This order is not binding precedent, except under the doctrines of law of *

the case, res judicata, and collateral estoppel. 

We liberally construe Mr. Grady’s pro se application. See Cummings v. 1

Evans, 161 F.3d 610, 613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).

The district court denied Mr. Grady’s request for a COA and motion to 2

proceed in forma pauperis (ifp).

F I LED

United States Court of Appeals

Tenth Circuit

January 2, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GARY A. GRADY,

Petitioner-Appellant,

v.

AL ESTEP, Warden, L.C.F.;

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents-Appellees.

No. 06-1106

(D.C. No. 05-cv-2563-ZLW)

(Colorado)

ORDER*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Gary A. Grady, a state prisoner appearing pro se, seeks a certificate of 1

appealability (COA) to challenge the district court’s denial of his petition for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. We see no basis for granting a 2
-2-

COA and deny Mr. Grady’s application.

In 2002, Mr. Grady pled guilty and was convicted of aggravated motor

vehicle theft in Colorado’s Jefferson County District Court. The court sentenced

him to twenty-four years imprisonment and five years of mandatory parole. Mr.

Grady subsequently filed for and was denied postconviction relief in state court. 

The Colorado Court of Appeals affirmed this decision and the Colorado Supreme

Court denied certiorari. Mr. Grady then filed this 28 U.S.C. § 2254 petition,

which the district court denied. He seeks a COA, asserting (a) the enhancement

of his sentence based on prior convictions not incorporated into his plea

agreement violated constitutional due process and jury trial guarantees, and (b)

his counsel was ineffective for failing to object to the use of prior convictions in

enhancing his sentence after those convictions were omitted from the plea

agreement. 

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a state

habeas petitioner “has no absolute entitlement to appeal a district court’s denial of

his petition. 28 U.S.C. § 2253.” Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). 

Before he may appeal, he first must obtain a COA to provide the court of appeals

jurisdiction. See id. at 336. A COA will issue only if petitioner makes “a

substantial showing of the denial of a constitutional right.” Slack v. McDaniel,

529 U.S. 473, 483 (2000) To do so, petitioner must show “that reasonable jurists

could debate whether . . . the petition should have been resolved in a different
-3-

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Id. (citations and internal quotation marks omitted). 

In determining whether the petitioner has made the required showing, we

review the claims presented in his § 2254 petition and generally assess their

merit. See Miller-El, 537 U.S. at 336. In doing so, we “look to the District

Court’s application of AEDPA to petitioner’s constitutional claims and ask

whether that resolution was debatable amongst jurists of reason.” Id. Where, as

here, petitioner’s federal habeas claims were adjudicated on the merits in state

court, we will grant an application for a COA “only where the state court decision

was ‘contrary to, or involved an unreasonable application of , clearly established

Federal law, as determined by the Supreme Court . . .’ or was ‘based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.’ 28 U.S.C. § 2254(d).” Dockins v. Hines, 374 F.3d 935,

936-37 (10th Cir. 2004). 

As the district court noted, the Supreme Court held in Apprendi v. New

Jersey, 530 U.S. 466 (2000), that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 

Id. at 490 (emphasis added). The state sentencing court’s enhancement of Mr.

Grady’s sentence based upon his prior convictions was constitutionally

permissible under Apprendi. That enhancement pertained to the sentence for the
-4-

offense to which Mr. Grady pled guilty; it was not a sentence for the prior

convictions, nor was it a sentence under the state statute for being an habitual

offender. While the plea agreement obligated the state not to charge and convict

Mr. Grady of being an habitual offender, it did not obligate the court to ignore

prior convictions as an aggregating factor when it sentenced Mr. Grady for

aggravated motor vehicle theft. Mr. Grady’s ineffectiveness claim is similarly

flawed because it is predicated on his attorney’s failure to object on the same

ground. Consequently, the district court’s resolution of Mr. Grady’s claims is not

debatable among jurists of reason.

Turning to Mr. Grady’s request for ifp status, we conclude he has failed to

show “the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” McIntosh v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997).

For the aforementioned reasons, we DENY Mr. Grady’s motion to proceed

ifp, DENY his application for a COA, and DISMISS this appeal.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge