutes one or more than one offense for double jeopardy purposes." Mansfield v. Champion, 992 F.2d 1098, 1100 (10th Cir. 1993).
In Colorado, a person commits aggravated robbery if, during the act of robbery or immediate flight therefrom and by use of force, threats, or intimidation with a deadly weapon, he knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury. See Colo. Rev. Stat. § 18-4-302(1)(b) (2008). Felony menacing is committed when, by any threat or physical action, and with the use of a deadly weapon, a person knowingly placed or attempts to place another person in fear of imminent serious bodily injury. See Colo. Rev. Stat. § 18-3-206(1)(a) (2008). As the appellate court concluded, felony menacing is not a lesser included offense of aggravated robbery because "[t]he requirement in the felony menacing statute that the actor knowingly places a victim in fear of `serious bodily injury' is distinguishable from the requirement that the robbery knowingly places a victim in fear of `bodily injury.'" People v. Daniel Stuart, 06CA841 at 13 (quoting People v. Sisneros, 606 P.2d 1317, 1318 (Colo. App. 1980)); see also Kreiser v. People, 604 P.2d 27 (1979) (distinguishing fear of "serious bodily injury" from fear of "bodily injury").
After review of the relevant Colorado statutes, the Court find it clear that the crimes of aggravated robbery and felony menacing require different proof and are separate and distinct crimes. Therefore, the Court finds that the state court's determination that the crimes at issue contain different elements did not result in a decision that was contrary to, or involved an unreasonable application of, Blockburger. Applicant is not entitled to habeas relief on this claim.
Finally, Applicant asserts that there is insufficient evidence to support his convictions for menacing. He argues that the prosecution failed to present any evidence from which a reasonable fact-finder could conclude beyond a reasonable doubt that Applicant knew that Mr. Ardon-Reyes intended to menace the Red Lobster employees, and that he intended to promote or facilitate the commission of the crime of menacing. Second Amended Application at 36-37.
In addressing this claim, the appellate court concluded:
People v. Daniel Stuart, 06CA841 at 13-18.
Applicant's constitutional challenge to the sufficiency of the evidence is governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction as a matter of due process if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original). The Court looks at both direct and circumstantial evidence in determining the sufficiency of the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). The Court "may not weigh conflicting evidence nor consider the credibility of witnesses," but must "`accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). In applying Jackson, the Court looks to state law to determine the substantive elements of the offense. See Jackson, 443 U.S. at 324 n. 16; Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004). Finally, in examining these types of challenges, a federal court owes a state court's decision "deference squared." Young v. Sirmons, 486 F.3d 655, 666 n.3 (10th Cir. 2007) (citing Torres v. Lytle, 461 F.3d 1303 (10th Cir. 2006)); see also United States v. Dedman, 527 F.3d 577, 592 (6th Cir. 2008) (holding that a defendant bears "a very heavy burden" in making a sufficiency of the evidence claim).
Upon review of the record, the Court finds Applicant has failed to demonstrate that the Colorado Court of Appeals' determination of this claim was contrary to, or an unreasonable application of, Jackson v. Virginia. The Court finds that, under Colo. Rev. Stat. § 18-3-206(1)(a) (2008), felony menacing is committed when, by any threat or physical action, and with the use of a deadly weapon, a person knowingly placed or attempts to place another person in fear of imminent serious bodily injury. Complicity, on the other hand, is not a separate and distinct crime or offense. See Grissom v. People, 115 P.3d 1280, 1283 (Colo. 2005). Instead, it is "a theory by which a defendant becomes accountable for a criminal offense committed by another." Id. (quoting People v. Thompson, 655 P.2d 416, 418 (Colo. 1982)). Colorado's complicity statute provides:
Colo. Rev. Stat. § 18-1-603 (2008).
As identified by the Colorado Court of Appeals, the prosecution presented evidence that (1) Applicant knew Mr. Ardon-Reyes was armed with a gun and intended to use that gun to commit an armed robbery inside the restaurant and (2) Applicant intended to assist Mr. Ardon-Reyes in the commission of that crime, by serving as the driver of his get-away car. Under existing Colorado precedent, this Court cannot say that the evidence against Applicant, when taken in the light most favorable to the State, supports any reasonable doubt with respect to the menacing charges. See Jackson, 443 U.S. at 319. Accordingly, the Colorado Court of Appeals' conclusion that there was substantial evidence to support the verdict against Applicant was a correct application of the law to the facts, and Applicant is not entitled to relief on this claim.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is ordered:
1. Applicant Daniel Stuart's Second Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 12) is denied.
2. No certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right.
3. Leave to proceed in forma pauperis on appeal is denied.
4. This case is dismissed with prejudice.
