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

### July 12, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL INMAN, Petitioner-Appellant,

v. RICK SOARES; KEN SALAZAR, Respondents-Appellees. No. 04-1351 (District of Colorado) (D.C. No. 01-M-998)

ORDER

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges. Paul Inman seeks a certificate of appealability (“C OA”) so he can appeal the district court’s denial of the habeas petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appea l may be taken from a final order disposing of a § 2254 petition u nless the petitioner first obtains a COA). Inman was convicted in Colorado state court of assault, conspiracy to commit assault, and possession of drug paraphernali a. On the first day of Inman’s trial, his counsel advised the court that he also r epresented a prosecution witness in an unrelated case. Counsel had obtained waivers from both Inman and the-2-

witness and filed a motion with the court seeking approval of the waivers. The district court accepted the waivers and permitted c ounsel to represent Inman. After his convictions were affirmed on direct appea l, Inman sought postconviction relief pursuant to Rule 35(c) of the Col orado Rules of Criminal Procedure. Inman argued, inter alia , that the trial court erred when it accepted his waiver of counsel’s conflict because he was eff ectively forced to waive his constitutional right to conflict-free counsel in or der to preserve his right to a speedy trial. See Simmons v. United States , 390 U.S. 377, 394 (1968). Inman’s Rule 35(c) motion was denied. The Colorado Court o f Appeals affirmed the denial, concluding that the record did not support Inman’s contention that a waiver of his right to a speedy trial was inevitabl e unless he waived his right to conflict-free counsel. Inman filed a pro se § 2254 petition in federal district court and the c ourt appointed the Federal Public Defender to represent him. After the conflict issue was briefed, the district court denied the § 2254 p etition, rejecting Inman’s argument that the state court’s determination was a n unreasonable application of federal law. See 28 U.S.C. § 2254(d). Specifically, the district c ourt concluded that the state court’s determinations that Inman’s waiver was valid and that Inman1 Inman’s right to a speedy trial arose pursuant to s tate statute, not pursuant

to the Constititution. See Colo. Rev. Stat. § 18-1-405. -3- was not forced to surrender one constitutional righ t to assert another right 1 were supported by the record. This court cannot grant Inman a COA unless he can d emonstrate “that reasonable jurists could debate whether (or, for th at matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). I n evaluating whether Inman has carried his burden, this court undertakes “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims. Miller-El v. Cockrell , 537 U.S. 322, 338 (2003). Inman is not required to demonstrate that his appeal will succeed to be enti tled to a COA. He must, however, “prove something more than the absence of frivolity or the existence of mere good faith.” Id. (quotations omitted). This court has reviewed Inman’s appellate brief, th e district court’s order, and the entire record on appeal pursuant to the fra mework set out by the Supreme Court inMiller-Eland concludes that Inman is not entitled to a COA. The district court’s resolution of Inman’s claims is not reasonably subject to debate and the claims are not adequate to deserve further proceedi ngs. Accordingly, Inman has-4-

not “made a substantial showing of the denial of a constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2). This court denies Inman’s request for a COA and dismisses this appeal. Entered for the Court PATRICK FISHER, Clerk of Court By Deputy Clerk