## 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 appealab ility (“COA”) so he can appeal the district court’s denia l 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 motio n to proceed in forma pauperis is granted

. Hernandez pleaded guilty to two counts of robbery w ith 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 direc t appeal. He did, however, file-2-

an application for post-conviction relief in Oklaho ma 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 den ial of post-conviction relief was affirmed by the Oklahoma Court of Criminal Appe als. On June 17, 2002, Hernandez filed the instant § 225 4 petition in federal district court. In his federal petition, Hernandez raised the same eight claims he attempted to raise in his state post-conviction app lication: (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 sente nce on each count, (3) his confession is invalid as a result of police entrapm ent, (4) he was subjected to double jeopardy, (5) his video arraignment was unco nstitutional, (6) the Oklahoma Department of Corrections failed to use th e 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 firs t seven issues raised by Hernandez was an independent and adequate state pro cedural 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 revi ew the merits of the defaulted claims would result in a fundamental miscarriage of justice. See Bousley v.1 The district court also concluded that ineffective assistance of counsel did

not constitute cause for the procedural default of Hernandez’s first seven claims. -3- United States , 523 U.S. 614, 622 (1998). The district court the n concluded that federal review of Hernandez’s ineffective assistanc e 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 determi ned that they lacked merit. 1 This court cannot grant Hernandez a COA unless he c an demonstrate “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 Hernandez has carried his burden, this court undert akes “a preliminary, though not definitive, consideration of the [legal] framew ork” 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 succee d to be entitled to a COA. He must, however, “prove something more than the absen ce of frivolity or the existence of mere good faith.” Id. (quotations omitted). This court has reviewed Hernandez’s application fora COA and appellate brief, the district court’s order, and the entire r ecord on appeal pursuant to the framework set out by the Supreme Court inMiller-Eland concludes that-4-

Hernandez is not entitled to a COA. The district c ourt’s resolution of Hernandez’s claims is not reasonably subject to deb ate and the claims are not adequate to deserve further proceedings. According ly, Hernandez has not “made a substantial showing of the denial of a constituti onal 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