Vick v. Addison ( 2006 )

F IL E D
United States Court of Appeals
Tenth Circuit
U N IT E D ST A T E S C O U R T O F A PP E A L S
October 10, 2006
T E N T H C IR C U IT
Elisabeth A. Shumaker
Clerk of Court
TR IM A IN E LA M O N T V IC K ,
Petitioner - A ppellant ,
v. No. 05-6362
( W .D. Oklahoma )
M ICHAEL K. ADDISO N, W arden , (D.Ct. No. CIV-05-0238-HE )
Respondent - Appellee .
O R D E R D E N Y IN G C E R T IF IC A T E O F A PP E A L A B IL IT Y
A N D D ISM ISSIN G A PPL IC A T IO N
Before H E N R Y , B R ISC O E , and O ’B R IE N , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Trimaine Lamont Vick, a state prisoner proceeding pro se, 1 filed a petition
for writ of habeas corpus under 28 U.S.C. § 2254. The petition was referred to a
magistrate judge who recommended it be denied. The district court adopted the
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
magistrate’s report and recommendation, and denied the petition. The district
court also denied a certificate of appealability (COA), finding Vick had not made
“a substantial showing of the denial of a constitutional right” under 28 U.S.C. §
2253(c)(2). (R. Doc. 29.) Vick sought leave to appeal in form a pauperis, which
application was granted. Vick has applied for a COA from this Court, seeking
reversal of the district court’s order, and a remand for an evidentiary hearing.
Background
The parties are familiar with the facts of this case, and we need not repeat
them here. Vick was convicted of felony murder, conspiracy to commit a felony,
two counts of robbery with a firearm, two counts of assault with a dangerous
weapon, and pointing a firearm at another. The Oklahoma Court of Criminal
Appeals reversed one conviction of robbery with a firearm on double jeopardy
grounds. Vick v. State, No. F-2003-244 (Okla. Crim. App. M ar. 31, 2004). In his
petition to the district court, Vick raised the same issues argued in his direct
appeal, except for the double jeopardy ground on which he prevailed.
The magistrate judge issued a twenty-four page report, in which he
exhaustively reviewed each of Vick’s claims and its resolution by the state court.
He concluded Vick was not entitled to relief on any of the grounds raised, and
recommended denial of the petition. The district court considered de novo the
grounds for relief asserted by Vick, and his objections to the report. The district
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court concurred with the magistrate judge’s “thorough and well-reasoned
analysis,” adopted the report and recommendation, and denied the petition for
writ of habeas corpus. (R. Doc. 22 at 3.)
Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U .S. 322, 336 (2003). W e will issue a COA only if Vick makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Vick has done nothing more than incorporate by reference
the arguments made in his original habeas petition. Other than articulating his
disagreement with the district court’s denial of his petition, he has pointed to no
facts nor made any argument showing he is entitled to a COA.
The district court’s order of dismissal is not reasonably debatable. Slack,
529 U .S. at 484. We D ISM ISS Vick’s application for a COA.
E ntered by the C ourt:
T errence L. O ’B rien
United States Circuit Judge
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