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

                                   TENTH CIRCUIT                         September 13, 2011

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff–Appellee,
                                                               No. 11-2058
 v.                                              (D.C. Nos. 1:10-CV-00314-JEC-WPL &
                                                         1:85-CR-00034-JEC-1)
 DANIEL CHALAN, JR.,                                            (D. N.M.)
           Defendant–Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.



       Daniel Chalan Jr. seeks a certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2255 habeas petition. We deny a COA and dismiss.

                                             I

       On January 28, 1985, an Allsup’s convenience store located within the Cochiti

Pueblo was robbed. Inside the store, police discovered the body of the assistant store

manager, who had been shot multiple times and repeatedly bludgeoned. Several bullet


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
fragments and spent casings were recovered from the scene.

       The day after the murder, police and FBI agents learned that Chalan, his brother,

and two cousins had been seen near the crime scene wielding rifles. Authorities

subsequently interviewed Chalan, who initially denied that he was involved in the crime.

The following day, however, he confessed to committing the murder. His detailed

confession largely matched the physical evidence discovered at the crime scene. Chalan

also directed police to pieces of a rifle hidden nearby which contained hair consistent

with the victim’s, and to a key that fit the Allsup’s cash register.

       Chalan was charged in federal court with first-degree murder, robbery, and two

counts of using a firearm during a felony. The prosecution called more than twenty

witnesses during a four-day trial. One of these witnesses, FBI Special Agent Earnest

Peele, testified about the composition of the bullet fragments found at the crime scene.

Using a technique known as comparative bullet lead analysis (“CBLA”), Peele concluded

that the fragments found at the crime scene fell into three groups. He testified that

fragments within each group were similar enough in composition that they likely came

from the same box of bullets or from boxes of bullets manufactured around the same

time. Peele could not opine as to whether bullet fragments across groups came from the

same box.

       A jury convicted Chalan on all counts. On direct appeal, we vacated one of

Chalan’s firearm convictions and remanded for an evidentiary hearing on the


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government’s use of peremptory strikes. United States v. Chalan, 812 F.2d 1302, 1317

(10th Cir. 1987). The district court ultimately upheld Chalan’s remaining three

convictions.

       More than twenty years later, Chalan received a letter from the U.S. Attorney’s

Office stating that the FBI had ceased using the CBLA technique and noting that Agent

Peele’s trial testimony may have been misleading. Based on this new information,

Chalan filed a § 2255 petition claiming that the admission of Peele’s testimony violated

his right to due process. The district court held that Chalan had procedurally defaulted

his claim by failing to raise it on direct appeal. Although it concluded that Chalan

established cause because the factual predicate of his claim was unavailable at the time of

his direct appeal, the court held that Chalan failed to demonstrate prejudice.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2255 without a

COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA only if Chalan can show “that

jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

       As a general rule, “claims not raised on direct appeal may not be raised on

collateral review unless the petitioner shows cause and prejudice.” Massaro v. United



                                            -3-
States, 538 U.S. 500, 504 (2003) (citation omitted). To show cause for a procedural

default, a petitioner must demonstrate that “some objective factor external to the defense

impeded counsel’s efforts to comply with the . . . procedural rule.” Murray v. Carrier,

477 U.S. 478, 488 (1986). Establishing prejudice requires a petitioner to demonstrate

that the claimed constitutional violation “worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.” United

States v. Frady, 456 U.S. 152, 170 (1982).

       The Supreme Court has indicated that a petitioner can establish cause by showing

that “the factual or legal basis for a claim was not reasonably available” at the time of

direct appeal. Murray, 477 U.S. at 488 (citation omitted). In the § 2254 context, we have

applied the cause and prejudice test to a claim asserted under Brady v. Maryland, 373

U.S. 83 (1963), in which the facts underlying the claim could not have been discovered

until after a conviction became final. See Scott v. Mullin, 303 F.3d 1222, 1227-30 (10th

Cir. 2002); see also United States v. Angelos, 417 F.App’x 786, 801 (10th Cir. 2011)

(unpublished) (“The appropriate remedy available to a defendant who discovers evidence

of prosecutorial misconduct or vindictiveness after completion of his direct appeal is to

use that evidence as cause to excuse his procedural default.”).

       Nevertheless, Chalan argues that he did not procedurally default because he could

not have discovered the deficiencies of the CBLA evidence at the time of his direct

appeal. He cites to Bousley v. United States, 523 U.S. 614 (1998), in which the Court


                                             -4-
recognized “an exception to the procedural default rule for claims that could not be

presented [on direct appeal] without further factual development.” Id. at 621. Chalan

maintains that his claim required further factual development because the letter he

received from the U.S. Attorney’s office was not—and could not have been—part of the

record on direct appeal. On this basis, he asserts that the exception to the procedural

default rule applies and he should not be obligated to show cause or prejudice.

       Our circuit has not explicitly considered the interaction between Murray and

Bousley. The former holds that a petitioner can show cause when the “the factual . . .

basis for a claim was not reasonably available” at the time of direct appeal. Murray, 477

U.S. at 488 (citation omitted). This statement suggests the cause and prejudice inquiry

applies to such claims. But if the factual predicate for a claim is not available, it would

appear to qualify under Bousley as a “claim[] that could not be presented without further

factual development.” 523 U.S. at 621.1

       We need not decide whether Chalan’s claim fits within the exception identified in

Bousley. To obtain a COA, Chalan must establish not only that the district court’s

       1
         One could read Bousley as limited to situations in which a petitioner was aware
of his claim at the time of direct appeal but lacked a sufficient record to present it. See
523 U.S. at 621 (exception can be applied when facts underlying claim were “dehors the
record and their effect on the judgment was not open to consideration and review on
appeal” (quoting Waley v. Johnston, 316 U.S. 101, 104 (1942) (per curiam))). However,
it would be a curious result to treat as procedurally defaulted claims that could not have
been raised because the factual predicate for the claim was unavailable, but exempt from
procedural default claims that could not have been raised simply because the trial record
was insufficient.


                                            -5-
procedural ruling was debatable, but also that the merit of his claim is subject to

reasonable debate. See Slack, 529 U.S. at 484. And to prevail on a § 2255 claim that the

admission of objectionable evidence violated a petitioner’s due process rights, the

petitioner must show that “the error had substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); see

also United States v. Dago, 441 F.3d 1238, 1245-46 (10th Cir. 2006) (Brecht standard

applies to trial type constitutional errors in § 2255 proceedings). Accordingly, Chalan

must show some form of prejudice regardless of the application of the procedural bar.

This he cannot do.

       Assuming that the admission of CBLA testimony was error,2 we agree with the

district court that the error did not influence the jury’s verdict. The CBLA evidence

presented at trial merely implied that some bullet fragments found at the crime scene

likely came from the same box of bullets. But Peele did not claim that all of the bullet

fragments came from the same source. Accordingly, Peele’s testimony did not

undermine Chalan’s argument that other individuals must have been involved in the

crime.3 Nor did Peele tie the fragments to Chalan in any way. Even if jurors accepted


       2
        For a discussion of the problems with CBLA analysis, see United States v. Berry,
624 F.3d 1031, 1035 n.3, 1037 (9th Cir. 2010).
       3
        Another witness testified that although some bullet casings found at the scene
matched others, the variety of casings found throughout the store suggest that more than
one gun was involved.


                                            -6-
Peele’s testimony, it was at worst a cursory supplement to the other evidence offered at

trial. Chalan confessed to the murder and relayed knowledge about details of the crime

scene. He also directed police to a weapon that contained hairs consistent with the

victim’s and to a key which was taken from the store. In light of this unequivocal

evidence, the CBLA testimony had no apparent impact on Chalan’s convictions, and thus

he suffered no actual prejudice.

                                           III

       Because Chalan has not shown that his claim is debatable on the merits, we

DENY a COA and DISMISS the appeal.



                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




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