Porth v. Ferguson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 24 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
KEVIN CHARLES PORTH,
Petitioner-Appellant,
v.
JAMES FERGUSON, Warden, No. 98-8090
Wyoming Department of Corrections (D.C. No. 97-CV-36)
State Penitentiary; E. K. MCDANIEL, (Wyoming)
Warden, Nevada Department of
Corrections State Penitentiary;
ATTORNEY GENERAL OF THE
STATE OF WYOMING,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
therefore ordered submitted without oral argument.
Mr. Porth appeals the denial of his petition for a writ of habeas corpus
under 28 U.S.C. § 2254. He also moves for a certificate of appealability. We
deny his motion and dismiss the appeal.
Mr. Porth was convicted of conspiracy to commit aggravated robbery and
sentenced to twenty-five years of incarceration. His conviction was affirmed on
appeal. See Porth v. State, 868 P.2d 236 (Wyo. 1994). His application for post-
conviction relief was denied as well. He filed this petition for a writ of habeas
corpus raising ten claims: 1) ineffective assistance of appellate counsel for failure
to raise ineffective assistance of trial counsel; 2) failure of the state courts to
provide him with assistance of counsel in his petition for post-conviction relief;
3) failure of state trial court to grant him an evidentiary hearing on his petition for
post-conviction relief; 4) ineffective assistance of appellate counsel for failure to
challenge the trial court’s refusal to remove leg irons; 5) trial court error in
refusing to admit a co-conspirator’s hearsay statement; 6) trial court error in
refusing to grant defense witness immunity; 7) trial court error in permitting the
co-conspirator to invoke his Fifth Amendment privilege in the presence of the
jury; 8) trial court error in allowing defense witness to testify over the
prosecutor’s objection; 9) trial court error in admitting evidence seized without
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probable cause; and 10) insufficient evidence to support the verdict. In a
thorough order, the district court rejected Mr. Porth’s claims on the merits and
denied his petition.
Pursuant to 28 U.S.C. § 2253 (c)(1), a circuit judge must issue a certificate
of appealability before a state prisoner may appeal the denial of a habeas corpus
petition. A certificate of appealability “may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253 (c)(2); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).
After careful review of Mr. Porth’s application for a certificate of appealability,
his brief, the district court’s order and the entire record before us, we conclude
that Mr. Porth’s claims are meritless substantially for the reasons set forth in the
district court’s order denying the petition. Since Mr. Porth has not made a
substantial showing of the denial of a constitutional right, we deny his request for
a certificate of appealability and dismiss the appeal.
APPLICATION DENIED; APPEAL DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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