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

### APR 5 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

FRANK M. MUNIZ, Petitioner-Appellant,

v. DAVID TRUJILLO, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 03-2306 (District of New Mexico) (D.C. No. CIV-03-157-WPJ/WDS)

ORDER

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

This matter is before the court on Frank M. Muniz’s pro se request for a certificate of appealability (“COA”). Muniz seeks a COA so that he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final order in a habeas corpus proceeding in which the de tention complained of arises out of process issued by a State court,” unless the petitioner first obtains a COA). Because Muniz has not “made a substantial showing o f the denial of a1 As noted by the district court, there is some limit ed discussion in the

opinion of the New Mexico Court of Appeals of the m erits of these two claims. That discussion, however, is strictly limited to a determination whether to -2- constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal. Following a jury trial in New Mexico state court, M uniz was convicted of kidnapping (firearm enhancement), aggravated assaul t on a peace officer with a deadly weapon (firearm enhancement), attempted escape from a peace officer (firearm enhancement), and attempted disarming of apeace officer (firearm enhancement). After exhausting his state court rem edies, Muniz filed the instant 28 U.S.C. § 2254 habeas petition. In his § 2254 pe tition, Muniz raised the following three claims: (1) the prosecutor’s mentio n of Muniz’s incarceration during his opening statement deprived Muniz of a fa ir trial; (2) allowing the victim to testify at trial about his investigation of the incident deprived Muniz of a fair trial; and (3) the trial court erred in admi tting into evidence at trial information that a gun found at the time of Muniz’s apprehension had been stolen. In denying Muniz’s habeas petition, the district co urt concluded that Muniz’s first and second claims were procedurally defaulted. Mun iz had failed to raise objections at trial to the prosecutor’s statement a nd the testimony of the victim and, accordingly, the New Mexico Court of Appeals c oncluded on direct appeal that the issues were waived. 1 Because Muniz had not offered a showing of causedisregard the waiver. As to both issues, the state court ultimately concluded that

Muniz had failed to adequately demonstrate “plain o r fundamental error” sufficient to overcome his waiver. In these circum stances, the district court correctly concluded that the New Mexico Court of Ap peals “clearly and expressly” rested its rejection of Muniz’s claims o n a state procedural bar. Harris v. Reed, 489 U.S. 255, 261-63 (1989) (holding that a proce dural default will bar federal habeas review of defaulted claims where the state court “clearly and expressly” rests its decision on that procedural bar). -3- and prejudice or a fundamental miscarriage of justi ce, the district court concluded Muniz’s first two claims were procedurally barred. English v. Cody , 146 F.3d 1257, 1259 (10th Cir. 1998) (“On habeas review, thi s court does not address issues that have been defaulted in state court on a n independent and adequate state procedural ground, unless the petitioner can demonstrate cause and prejudice or a fundamental miscarriage of justice.”). As to Muniz’s third claim, the district court concluded that in light of the weight of the evidence, the admission of evidence that the weapon was stolen did not render Muniz’s trial fundamentally unfair. Nichols v. Sullivan , 867 F.3d 1250, 1253 (10th Cir. 1989) (holding that state-court evidentiary rulings will support habeas relief only where that ruling rendered a petitioner’s trial fundamentally unfair)

. In his application for a COA, Muniz raises only the first and second claims he presented to the district court. To be entitled to a COA, Muniz must make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). To make the requisite showing, he mustdemonstrate “that reasonable-4-

jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that th e issues presented were adequate to deserve encouragement to proceed furthe r.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether Muniz has satisfied his burden, this court undertakes “a prel iminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Id. at 338. Although Muniz need not demonstrate his appea l will succeed to be entitled to a COA, he must “prove something more than the ab sence of frivolity or the existence of mere good faith.” Id. Having undertaken a review of Muniz’s application f or a COA and appellate filings, the district court’s order, and the entire record before this court pursuant to the framework set out by the Supreme Co urt in Miller-El , this court concludes that Muniz is not entitled to a COA. The district court’s resolution of Muniz’s § 2254 petition is not reasonably subject t o debate and the issues he seeks to raise on appeal are not adequate to deserv e further proceedings. Accordingly, this court DENIES Muniz’s request for a COA and DISMISSES this appeal. Entered for the Court PATRICK FISHER, Clerk of Court

By Deputy Clerk