Sullivan v. Suthers

FILED
United States Court of Appeals
Tenth Circuit
January 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ROBERT BRUCE SULLIVAN,
Petitioner - Appellant,
No. 09-1457
v.
(D. Colorado)
(D.C. No. 1:06:CV-01477-MSK)
JOHN W. SUTHERS, The Attorney
General of the State of Colorado,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Robert Bruce Sullivan’s pro se requests
for a certificate of appealability (“COA”) and to proceed on appeal in forma
pauperis. Sullivan 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 Sullivan’s
request to proceed on appeal in forma pauperis. Because Sullivan 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.
Sullivan was convicted in Colorado state court of one count of harassment
by stalking, one count of violating a restraining order, one count of second degree
arson, and one count of domestic violence. His convictions were affirmed on
direct appeal. People v. Sullivan, 53 P.3d 1181, 1185 (Colo. App. 2002). After
his request for state post-conviction relief was denied, People v. Sullivan, No.
04CA0226, slip op. at 1 (Colo. App. June 9, 2005), Sullivan filed the instant
§ 2254 habeas petition. Sullivan’s habeas petition raises a multitude of claims,
most involving allegations of ineffective assistance of trial counsel. In a lengthy
and comprehensive order, the district court determined the record conclusively
established Sullivan was not entitled to habeas relief. Accordingly, the district
court denied Sullivan’s request for an evidentiary hearing and denied Sullivan’s
§ 2254 habeas petition.
The granting of a COA is a jurisdictional prerequisite to Sullivan’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, Sullivan 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 Sullivan has satisfied his burden, this court
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undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Sullivan 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 Sullivan’s appellate filings, the district
court’s Order, and the entire record before this court, we conclude Sullivan is not
entitled to a COA. In so concluding, this court has nothing to add to the
comprehensive analysis set out in the district court’s order dated September 29,
2009. Accordingly, this court DENIES Sullivan’s request for a COA and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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