Martinez v. Kurtz , 411 F. App'x 186 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
February 9, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GABRIEL A. MARTINEZ,
Petitioner-Appellant, No. 10-1430
v. (D.C. No. 1:08-CV-01220-CMA-MEH)
ROBERT KURTZ, Warden of (D. Colo.)
C.D.O.C., and THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner seeks a certificate of appealability to appeal the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. Following a jury trial, Petitioner
was convicted on drug and child pornography charges. He was also convicted on
a special offender charge based on a firearm that was found in close proximity to
the methamphetamine in his bedroom. On direct appeal, Petitioner alleged
several grounds for relief, including a Fourth Amendment claim, an overbreadth
*
This order is not binding precedent except under the doctrines of law of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.
and void-for-vagueness challenge to the special offender statute, and claims of
insufficient evidence as to the child pornography and methamphetamine
manufacturing charges. The Colorado Court of Appeals considered and rejected
all of these arguments in a lengthy published opinion, see People v. Martinez, 165
P.3d 907 (Colo. App. 2007), and the Colorado Supreme Court denied certiorari.
Petitioner then filed the instant federal habeas petition, in which he raised
the same grounds for relief. The magistrate judge concluded that Petitioner had
not established that he was entitled to federal habeas relief under the controlling
standards set forth in 28 U.S.C. § 2254. The district court agreed and accordingly
dismissed Petitioner’s habeas petition.
After carefully reviewing Petitioner’s filings and the record on appeal, we
conclude that reasonable jurists would not debate whether the district court erred
in dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). For
substantially the same reasons discussed at length by the state appellate court, the
magistrate judge, and the federal district court, we DENY the application for a
certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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