* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### MAY 29 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELMER MARSH,

Petitioner - Appellant,

v. BRENT CROUSE; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. No. 02-1442 (D.C. No. 01-N-1487(CBS)) (D. Colorado)

ORDER AND JUDGMENT *

Before SEYMOUR , MURPHY , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

This case is before the court on Elmer Marsh’s pro se requests for a certificate of appealability (“COA”) and to proceedon appeal in forma pauperis

. Marsh seeks a COA so that he can appeal the distric t court’s dismissal with prejudice of his 28 U.S.C. § 2254 habeas corpus pet ition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal can be take n from a final order denying a § 2254 petition unless the petitioner first obtains a COA). We grantMarsh’s request to proceed on appeal in forma pauperis . Because Marsh has not “made a substantial showing of the denial of a constitution al right,” however, this court denies his request for a COA and dismisses this appeal. Id. § 2253(c)(2). Marsh was convicted in Colorado state court of firs t degree sexual assault and second degree kidnaping. He was sentenced to t erms of imprisonment of twenty-two years for sexual assault and twenty year s for kidnaping; the sentences were ordered to run consecutively. After exhaustin g his state court remedies, Marsh filed the instant § 2254 petition raising the following two claims: (1) the instruction given the jury on kidnaping omitted an essential element, thereby causing a structural error in the proceedings; and (2) trial counsel’s failure to object to the instruction and to provide a legally sufficient instruction constituted ineffective assistance of counsel. Marsh’s petitio n was referred to a magistrate judge for initial proceeding pursuant to 28 U.S.C. § 636(b)(1)(B). Applying the deferential review standards set out in 28 U.S.C. § 2254(d), the magistrate judge-3-

concluded that the direct appeal decision of the Co lorado Court of Appeals (“CCA”) rejecting Marsh’s claims of error on the me rits was not contrary to or an unreasonable application of clearly established Sup reme Court precedent. In particular, the magistrate judge concluded the CCA properly relied on Neder v. United States , 527 U.S. 1, 8-15 (1999), to conclude that the omi ssion of an element from the jury instructions is subject to re view for harmlessness and that the omission of the asportation-substantially-incre ased-the-risk-of-harm element was harmless in light of the uncontested evidence p resented at trial. The magistrate judge further determined the CCA properly concluded that Marsh’s ineffective assistance of counsel claim failed for the same reason. Upon de novo review, the district court adopted the magistrate j udge’s report and recommendation and dismissed Marsh’s § 2254 petitio n with prejudice. To be entitled to a COA, Marsh must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(c)(2). To make the requisite showing, he must demonstrate “that reasonable juris ts 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 t o deserve encouragement to proceed further.” Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003) (quotations omitted). In deciding whether Marsh has carried hi s burden, this court undertakes “a preliminary, though not definitive, consideratio n of the [legal] framework”-4-

applicable to each of his claims. Id. at 1040. Although Marsh need not demonstrate his appeal will succeed to be entitled to a COA, he must “prove something more than the absence of frivolity or the existence of mere good faith.” Id. Having undertaken a review of Marsh’s application f or a COA, the parties’ appellate briefs, the magistrate judge’s thorough r eport and recommendation, the district court order, and the entire record on appe al pursuant to the framework set out by the Supreme Court in Miller-El, this court concludes that Marsh is not entitled to a COA. The district court’s resolutionof Marsh’s claims is not reasonably subject to debate and the claims are notadequate to deserve further proceedings. Accordingly, this court DENIES his request for a COA and DISMISSES this appeal. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge