Smith v. Wilson

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 28, 2011
• Docket: 11-8023
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit

October 28, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

AARON EUGENE SMITH,

Petitioner–Appellant, No. 11-8023 v. (D.C. No. 2:09-CV-00257-ABJ) EDDIE WILSON, Wyoming (D. Wyo.) Department of Corrections State Penitentiary Warden; GREGORY A. PHILLIPS, Wyoming Attorney General,

Respondents–Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.

Petitioner seeks a certificate of appealability to appeal the district court’s

denial of his § 2254 habeas petition. After a jury found him guilty of first degree

murder and other weapons charges, Petitioner filed a motion for a new trial based

on newly discovered evidence of alleged juror bias. The state district court

denied his motion, and the Wyoming Supreme Court affirmed. See Smith v. State,

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 190 P.3d 522 (Wyo. 2008).

To appeal the denial of his habeas petition, Petitioner must obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1). In denying Petitioner’s

habeas petition, the district court concluded that the Wyoming Supreme Court did

not unreasonably apply the law, nor did Petitioner provide clear and convincing

evidence that the state court’s factual decisions were clearly erroneous. We agree

with the district court, and have nothing to add to that court’s thorough analysis.

After carefully reviewing Petitioner’s brief and the record on appeal, we

conclude that reasonable jurists would not debate whether the district court erred

in dismissing the petition. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We

therefore DENY the application for a certificate of appealability and DISMISS

the appeal.

ENTERED FOR THE COURT

Monroe G. McKay Circuit Judge

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