Chase v. Lind

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS January 19, 2016 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

JERRY L. CHASE,

Petitioner - Appellant,

v. No. 15-1304 (D.C. No. 1:14-CV-01650-MJW) RANDY LIND, Warden, Arkansas (D. Colo.) Valley Correctional Facility; CYNTHIA H. COFFMAN, Attorney General, State of Colorado,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.

Proceeding pro se, Jerry L. Chase seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Chase 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. Id. § 2253(c)(2).  A Colorado jury convicted Chase of three counts of felony stalking. He

was sentenced to three consecutive four-year terms of imprisonment. The

Colorado Court of Appeals affirmed Chase’s convictions and sentence. The

Colorado Supreme Court denied Chase’s petition for a writ of certiorari.

Chase filed the instant § 2254 habeas petition on June 12, 2014, raising

four claims of error. The district court 1 addressed the claims in two separate

orders. In the first order, the court dismissed Chase’s claims relating to his

allegation the trial court failed to respond directly to a jury question. The court

concluded those claims were procedurally defaulted and Chase failed to show

cause for the default and actual prejudice or, alternatively, demonstrate that the

failure to review his claims would result in a fundamental miscarriage of justice.

See Coleman v. Thompson, 501 U.S. 722, 750 (1991); English v. Cody, 146 F.3d

1257, 1259 (10th Cir. 1998). Based on Chase’s stipulation, the district court also

dismissed Chase’s equal protection claim relating to his as-applied challenge to

the Colorado statute criminalizing stalking.

In a separate order, the district court addressed Chase’s remaining claims:

(1) a due process challenge to the sufficiency of the evidence, (2) a due process

challenge to the subject matter jurisdiction of the trial court, and (3) a First

Amendment challenge to the Colorado stalking statute. Applying the standard set

1 The parties consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c).

-2- forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), the

district court denied Chase relief on these claims. It concluded Chase failed to

demonstrate the Colorado court’s adjudication of the claims was contrary to, or an

unreasonable application of, clearly established federal law, or resulted in a

decision based on an unreasonable determination of the facts in light of the

evidence. 28 U.S.C. § 2254(d).

Chase does not seek a COA on the claims dismissed in the district court’s

first order, dated May 8, 2015. As to the claims addressed on the merits by the

district court in its July 23, 2015 order, this court cannot grant Chase a COA

unless he can 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). In

evaluating whether Chase has carried his burden, this court undertakes “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

Chase is not required to demonstrate that his appeal will succeed to be entitled to

a COA. He must, however, “prove something more than the absence of frivolity

or the existence of mere good faith.” Id. (quotations omitted).

This court has reviewed Chase’s application for a COA and appellate brief,

the district court’s orders, and the entire record on appeal pursuant to the

-3- framework set out by the Supreme Court in Miller-El. That review clearly

demonstrates the district court’s resolution of the three claims on which Chase

seeks a COA is not reasonably subject to debate and the claims are not adequate

to deserve further proceedings.

Because Chase has not “made a substantial showing of the denial of a

constitutional right,” he is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

Accordingly, this court denies Chase’s request for a COA and dismisses this

appeal.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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