Baxter v. Jones , 517 F. App'x 621 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 28, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
EMMANUEL BAXTER,
Petitioner - Appellant,
No. 12-5187
v. (D.C. No. 4:09-CV-00431-TCK-TLW)
(N.D. Okla.)
JUSTIN JONES, Director,
Respondent - Appellee.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Emmanuel Baxter’s pro se request for a
certificate of appealability (“COA”). Baxter seeks a COA so he can appeal the
district court’s denial of his 28 U.S.C. § 2254 petition. 28 U.S.C.
§ 2253(c)(1)(A). Because Baxter has not “made a substantial showing of the
denial of a constitutional right,” id. § 2253(c)(2), this court denies his request for
a COA and dismisses this appeal.
A jury convicted Baxter in Oklahoma state court on a charge of Shooting
with Intent to Kill. The jury further concluded Baxter had committed the crime
after previously being convicted of two or more felonies. Pursuant to the jury’s
recommendation, the state trial court sentenced Baxter to life imprisonment.
Baxter’s conviction was affirmed on direct appeal to the Oklahoma Court of
Criminal Appeals (“OCCA”). Baxter v. State, No. F-2006-686, slip. op. at 3
(Okla. Crim. App. Jan. 9, 2008). The OCCA affirmed the denial of Baxter’s state
petition for post-conviction relief. Baxter v. State, No. PC-2008-677, slip. op. at
3 (Okla. Crim. App. Oct. 22, 2008). Baxter then filed the instant § 2254 petition
in federal district court, raising six grounds for relief. In a comprehensive order,
the district court analyzed each claim set out in Baxter’s § 2254 petition and
concluded Baxter was not entitled to habeas relief.
The granting of a COA is a jurisdictional prerequisite to Baxter’s appeal
from the dismissal 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, Baxter 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). In evaluating
whether he has satisfied his burden, this court undertakes “a preliminary, though
not definitive, consideration of the [legal] framework” applicable to each of his
claims. Id. at 338. Although Baxter need not demonstrate his appeal will succeed
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to be entitled to a COA, he must “prove something more than the absence of
frivolity or the existence of mere good faith.” Id.
Having undertaken a review of Baxter’s appellate filings, the district
court’s comprehensive order, and the entire record before this court, we conclude
Baxter is not entitled to a COA. In so concluding, this court has nothing to add to
the district court’s comprehensive order. Accordingly, this court DENIES
Baxter’s request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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