Spencer v. Milyard ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
August 29, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
TRACY SPENCER,
Petitioner-Appellant,
v.
No. 08-1172
KEVIN MILYARD, and THE
(D.C. No. 06-cv-01892)
ATTORNEY GENERAL OF THE
(D. Colo.)
STATE OF COLORADO,
Respondent-Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
Petitioner-Appellant Tracy Spencer requests a certificate of appealability
(“COA”), see 28 U.S.C. § 2253(c), that would enable him to appeal the district
court’s decision denying him habeas relief, see 28 U.S.C. § 2254, from his
conviction for first-degree murder.
Spencer pled guilty to one count of first-degree murder and one count of
second-degree murder for the deaths of two women, in exchange for withdrawal
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
of the death penalty. Spencer was sentenced to life imprisonment on the first-
degree murder count and twenty-four years in prison on the second-degree murder
count, the sentences to be served consecutively. In this action, Spencer only
seeks habeas relief from the sentence of life imprisonment.
In his habeas petition, Spencer raises two issues with respect to his
conviction: (1) whether he received ineffective assistance of counsel; and (2)
whether the loss or destruction of trial counsel’s case file, after his trial and
appeal, violated his due process rights.
Spencer will be entitled to a COA if he can make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make such a
showing by establishing 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, 483-84 (2000) (quotations omitted).
For the reasons set forth in the magistrate judge’s report and
recommendation, as adopted by the district court, we conclude that Spencer has
failed to make an adequate showing of the denial of a constitutional right in this
case. We, therefore, DENY Spencer’s motion for a COA and DISMISS this
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appeal. Additionally, Spencer’s motion to proceed in forma pauperis on appeal is
DENIED.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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