* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### NOV 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
GILBERT J. GONZALES,

Petitioner - Appellant, No. 01-1253
v. (D. Colorado) ROBERT FURLONG; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. (D.C. No. 00-D-846)

ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

This case is before the court on Gilbert Gonzales’ request for a certificate of appealability (“COA”). Gonzales seeks a COA so that he can appeal the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 habeas petition unless the petitioner firs t obtains a COA). Because Gonzales has not “made a substantial showing of the denial of a constitutional right,” this court denies his request for a COA and dismisses this appeal. See id. § 2253(c)(2). Gonzales was arrested in 1995 and charged with firs t degree murder and illegal discharge of a firearm; he was fourteen yea rs old at the time. On the date he was scheduled to go to trial on the charges, Gon zales was offered and accepted a plea bargain. Pursuant to the plea agreement, Go nzales pleaded guilty to one count of second degree murder with a stipulated sentence of between thirty and forty-eight years. Gonzales was sentenced to a term of thirty-four years in the custody of the Colorado Department of Corrections and five years of mandatory parole. Although Gonzales did not file a direct appeal, he did file a post-conviction motion in state court in 1996 challenging the valid ity of his guilty plea. He asserted that his counsel was constitutionally inef fective and that the guilty plea was obtained in violation of his right to due proce ss. The state district court-3-

denied relief. The Colorado Court of Appeals affirmed the denial of relief as to the due process claims but remanded for an evidenti ary hearing on the claims of ineffective assistance. Gonzales did not seek revi ew by the Colorado Supreme Court of the dismissal of his due process claims. In 1998, after holding an evidentiary hearing, the state district court again denied Gonzales relief on his claims of ineffective assistance of counsel. Afterthe Colorado Court of Appeals affirmed the district court’s denial of relief on t he ineffective assistance claims, the Colorado Supreme Court denied Gonzales’ petitio n for a writ of certiorari. Gonzales then filed the instant 28 U.S.C. § 2254 habeas petition, raising the same claims he had asserted in state court. The di strict court concluded that Gonzales had not exhausted his due process claims b ecause he did not seek discretionary review by the Colorado Supreme Court of the decision of the Colorado Court of Appeals affirming the dismissal of those claims. See O’Sullivan v. Boerckel , 526 U.S. 838, 847-48 (1999). The district court further concluded that the due process claims were now proc edurally defaulted because Gonzales was not entitled under Colorado law to fil e a second post-conviction motion in order exhaust the claims. See People v. Hubbard , 519 P.2d 945, 947 (1974); see also Thomas v. Gibson , 218 F.3d 1213, 1221 (10th Cir. 2000) (“[I]f a petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion-4-

requirement would now find the claims procedurally barred, the claims are considered exhausted and procedurally defaulted forpurposes of federal habeas relief.” (quotation omitted)). The district court rejected as a matter of law Gonzales’ claim that his procedural default was exc used by ineffective assistance of counsel during state post-conviction proceedings, see Thomas , 218 F.3d at 1222, and concluded that Gonzales had not carried h is burden of demonstrating that the failure to consider his due process claims would result in a fundamental miscarriage of justice. In the alternative, the di strict court undertook a thorough analysis of each of Gonzales’ due process claims an d concluded that they also failed on the merits. The district court likewise concluded that the Colo rado Court of Appeals’ resolution of Gonzales’ ineffective assistance of c ounsel claims was neither “contrary to” nor “an unreasonable application of” clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). In so do ing, the district court noted that the state district court had considered on the merits each of Gonzales’ five claims of ineffective assistance after an evidentia ry hearing. The state court specifically found that Gonzales’ testimony at the evidentiary hearing was not credible. Accordingly, the state court concluded that Gonzales had not been coerced into pleading guilty and had been adequatel y informed about the consequences of his guilty plea. The Colorado Court of Appeals affirmed the-5-

state district court’s denial of relief, applying t he controlling analytical framework set forth by the Supreme Court in Strickland v. Washington , 466 U.S. 668 (1984). Upon review of the record, the distric t court concluded that the state court’s factual findings were supported by the reco rd and that the Colorado Court of Appeals’ resolution of Gonzales’ claims was a re asonable application of Strickland
. See 28 U.S.C. § 2254(d), (e). As noted above, Gonzales must obtain a COA before h e can appeal the district court’s denial of his § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A). Gonzales must make a “substantial showing of the denial of a constitutional right” before he is entitled to a COA. Id. § 2253(c)(2). He may make this showing by demonstrating the issues raise d are debatable among jurists, a court could resolve the issues differently, or th at the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Upon review of the relevant case law, Gonz ales’ appellate brief and application for a COA, the district court’s order, and the entire record on appeal, we conclude that the issues raised by Gonzales are not reasonably debatable, deserving of further proceedings, or subject to a d ifferent resolution on appeal.-6-

Accordingly, for substantially the reasons stated b y the district court in its thorough order filed April 24, 2001, this court denies Gonzales’ request for a COA and dismisses this appeal. Gonzales’ request to proceed in form a pauperis is granted
.

ENTERED FOR THE COURT Michael R. Murphy Circuit Judge