Hoeck v. Timme , 594 F. App'x 561 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 2, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID B. HOECK,
Petitioner - Appellant,
v. No. 14-1229
(D.C. No. 1:13-CV-02575-WJM)
RAE TIMME, Warden; THE (D. Colorado)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.
This matter is before the court on David Hoeck’s pro se requests for a
certificate of appealability (“COA”) and for permission to proceed on appeal in
forma pauperis. Hoeck seeks a COA so he can appeal the district court’s denial
of his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no
appeal may be taken from a final order denying a § 2254 petition unless the
petitioner first obtains a COA). Because Hoeck 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. Nevertheless, we grant
his motion for leave to proceed on appeal in forma pauperis.
Following a jury trial in Colorado state court, Hoeck was convicted of
possession of cocaine with intent to distribute. The trial court sentenced Hoeck to
an eighteen-year term of imprisonment. After exhausting his state court remedies
without obtaining any relief, Hoeck filed the instant § 2254 habeas petition
raising eighteen claims, one of which contained multiple subclaims. In two
exceedingly comprehensive orders, the district court concluded the claims set out
in Hoeck’s habeas petition either failed to present federal issues, were
procedurally barred, or were without merit.
The granting of a COA is a jurisdictional prerequisite to Hoeck’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, he must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, Hoeck 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 claim 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 Hoeck has satisfied his burden,
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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 Hoeck 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. (quotations omitted).
Having undertaken a review of Hoeck’s appellate filings, the district
court’s orders, and the entire record before this court pursuant to the framework
set out by the Supreme Court in Miller-El, we conclude Hoeck is not entitled to a
COA. In so ruling, this court has nothing to add to the district court’s thorough
analysis, as set out in its orders dated February 3, 2014, and April 21, 2014.
Accordingly, this court DENIES Hoeck’s request for a COA and DISMISSES
this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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