No. 1:16-CV-03048-PAB (D. Colo.)
LUCERO, HARTZ, and McHUGH, Circuit Judges.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
L HARTZ, CIRCUIT JUDGE
Jones, an inmate in the custody of the Colorado Department of
Corrections, requests a certificate of appealability (COA) to
challenge the denial by the United States District Court for
the District of Colorado of his application for relief under
28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A) (requiring a COA for a prisoner in state
custody to appeal from the denial of a writ of habeas
corpus). Because Mr. Jones has failed to make a substantial
showing of the denial of a constitutional right as required
by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the
Background and Standard of Review
Mr. Jones was convicted of first-degree sexual assault and
possession with intent to distribute a controlled substance,
and he was adjudicated a habitual criminal. He is serving
sentences of 64 years for the sexual assault and 96 years for
the controlled-substance conviction. Mr. Jones contends that
he and the victim had consensual sex and that he did not
intend to distribute a controlled substance.
the Colorado Court of Appeals (CCA) denied relief on direct
appeal, and the Colorado Supreme Court denied review. Mr.
Jones then sought postconviction relief under Colorado Rule
of Criminal Procedure 35(c), alleging several violations of
his constitutional rights, including ineffective assistance
of counsel. The trial court denied relief, but in 2003 the
CCA remanded the case for an evidentiary hearing on claims of
ineffective assistance relating to counsel's handling of
bite-mark evidence, the victim's juvenile conviction, and
the victim's alleged gang affiliation. In 2006 the trial
court held an evidentiary hearing on these claims, and then
in 2012 it reconvened and completed the hearing before
denying relief. The CCA affirmed and the Colorado Supreme
Court denied review.
December 2016 Mr. Jones applied for relief under 28 U.S.C.
§ 2254. The district court held that he was not entitled
to relief on any claim and denied Mr. Jones's motions for
additional discovery, an evidentiary hearing, and appointment
court Mr. Jones presents a claim of vindictive prosecution
and four claims of ineffective assistance of counsel: (1)
failing to investigate and present evidence of the
victim's gang affiliation; (2) failing to investigate and
present evidence of the victim's pending juvenile
adjudication; (3) failing to have bite-mark evidence tested
by a defense expert; and (4) representing Mr. Jones despite a
conflict of interest.
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This standard requires "a
demonstration that . . . includes showing that 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) (internal quotation
marks omitted). In other words, the applicant must show that
the district court's resolution of the constitutional
claim was either "debatable or wrong." Id.
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
provides that when a claim has been adjudicated on the merits
in a state court, a federal court can grant habeas relief
only if the applicant establishes that the state-court
decision was "contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States,"
or "was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d)(1), (2). As we
Under the "contrary to" clause, we grant relief
only if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if
the state court decides a case differently than the Court has
on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.
2004) (brackets and internal quotation marks omitted). Relief
is provided under the "unreasonable application"
clause "only if the state court identifies the correct
governing legal principle from the Supreme Court's
decisions but unreasonably applies that principle to the
facts of the prisoner's case." Id.
(brackets and internal quotation marks omitted). Thus, a
federal court may not grant relief simply because it
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly. See id. at 1196. Rather,
"[i]n order for a state court's decision to be an
unreasonable application of this Court's case law, the
ruling must be objectively unreasonable, not merely wrong;
even clear error will not suffice." Virginia v.
LeBlanc, 137 S.Ct. 1726, 1728 (2017) (per curiam)
(internal quotation marks omitted). To prevail, "a
litigant must show that the state court's ruling was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement." Id.
(internal quotation marks omitted).
addition, AEDPA establishes a deferential standard of review
for state-court factual findings, mandating "that state
court factual findings are presumptively correct and may be
rebutted only by 'clear and convincing
evidence.'" Saiz v. Ortiz, 392 F.3d 1166,
1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)).
Further, the Supreme Court has held that review under §
2254(d)(1), just as review under § 2254(d)(2), "is
limited to the record that was before the state court that
adjudicated the claim on the merits." Cullen v.
Pinholster, 563 U.S. 170, 181 (2011); see id.
at 185 n. 7. "AEDPA's deferential treatment of state