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

### OCT 19 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
ROBERT CRISWELL,

Petitioner-Appellant, No. 04-1128
v. (D. Colorado) GARY WATKINS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees. (D.C. No. 02-MK-1893-(CBS))

ORDER
Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. Robert Criswell, a Colorado state prisoner proceedi ng pro se, seeks a certificate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition for habeas corpus. Mr. Criswell also seek s to proceed in forma pauperis (“IFP”). We deny his request for a COA, deny his r equest to proceed IFP and dismiss this appeal.

I. BACKGROUND Mr. Criswell pleaded guilty in March 1993 to one co unt of second-degree murder and was sentenced to forty-eight years’ impr isonment. Though the-2-

petitioner did not directly appeal his judgment of conviction, he filed several motions from 1996 to 2002 for post-conviction relie f in state court; all were denied. In October 2002, Mr. Criswell filed his § 2254 peti tion in federal district court and asserted four claims for relief. In Clai m One, he alleged ineffective assistance of counsel, in violation of his Sixth Am endment rights, because his counsel did not interview the chief medical examine r who performed the victim’s autopsy. Mr. Criswell alleged in Claims Two and Th ree that his conviction and sentence violated his due process rights because he was not separately charged with a “crime of violence” and did not plead guilty to a “crime of violence,” in violation of his Fifth, Sixth and Fourteenth Amendm ent rights. The petitioner asserted in Claim Four that his conviction violatedhis Sixth Amendment right to effective counsel because his counsel was not aware of the “crime of violence” sentence enhancement. The magistrate judge concluded in May 2003 that Mr. Criswell had not exhausted Claim Four and recommended that all claim s be dismissed. The district court adopted the magistrate judge’s recommendationin part, dismissing Claims Two, Three and Four. The district court, however, rejected the recommendation in part and remanded to the magistrate judge to mak e factual findings about Claim One under 28 U.S.C. § 2254(d)(2). After additional review, the magistrate judge-3-

recommended dismissal of Claim One, and the distric t court adopted the supplemental recommendation in March 2004. Mr. Cri swell now seeks a COA so he may appeal the district court’s ruling on the fi rst three claims.

II. DISCUSSION We may issue a COA and entertain Mr. Criswell’s app eal only if he “has made a substantial showing of the denial of a const itutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial showing, Mr. Cri swell “must show 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.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (internal quotation mark s omitted). Colorado state courts have already adjudicated Mr. Criswell’s habeas claims on the merits. We may therefore grant habea s relief only where a state court decision was “contrary to, or involved an unr easonable application of, clearly established Federal law, as determined by the Supreme Court” or was “based on an unreasonable determination of the fact s in light of the evidence presented in the State court proceeding.” 28 U.S.C . § 2254(d). Furthermore, “a determination of a factual issue made by a State co urt shall be presumed to be correct. The applicant shall have the burden of re butting the presumption of-4-

correctness by clear and convincing evidence.” Id. § 2254(e)(1). We have also recently held that this “deferential treatment of s tate court decisions must be incorporated into our consideration of a habeas pet itioner’s request for COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004). Applying this deferential standard, we have reviewe d the magistrate judge’s recommendation and supplemental recommendation, the two district court orders, the petitioner’s brief and the entire record on app eal. For substantially the same reasons set out in the magistrate judge’s thorough recommendation and supplemental recommendation, and the district court ’s orders addressing objections to the recommendations, we conclude thatMr. Criswell has not made a “substantial showing of the denial of a constitutio nal right” under 28 U.S.C. § 2253(c)(2). Colorado courts reasonably applied Sixth Amendment law to Claim One when ruling that counsel’s failure to interviewthe medical examiner did not constitute ineffective assistance of counsel. Conc erning Claims Two and Three, the petitioner admitted the elements of a “crime of violence” by pleading to second-degree murder, and no separate charge was re quired to support the sentence enhancement. See Colo. Rev. Stat. § 16-11-309(2)(a)(II)(B) (relocat ed to § 18-1.3-406(2)(a)(II)(B)).-5-

We therefore DENY Mr. Criswell’s application for a COA. We also DENY his motion to proceed IFP and DISMISS the appeal.
Entered for the Court,
Robert H. Henry Circuit Judge