FILED

United States Court of Appeals

Tenth Circuit

February 25, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN VELASQUEZ,

Petitioner - Appellant,

v.

WARDEN FAULK, L.C.F.;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

No. 14-1087

(D.C. No. 1:12-CV-02057-WYD)

(D. Colorado)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before GORSUCH, MURPHY, and McHUGH, Circuit Judges. 

This matter is before the court on Juan Velasquez’s pro se requests for a

certificate of appealability (“COA”) and for permission to proceed on appeal in

forma pauperis. Velasquez seeks a COA so he can appeal the district court’s

denial of his 28 U.S.C. § 2254 petition. See 28 U.S.C. § 2253(c)(1)(A) (providing

no appeal may be taken from a final order denying a § 2254 petition unless the

petitioner first obtains a COA). Because Velasquez has not “made a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), this court

denies his request for a COA and dismisses this appeal. We do, however, grant

his motion for leave to proceed on appeal in forma pauperis.

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Following a jury trial in Colorado state court, Velasquez was convicted of

attempted first degree murder and first degree assault. The trial court concluded

Velasquez was a habitual criminal and sentenced him to concurrent ninety-sixyear terms of imprisonment. After exhausting his state court remedies without

obtaining any relief, Velasquez filed the instant § 2254 habeas petition raising

eight claims.1

 In two exceedingly comprehensive orders, the district court

concluded the claims set out in Velasquez’s habeas petition were either

procedurally barred or without merit.

The granting of a COA is a jurisdictional prerequisite to Velasquez’s appeal

from the denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Velasquez must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, he must demonstrate “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.” Miller-El, 537 U.S. at 336 (quotations

omitted). When a district court dismisses a § 2254 claim on procedural grounds,

a petitioner is entitled to a COA only if he shows both that reasonable jurists

would find it debatable whether he had stated a valid constitutional claim and

1

Velasquez’s claim 7, a claim of ineffective assistance of trial counsel, set

out five subclaims.

-2-

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debatable whether the district court’s procedural ruling was correct. Slack v.

McDaniel, 529 U.S. 473, 484-85 (2000). In evaluating whether Velasquez has

satisfied his burden, this court undertakes “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of his claims. MillerEl, 537 U.S. at 338. Although Velasquez 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. (quotations omitted)

Having undertaken a review of Velasquez’s appellate filings, the district

court’s orders, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Velasquez is not entitled

to a COA. In so ruling, this court has nothing to add to the district court’s

thorough analysis, as set out in its orders dated February 1, 2013, and February 5,

2014. Accordingly, this court DENIES Velasquez’s request for a COA and

DISMISSES this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

-3-

Appellate Case: 14-1087 Document: 01019390269 Date Filed: 02/25/2015 Page: 3