FILED

United States Court of Appeals

Tenth Circuit

April 8, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANIEL G. SELF, 

Petitioner - Appellant,

v.

KEVIN MILYARD, Warden, Sterling

Correctional Facility; THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO, 

Respondents - Appellees.

No. 12-1072

(D.C. No. 1:11-CV-00502-REB)

(D. Colo.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY*

Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.

Daniel G. Self, a prisoner in the custody of the State of Colorado

proceeding pro se,1

 seeks a certificate of appealability (“COA”) to appeal from

the district court’s denial of his 28 U.S.C. § 2254 petition. Additionally, he has

* This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and

Tenth Circuit Rule 32.1.

1 Because Mr. Self is proceeding pro se, we construe his filings

liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.

Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010).
renewed his motion—that the district court previously denied—to proceed on

appeal in forma pauperis (“IFP”). Having thoroughly reviewed the relevant law

and the record, we deny Mr. Self’s request for a COA, grant Mr. Self’s request to

proceed IFP, and dismiss this matter.

I

Mr. Self was tried by a jury and convicted of first-degree murder in the

shooting death of L.G., who was seven months pregnant at the time of her murder. 

On direct appeal and state post-conviction review, the Colorado Court of Appeals

(“CCA”) upheld his conviction.

Mr. Self then filed the instant habeas petition in federal district court,

seeking relief under 28 U.S.C. § 2254. Mr. Self’s petition alleged six claims for

relief:

(1) Ineffective assistance of trial counsel and prosecutorial

misconduct; (2) trial court error in allowing cumulative errors

and harmless errors to taint the trial process; (3) trial court error

in allowing prosecution’s comments on the death and delivery of

a fetus; (4) trial court error in admitting out-of-court statements

based on excited utterances and other act evidence; (5) trial court

error in admitting statements made in violation of Miranda; and

(6) CCA error in invoking exceptions to the warrant requirement.

Aplt. App. at 711 (Order to Dismiss in Part & for Answer, filed June 15, 2011). 

After an initial analysis, the district court dismissed Mr. Self’s ineffectiveassistance-of-counsel claim as well as his cumulative-error claim and directed

Respondents to address the merits of the remaining claims. After reviewing

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Respondents’ subsequent response, all of Mr. Self’s filings, and the voluminous

record, the district court denied Mr. Self’s petition. The district court also denied

Mr. Self a COA and his motion to proceed IFP.

II

Mr. Self now seeks a COA from our court on all of the claims that he

presented to the district court, except his claim regarding the alleged ineffective

assistance of his trial counsel. In other words, Mr. Self seeks a COA regarding

whether the district court erred by: (1) dismissing his first prosecutorial

misconduct claim without first conducting an evidentiary hearing; (2) finding that

Stone v. Powell, 428 U.S. 465 (1976), precluded Mr. Self’s Fourth Amendment

claim, and dismissing this claim on the merits; (3) denying Mr. Self’s

prosecutorial misconduct claim regarding mentions of a fetus in violation of a

pre-trial order; (4) finding no merit to his claim regarding hearsay and other-acts

evidence; (5) finding no merit to Mr. Self’s claim regarding Miranda violations;

and (6) finding that his cumulative-harmless-error claim was unexhausted,

although he had allegedly “properly presented [it] to the state’s highest court.” 

Mot. for COA at 1–2 (filed Mar. 5, 2012).

A

“[A] state prisoner must obtain a COA to appeal the denial of a habeas

petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever

the detention complained of . . . arises out of process issued by a State court.” 

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Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (quoting Montez v.

McKinna, 208 F.3d 862, 867 (10th Cir. 2000)) (internal quotation marks omitted);

see 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36

(2003). We will not issue a COA unless “the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); accord

Harris v. Dinwiddie, 642 F.3d 902, 906 (10th Cir. 2011). “To make such a

showing, an applicant 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.’” Harris, 642 F.3d at 906 (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). Our determination “requires an overview

of the claims in the habeas petition and a general assessment of their merits.”

Miller-El, 537 U.S. at 336 (emphasis added). This overview, however, is

necessarily limited as our “threshold inquiry does not require full consideration of

the factual or legal bases adduced in support of the claims. In fact, the statute

forbids it.” Id.

B

Pursuant to the framework set out by the Supreme Court, most notably in

Miller-El and Slack, we have carefully reviewed Mr. Self’s opening brief and

motion for a COA, as well as the district court’s decisions and the voluminous

record, including the trial testimony, the state trial court’s rulings, and the CCA’s

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decisions. Based upon this review, for reasons that are substantially the same or

similar to those that the district court articulated, we conclude that Mr. Self is not

entitled to a COA on any of his claims.2

 He has not made a substantial showing

of the denial of a constitutional right. Reasonable jurists could not debate

whether Mr. Self’s § 2254 motion should have been resolved in a different

manner, and the issues that he seeks to raise on appeal are not adequate to deserve

encouragement to proceed further.

III

Accordingly, we deny Mr. Self’s request for a COA, grant his motion to

2 We pause to note that, to the extent that we disagree with some of the

particulars of the district court’s analysis, such a disagreement does not perforce

require us to grant Mr. Self a COA, so long as we are confident in the correctness

of the district court’s ultimate resolution of his habeas claims—and we are. See

Whitmore v. Parker, 484 F. App’x 227, 236 (10th Cir. 2012) (“Although adopting

a different rationale, we agree with the district court’s ultimate rejection of this

claim.”); see also Brown v. Roberts, No. 11-3085, 2012 WL 5507236, at *4 (10th

Cir. Nov. 14, 2012) (“While we arrive at that conclusion through a somewhat

different path than that employed by the district court, we find that reasonable

jurists could not disagree with the district court’s ultimate resolution in

dismissing the petition.”). For example, with respect to Mr. Self’s request for an

evidentiary hearing in connection with his prosecutorial misconduct claim, this

request is easily resolved by reliance on Cullen v. Pinholster, 131 S. Ct. 1388

(2011), where the Court explained that “Section 2254(e)(2) imposes a limitation

on the discretion of federal habeas courts to take new evidence in an evidentiary

hearing,” id. at 1400–01, and held that “review under § 2254(d)(1) is limited to

the record that was before the state court that adjudicated the claim on the

merits,” id. at 1398. The district court did not cite, nor refer to, Cullen. But

under both the district court’s analysis and under a more appropriate analysis

based on Cullen, Mr. Self’s claim of prosecutorial misconduct does not warrant an

evidentiary hearing, nor does his claim warrant a COA.

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proceed IFP, and dismiss this matter. 

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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