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Jones v. Archuleta

United States Court of Appeals, Tenth Circuit

December 17, 2018

BERNARD JONES, Petitioner - Appellant,
v.
LOU ARCHULETA, Warden; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees.

          D.C. No. 1:16-CV-03048-PAB (D. Colo.)

          Before LUCERO, HARTZ, and McHUGH, Circuit Judges.

          ORDER DENYING A CERTIFICATE OF APPEALABILITY

          HARRIS L HARTZ, CIRCUIT JUDGE

         Bernard 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 appeal.

         I. Background and Standard of Review

         In 1997 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.

         In 2000 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.

         In 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 of counsel.

         In this 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.

         A COA 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.

         The 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 have explained:

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).

         In 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 court ...


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