Porth v. Ferguson

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 24, 1999
• Docket: 98-8090
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 24 1999

TENTH CIRCUIT PATRICK FISHER Clerk

KEVIN CHARLES PORTH,

Petitioner-Appellant,

v.

JAMES FERGUSON, Warden, No. 98-8090 Wyoming Department of Corrections (D.C. No. 97-CV-36) State Penitentiary; E. K. MCDANIEL, (Wyoming) Warden, Nevada Department of Corrections State Penitentiary; ATTORNEY GENERAL OF THE STATE OF WYOMING,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

Mr. Porth appeals the denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254. He also moves for a certificate of appealability. We

deny his motion and dismiss the appeal.

Mr. Porth was convicted of conspiracy to commit aggravated robbery and

sentenced to twenty-five years of incarceration. His conviction was affirmed on

appeal. See Porth v. State, 868 P.2d 236 (Wyo. 1994). His application for post-

conviction relief was denied as well. He filed this petition for a writ of habeas

corpus raising ten claims: 1) ineffective assistance of appellate counsel for failure

to raise ineffective assistance of trial counsel; 2) failure of the state courts to

provide him with assistance of counsel in his petition for post-conviction relief;

3) failure of state trial court to grant him an evidentiary hearing on his petition for

post-conviction relief; 4) ineffective assistance of appellate counsel for failure to

challenge the trial court’s refusal to remove leg irons; 5) trial court error in

refusing to admit a co-conspirator’s hearsay statement; 6) trial court error in

refusing to grant defense witness immunity; 7) trial court error in permitting the

co-conspirator to invoke his Fifth Amendment privilege in the presence of the

jury; 8) trial court error in allowing defense witness to testify over the

prosecutor’s objection; 9) trial court error in admitting evidence seized without

-2- probable cause; and 10) insufficient evidence to support the verdict. In a

thorough order, the district court rejected Mr. Porth’s claims on the merits and

denied his petition.

Pursuant to 28 U.S.C. § 2253 (c)(1), a circuit judge must issue a certificate

of appealability before a state prisoner may appeal the denial of a habeas corpus

petition. A certificate of appealability “may issue . . . only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253 (c)(2); United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997).

After careful review of Mr. Porth’s application for a certificate of appealability,

his brief, the district court’s order and the entire record before us, we conclude

that Mr. Porth’s claims are meritless substantially for the reasons set forth in the

district court’s order denying the petition. Since Mr. Porth has not made a

substantial showing of the denial of a constitutional right, we deny his request for

a certificate of appealability and dismiss the appeal.

APPLICATION DENIED; APPEAL DISMISSED.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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