FILED

United States Court of Appeals

Tenth Circuit

March 2, 2015

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID B. HOECK,

Petitioner - Appellant,

v.

RAE TIMME, Warden; THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

No. 14-1229

(D.C. No. 1:13-CV-02575-WJM)

(D. Colorado)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before GORSUCH, MURPHY, and HOLMES, Circuit Judges. 

This matter is before the court on David Hoeck’s pro se requests for a

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

forma pauperis. Hoeck 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 Hoeck 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. Nevertheless, we grant

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

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

possession of cocaine with intent to distribute. The trial court sentenced Hoeck to

an eighteen-year term of imprisonment. After exhausting his state court remedies

without obtaining any relief, Hoeck filed the instant § 2254 habeas petition

raising eighteen claims, one of which contained multiple subclaims. In two

exceedingly comprehensive orders, the district court concluded the claims set out

in Hoeck’s habeas petition either failed to present federal issues, were

procedurally barred, or were without merit.

The granting of a COA is a jurisdictional prerequisite to Hoeck’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, he must make “a substantial showing of the

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

showing, Hoeck 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 debatable

whether the district court’s procedural ruling was correct. Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). In evaluating whether Hoeck has satisfied his burden,

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this court undertakes “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each of his claims. Miller-El, 537 U.S. at 338. 

Although Hoeck 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 Hoeck’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 Hoeck 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 3, 2014, and April 21, 2014. 

Accordingly, this court DENIES Hoeck’s request for a COA and DISMISSES

this appeal.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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