Triggs v. State of Colorado , 581 F. App'x 729 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSNovember 4, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JAMES SIDNEY TRIGGS,
Petitioner - Appellant,
v.
No. 14-1213
THE STATE OF COLORADO; LOU (D. Colorado)
ARCHULETA, Warden, Fremont (D.C. No. 1:13-CV-03292-REB)
Correctional Facility; JOHN
SUTHERS, The 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 James Triggs’s pro se requests for a
certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.
Triggs seeks a COA so he can appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). We grant Triggs’s request to
proceed on appeal in forma pauperis. Because Triggs has not, however, “made a
substantial showing of the denial of a constitutional right,” id. § 2253(c)(2), this
court denies his request for a COA and dismisses this appeal.
A Colorado state jury convicted Triggs on multiple counts of sexually
assaulting his children. The trial court imposed a lengthy sentence of
imprisonment. His convictions and sentence were affirmed, in an unpublished
decision, on direct appeal to the Colorado Court of Appeals; the Colorado
Supreme Court denied certiorari review. After the Colorado state courts denied
Triggs’s request for post-conviction relief, Colo. R. Crim. P. 35(c), Triggs filed
the instant § 2254 petition raising twelve overarching challenges to his state
convictions. In two thorough and well-stated orders, the district court concluded
as follows: (1) the overwhelming majority of claims set out in Triggs’s petition
were procedurally barred (i.e., 1(b), the portion of claim 2 relating to Triggs’s
eldest son, 3, all portions of claim 4 except 4(b)(ii), 1 5, 6, 7, 9(b), 9(c), the
assertion of cumulative error in claim 9, 10, and 11); (2) claim 9(a) was so
vaguely pled that it was subject to summary dismissal under Rule 4 of the Rules
Governing Section 2254 Cases, Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977);
(3) the Colorado Court of Appeals’ factual and legal resolution of the remaining
claims (i.e., 1(a), 2, 4(b)(ii), 8, and 12) was reasonable, 28 U.S.C. § 2254(d).
The granting of a COA is a jurisdictional prerequisite to Triggs’s appeal
from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
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The district court determined the allegations of ineffective assistance of
counsel set out in claim 4 were procedurally barred only after ordering further
briefing and concluding none of the claims were sufficiently substantial to
implicate the special procedural default rule set out in Martinez v. Ryan, 132 S.
Ct. 1309 (2012).
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(2003). To be entitled to a COA, Triggs 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). In evaluating
whether Triggs has satisfied his burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his claims. Id. at 338. Although Triggs 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 Triggs’s appellate filings, the district
court’s orders dated March 3, 2014 and May 19, 2014, and the entire record
before this court, we conclude Triggs is not entitled to a COA. In so concluding,
this court has nothing to add to the comprehensive analysis set out by district
court. Accordingly, this court DENIES Triggs’s request for a COA and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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