## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 6 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY DEAN MEINHARD,

Petitioner - Appellant, No. 04-4098
v. (D.C. No. 2:02-CV-878-TC) CLINT FRIEL, Warden,

Respondent - Appellee. (D. Utah)

ORDER

Before BRISCOE , McKAY , and HARTZ , Circuit Judges.
Applicant Jimmy Dean Meinhard was convicted of murd er and tampering with evidence in Utah state court. The conviction was affirmed on direct appeal by the Utah Court of Appeals. The Supreme Court of Utah denied his petition for a writ of certiorari. He then filed in federal dis trict court an application for a writ of habeas corpus which the court denied. He seeks a certificate of appealability (COA) to review the district court’s rejection of h is claim that he was denied due process by the state’s loss or destruction of excul patory evidence. The district court denied the claim on the ground that Applicant had failed to prove by clear and convincing evidence that the state court had cl early erred in finding that no-2-

evidence was lost. Because reasonable jurists woul d not disagree on the merits of Applicant’s claim, we deny his application for a CO A. “A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits,” the prisoner “must demonstrate that reason able jurists would find the district court’s assessment of the constitutional c laims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We recognize that in d etermining whether to issue a COA, a “full consideration of th e factual or legal bases adduced in support of the claims” is not required. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). Instead, the decision must be bas ed on “an overview of the claims in the habeas petition and a general assessm ent of the merits.” Id. The Utah trial court found that the allegedly lost or destroyed hair and fiber evidence had never existed. Utah v. Meinhard, 2001 WL 1243357 at *1 (Utah App. Oct. 18, 2001). The state court of appeals he ld that “the evidence supports the trial court’s finding that no evidence was lost .” Id. Our review of a state court’s findings of fact in a habeas proceeding is governed by 28 U.S.C. § 2254(e)(1), which states: In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to th e judgment of a State court, a determination of a factual issu e made by a State court shall be presumed to be correct. The applicant-3-

shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. The district court, applying the proper standard of review, concluded that Applicant failed to rebut the presumption, noting t hat he “has suggested nothing whatsoever in the evidence that would put in questi on the trial court’s reasoned consideration of the testimony it heard.” Dist. Ct . Op. at 10-11. Applicant has failed again in this regard in his brief to this co urt. No jurist of reason can disagree with the district court’s conclusion that Applicant failed to make a substantial showing of a violation of a constitutional right. Consequently, we DENY the application for aCOA and DISMISS the appeal. ENTERED FOR THE COURT

Harris L Hartz Circuit Judge