                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                            March 24, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JESSE BARAJAS,

      Petitioner - Appellant,

v.                                                          No. 15-1331
                                                   (D.C. No. 1:14-CV-01827-PAB)
FRANCIS FALK, Warden, L.C.F.; THE                             (D. Colo.)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, McKAY, and MORITZ, Circuit Judges.
                  _________________________________

      Jesse Barajas, a Colorado state prisoner proceeding pro se,1 seeks a certificate

of appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254

petition for habeas relief. He also seeks leave to proceed in forma pauperis (IFP). We

grant Barajas’ IFP motion but deny his request for a COA and dismiss this matter.

      A jury convicted Barajas of theft from an at-risk adult, robbery, and third-


      *
         This order is not binding precedent, except under the doctrines of law of the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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Because Barajas appears pro se, we liberally construe his combined brief and
COA application. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). But
we don’t assume the role of his advocate. Id.
degree assault based on his participation in a series of purse snatchings. The trial

court later adjudicated Barajas a habitual criminal under Colo. Rev. Stat. § 18-1.3-

801 and imposed a controlling sentence of 48 years’ imprisonment. The court ordered

Barajas to serve that sentence consecutively to his controlling sentence in another

case, resulting in a total prison term of 224 years.

      The Colorado Court of Appeals affirmed Barajas’ convictions and sentence on

direct appeal, and the Colorado Supreme Court denied certiorari. Barajas moved for

postconviction relief under Colo. R. Crim. P. 35(c), alleging ineffective assistance of

trial counsel. The state district court denied relief, the Colorado Court of Appeals

affirmed, and the Colorado Supreme Court denied certiorari. Barajas then filed his

§ 2254 federal habeas petition, which the district court denied. The district court did

not rule on a COA.

      Barajas now seeks to appeal the district court’s denial of his habeas petition.2

But first he must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA

only if Barajas makes “a substantial showing of the denial of a constitutional right.”

See id. § 2253(c)(2). This means Barajas must “show[] 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


      2
         Barajas filed an untimely notice of appeal from the district court’s judgment.
The district court ultimately entered an order reopening the time to appeal under Fed.
R. App. P. 4(a)(6), and granted Barajas’ motion to file the appeal out of time, curing
the jurisdictional defect.

                                            2
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation and internal quotation marks omitted).

      Barajas makes four arguments: (1) the State violated his Fourteenth

Amendment right to due process by failing to present sufficient evidence of his

complicity to support his robbery conviction, (2) the State violated his Fourteenth

Amendment right to due process by erroneously instructing the jury on the theory of

complicity, (3) trial counsel’s failure to object to the erroneous complicity instruction

violated his Sixth Amendment right to effective assistance of counsel, and (4) trial

counsel’s failure to request that a jury, rather than the judge, determine his status as a

habitual criminal violated his Sixth Amendment right to effective assistance of

counsel.

      The Colorado Court of Appeals rejected these claims on the merits. Thus, to

obtain federal habeas relief, Barajas must show that the CCA’s rejection of these

claims was contrary to, or involved an unreasonable application of, clearly

established federal law. 28 U.S.C. § 2254(d). In a thorough, well-reasoned order, the

district court addressed the CCA’s treatment of each of Barajas’ constitutional claims

and determined Barajas wasn’t entitled to habeas relief.

      We have reviewed Barajas’ arguments, the appellate record, the CCA’s

decision, the district court’s order denying habeas relief, and the applicable law.

Based on this review, we conclude Barajas hasn’t demonstrated that reasonable




                                            3
jurists would debate the correctness of the district court’s resolution of his petition.

Thus, we deny Barajas’ request for a COA and dismiss this matter.




                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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