Sherrod v. Bonner ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
December 11, 2014
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ADOLPH Q. SHERROD,
Petitioner - Appellant,
v. No. 14-1237
(D. Colo.)
WARDEN BONNER; THE (D.C. No. 1:14-CV-00127-LTB)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
This matter is before the court on Adolph Q. Sherrod’s pro se request for a
certificate of appealability (“COA”). Sherrod seeks a COA so he can appeal the
district court’s dismissal of his 28 U.S.C. § 2254 petition. See 28 U.S.C.
§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order
denying a § 2254 petition unless the petitioner first obtains a COA). Because
Sherrod has not “made a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal. We do, however, grant Sherrod’s motion for leave to
proceed on appeal in forma pauperis.
Following a jury trial in Colorado state court, Sherrod was convicted of
multiple counts of, among other things, physically and sexually assaulting his
girlfriend. Most, but not all, of the sentences imposed by the trial court were
ordered to run consecutively. After obtaining some relief on direct appeal, 1 but
no further relief in state post-conviction proceedings, Sherrod filed the instant
§ 2254 petition. Sherrod’s § 2254 petition raised the following three claims: (1)
the trial court abused its discretion in imposing consecutive sentences; (2) the
Double Jeopardy Clause requires the merger of his third degree sexual assault
conviction into his first degree assault conviction; and (3) the trial court should
have considered (a) amendatory Colorado legislation mitigating penalties for
certain crimes and (b) a heat-of-passion mitigator to arrive at more lenient
sentence as to his first degree assault conviction.
Because the record conclusively demonstrated Sherrod was not entitled to
habeas relief, the district court dismissed his § 2254 petition without holding a
hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes
the applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.”). The district court
concluded the first and third claims set out in Sherrod’s petition were state-law
1
The Colorado Court of Appeals determined Sherrod’s two convictions for
third degree sexual assault should merge and, then, remanded the matter to the
district court to resentence Sherrod.
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claims that did not raise federal constitutional issues. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States.”). The district court also
concluded all three claims set out in Sherrod’s petition were unexhausted and,
furthermore, were subject to either a procedural bar or anticipatory procedural
bar. Coleman v. Thompson, 501 U.S. 722, 735 n.1, 748 (1991).
The granting of a COA is a jurisdictional prerequisite to Sherrod’s appeal
from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Sherrod 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 “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, 537 U.S. at 336 (quotations
omitted). When a district court dismisses a § 2254 petition on procedural
grounds, a petitioner is entitled to a COA only if he shows both that reasonable
jurists would find it debatable whether he had stated a valid constitutional claim
and debatable whether the district court’s procedural ruling was correct. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating whether Sherrod has
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satisfied his burden, this court undertakes “a preliminary, though not definitive,
consideration of the [legal] framework” applicable to each of his claims. Miller-
El, 537 U.S. at 338. Although Sherrod 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.” Id.
Having undertaken a review of Sherrod’s appellate filings, the district
court’s order, and the entire record before this court pursuant to the framework
set out by the Supreme Court in Miller-El, we conclude Sherrod is not entitled to
a COA. In so ruling, this court has nothing to add to the district court’s thorough
analysis. Accordingly, this court DENIES Sherrod’s request for a COA and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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