Shanklin v. Ortiz

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 2, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
GEORGE SHANKLIN ,
Petitioner–Appellant, No. 07-1004
v. (D.C. No. 04-CV-841-ZLW )
JOE ORTIZ, Director, Colorado (D . Colo.)
Department of Corrections; LARRY
REID , W arden, Colorado State
Penitentiary, Canon City, Colorado;
JO HN SUTHERS, Attorney General,
State of Colorado,
Respondents–Appellees.
OR DER *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
Petitioner, a state prisoner represented by counsel, seeks a certificate of
appealability to appeal the district court’s denial of his § 2254 habeas petition.
Petitioner contends that he received ineffective assistance of counsel in his trial
for first-degree and attempted first-degree murder because counsel failed to
interview and present testimony from a woman who would have contradicted
some of the testimony given by a key prosecution witness. This claim was
*
This order is not binding precedent, except under the doctrines of law of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.
rejected in state postconviction proceedings, and the federal magistrate judge
concluded that this rejection was not “contrary to” and did not “involve[] an
unreasonable application of[] clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1) (2006). The
magistrate judge agreed with Petitioner that one of the state appellate court’s
factual findings was not supported by the record. However, this finding was not
critical to the state court’s other factual determinations nor to the court’s
conclusion that Petitioner had not demonstrated that he received ineffective
assistance of counsel. After considering Petitioner’s objections, the district court
adopted and approved the magistrate judge’s recommendation and accordingly
denied the petition.
To obtain a certificate of appealability, Petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006).
In order to meet this burden, Petitioner must demonstrate “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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
W e have carefully reviewed Petitioner’s filings, the magistrate judge’s
thorough report and recommendation, the district court’s disposition, and the
record on appeal, including the record from the state trial and postconviction
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proceedings. Nothing in these materials raises an issue which meets our standard
for the grant of a certificate of appealability. For substantially the reasons set
forth by the magistrate judge and district court, we DENY Petitioner’s request for
a certificate of appealability and DISM ISS the appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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