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

### April 11, 2006 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNIS DONNELL JONES,

Petitioner, No. 05-6235
v. (W. D. Oklahoma) MIKE MULLIN, Warden,

Respondent. (CIV-04-1544-F)

ORDER

Before EBEL , McKAY , and HENRY , Circuit Judges.

Dennis Jones, an Oklahoma state prisoner proceeding pro se , seeks a certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 petition for habeas corpus. We deny his request for a COA and dismiss his appeal. I. BACKGROUND In June 2002, a jury convicted Mr. Jones of (1) one count of assault and battery with a deadly weapon with intent to kill, i n violation of O KLA
. S TAT . tit. 21 § 645; (2) forcible oral sodomy, in violation of O KLA
. S TAT . tit. 21 § 888; (3) two counts of rape in the first degree, in violatio n of O KLA
. S TAT . tit. 21 § 1111; (4) robbery with a dangerous weapon, in violation o f O KLA
. S TAT . tit. 21 § 888;2

(5) kidnaping, in violation of O KLA
. S TAT . tit. 21 § 741; and (6) one count of assault and battery with a deadly weapon with inten t to kill, in violation of O KLA
. S TAT . tit. 21 § 645. The jury found that Mr. Jones had committed these offenses after he had previously been convicted of two or mo re felonies. The jury sentenced him to consecutive terms of imprisonment of 50 years, 25 years, 75 years, 75 years, 35 years, and 75 years, respective ly. The Oklahoma Court of Criminal Appeals affirmed his convictions in August2003, and on November 28, 2003, the ninety-day period expired for filing a pe tition for certiorari in the United States Supreme Court. On November 12, 2004, Mr. Jones timely filed a peti tion for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, raisin g four grounds for relief. The magistrate judge recommended that the all claims sh ould be dismissed because they lacked merit. The district court adopted the magistrate judge’s report and recommendation with respect to all claims. Mr. Jon es has narrowed his request for a COA to only one claim: that the trial court’s failure to provide a jury instruction regarding parole eligibility violated h is right to due process. II. DISCUSSION Issuance of a COA is jurisdictional. Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). A COA 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). “A3

petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court’s resolution of hi s constitutional claims or that jurists could conclude the issues presented are ade quate to deserve encouragement to proceed further.” Miller-El , 537 U.S. at 327. “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Id . at 336. “This threshold inquiry does not require full consideration of the factual or legal bases ad duced in support of the claims. In fact, the statute forbids it.” Id. While Mr. Jones is not required to prove the merits of his case in applying for a COA, he must n evertheless demonstrate “something more than the absence of frivolity or th e existence of mere good faith on his or her part.” Id. at 338 (internal quotation marks omitted). Mr. Jones contends that he is entitled to re-senten cing because due process demands that a jury be informed that Oklahoma’s par ole eligibility requirements effectively require him to serve such a large porti on of his sentence that there is no possibility of parole during his natural life. The magistrate judge recommended that this claim be denied because the t rial court’s refusal to give the requested jury instruction was “not contrary to or an unreasonable application of clearly-established Supreme Court jurisprudence, an d the omission of a jury instruction on the issue of parole eligibility did not render [Mr. Jones’s] trial fundamentally unfair.” Rec. doc. 34, at 19 (Report and Recommendation, filed4

Apr. 28, 2005). We have carefully reviewed Mr. Jones’s brief, the d istrict court’s disposition, the magistrate judge’s report and reco mmendation, and the record on appeal. For substantially the same reasons set forth in the magistrate judge’s report and recommendation, we hold that Mr. Jones’s application for a COA does not make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We therefore GRANT Mr. Jones’ s motion to proceed in forma pauperis , but we deny his request for a COA and accordingly we DISMISS this appeal. Entered for the Court,

Robert H. Henry Circuit Judge