F I L E D

United States Court of Appeals

Tenth Circuit

August 31, 2005

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARMANDO HERNANDEZ,

Petitioner-Appellant,

v.

STEVE BECK, Warden,

Respondent-Appellee.

No. 05-6014

(Western District of Oklahoma)

(D.C. No. 04-CV-1022-W)

ORDER

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges. 

Proceeding pro se, Armando Hernandez seeks a certificate of appealability

(“COA”) 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

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Hernandez’s motion to proceed in forma pauperis

is granted.

Hernandez pleaded guilty to two counts of robbery with a firearm and one

count of assault with a deadly weapon. He did not seek to withdraw his guilty

plea or otherwise challenge his conviction on direct appeal. He did, however, file
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an application for post-conviction relief in Oklahoma state court. The state

district court denied Hernandez’s post-conviction application, relying on

Oklahoma’s procedural default rule. See Okla Stat. tit. 22, § 1086; Neill v. State,

943 P.2d 145, 146 (Okla. Crim. App. 1997). The denial of post-conviction relief

was affirmed by the Oklahoma Court of Criminal Appeals. 

On June 17, 2002, Hernandez filed the instant § 2254 petition in federal

district court. In his federal petition, Hernandez raised the same eight claims he

attempted to raise in his state post-conviction application: (1) he was not advised

of his right to contact the Mexican Consul, (2) the trial court failed to advise him

of its intent to impose more than the minimum sentence on each count, (3) his

confession is invalid as a result of police entrapment, (4) he was subjected to

double jeopardy, (5) his video arraignment was unconstitutional, (6) the

Oklahoma Department of Corrections failed to use the Truth in Sentencing laws,

(7) his guilty plea was not made knowingly and voluntarily, and (8) his counsel

provided ineffective assistance. The district court concluded that the procedural

bar rule applied by the Oklahoma courts to the first seven issues raised by

Hernandez was an independent and adequate state procedural ground and that

Hernandez had failed to show cause and prejudice to excuse the default and had

also failed to demonstrate that the failure to review the merits of the defaulted

claims would result in a fundamental miscarriage of justice. See Bousley v.
1The district court also concluded that ineffective assistance of counsel did

not constitute cause for the procedural default of Hernandez’s first seven claims. 

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United States, 523 U.S. 614, 622 (1998). The district court then concluded that

federal review of Hernandez’s ineffective assistance claims was not barred by the

procedural default. See English v. Cody, 146 F.3d 1257, 1263-64 (10th Cir.

1998). Although it reviewed the claims, it determined that they lacked merit.1

This court cannot grant Hernandez a COA unless he can 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether

Hernandez 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). Hernandez is not

required to demonstrate that his appeal will succeed to be entitled 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 Hernandez’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that
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Hernandez is not entitled to a COA. The district court’s resolution of

Hernandez’s claims is not reasonably subject to debate and the claims are not

adequate to deserve further proceedings. Accordingly, Hernandez has 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 Hernandez’s request for a COA and dismisses this

appeal. 

Entered for the Court

PATRICK FISHER, Clerk of Court

By

Deputy Clerk