                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                         UNITED STATES COURT OF APPEALS August 30, 2011
                                                                     Elisabeth A. Shumaker
                                    TENTH CIRCUIT
                                                                         Clerk of Court


 ZACHARY C. RHODES,

           Petitioner-Appellant,

 v.                                                          No. 11-1290
                                                    (D.C. No. 1:10-CV-00550-PAB)
 ANGEL MEDINA, Warden; THE                                     (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.


       Petitioner Zachary Rhodes, a state prisoner appearing pro se, seeks a Certificate of

Appealability (COA) pursuant to 28 U.S.C. § 2253 in order to challenge the district

court’s denial of his petition for a writ of habeas corpus. Because Rhodes has not made

the required showing for a COA to issue, his application for a COA is denied.

                                             I

       Rhodes was convicted of first degree burglary and menacing by a Colorado court.

One night in July 2001, Rhodes and another man were searching for Rhodes’s sister, who


       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
Rhodes believed had been using drugs and was hurt. Rhodes believed that Cecilia

Buchette, a friend of his sister, knew of her whereabouts. Buchette agreed to help Rhodes

look for his sister, and the group traveled to several different residences seeking

information. Rhodes also went to his home to get a gun. After several unsuccessful

searches, the group arrived at Michael Thomas’s apartment. Buchette knocked, Thomas

opened the door, and the group entered Thomas’s apartment. Rhodes testified that, at

some point, Thomas told Rhodes that “he didn’t give a f**** where he seen [Rhodes’s

sister], or a f**** where she at.” Trial Tr. at 412-13. Rhodes responded by pulling the

gun out of his waistband, pointing it at Thomas, and asking “now do anybody give a

f**** about where my sister at?” Id. at 413. Rhodes testified that Thomas said “get the

f**** out of my house.” Id. at 420. Rhodes testified that Buchette then lunged for his

gun, the two wrestled for it, and the gun went off while they were struggling. Buchette

provided a very different version of events. She testified that, when they arrived at

Thomas’s apartment, Rhodes became angry at her and accused her of withholding

information about his sister. She stated that Rhodes kicked her, hit her in the head with

the butt of the gun and then tried several times to shoot her, but the gun misfired.

Buchette also testified that, after determining the gun was unreliable, Rhodes stated that

he would “knife that b**** to death.” Buchette ran out of the apartment when Rhodes

went to the kitchen to get a knife.

       Rhodes was charged with attempted first degree murder, second degree kidnaping,

first degree burglary, second degree assault, illegal discharge of a firearm, and menacing.

                                              2
The jury found Rhodes guilty of burglary and menacing, and not guilty of all other

charges. After conviction, the trial judge adjudged Rhodes guilty of four habitual

criminal charges and, pursuant to the habitual criminal statute, sentenced him to sixty-

four years’ imprisonment on the burglary conviction and twelve years’ imprisonment on

the menacing conviction, to run concurrently. The Colorado Court of Appeals (CCA)

affirmed Rhodes’s convictions, and the Colorado Supreme Court denied certiorari.

Rhodes filed a motion for post-conviction relief. The Colorado district court denied the

motion, and the CCA affirmed.

       Rhodes then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

2254 in the United States District Court for the District of Colorado, raising the following

claims: (i) insufficient evidence; (ii) improper jury instructions; (iii) speedy trial

violation; (iv) violation of right to a jury determination of habitual criminality; (v) Brady

violation; (vi) ineffective assistance of trial counsel; and (vii) ineffective assistance of

appellate counsel. In a thorough order, the district court dismissed claims (ii), (iii), and

(vii) as unexhausted and procedurally barred, and dismissed Rhodes’s remaining claims

on the merits.

                                               II

       A petitioner must obtain a COA in order to appeal a district court’s denial of a §

2254 petition. 28 U.S.C. § 2253(c)(1)(a). A COA may be issued only upon a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the

district court denies a habeas petition on the merits, a COA may issue only when the

                                               3
petitioner demonstrates “that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.”1 Slack v. McDaniel, 529 U.S. 473, 484

(2000).

       We incorporate the Antiterrorism and Effective Death Penalty Act’s (AEDPA)

deferential treatment of state court decisions into our consideration of a request for a

COA. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, a

petitioner is not entitled to habeas relief unless he or she can establish that the state

court’s 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). We may not grant habeas relief merely

because we conclude, in our independent judgment, that the state court was incorrect.

Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). “Rather, we may grant relief only

when we are convinced the state court’s application of federal law [went] beyond being

erroneous and instead [was] objectively unreasonable.” Snow v. Sirmons, 474 F.3d 693,

696 (10th Cir. 2007).

                                               III

       Based on our independent review of the record and construing Rhodes’s pro se

pleadings liberally, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), we


       1
        Rhodes does not challenge the district court’s determination that certain claims
were unexhausted and procedurally barred.

                                               4
conclude that Rhodes has not shown that reasonable jurists would debate whether his

petition states a valid claim of the denial of a constitutional right. Therefore, we deny

Rhodes’s application for a COA.

A. Sufficiency of the Evidence

       Rhodes argues that there was insufficient evidence to convict him of burglary

because there was no evidence that he entered Thomas’s apartment unlawfully or

remained there unlawfully. The Due Process Clause guarantees that “no person shall be

made to suffer the onus of a criminal conviction except upon sufficient proof . . . .”

Jackson v. Virginia, 443 U.S. 307, 316 (1979). Sufficient proof is proof beyond a

reasonable doubt. Id. at 317-18. In reviewing a challenge to the sufficiency of the

evidence in a habeas petition, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319.

Our review under Jackson “is sharply limited, and a court faced with a record of historical

facts that supports conflicting inferences must presume—even if it does not affirmatively

appear in the record—that the trier of fact resolved any such conflicts in favor of the

prosecution, and must defer to that resolution.” Brown v. Sirmons, 515 F.3d 1072, 1089

(10th Cir. 2008) (quotations and alterations omitted).

       We agree with the district court that the CCA reasonably applied the correct legal

standard when it rejected Rhodes’s claim. One element of Colorado first degree burglary

is that the defendant unlawfully entered or unlawfully remained after a lawful or unlawful

                                              5
entry into a building or occupied structure. See Colo. Rev. Stat. § 18-4-202. The CCA

ruled that a reasonable juror could have found that, even if Rhodes’s initial entry into the

apartment was lawful, Thomas implicitly withdrew any permission for Rhodes to occupy

the apartment after Rhodes threatened him with a gun, and/or that Thomas explicitly

withdrew any such permission when he told Rhodes to get out of his house. ROA, Vol. 1

at 162; see also Trial Tr. at 420, 426. This conclusion was not objectively unreasonable.

B. Jury Determination of Prior Convictions

       Rhodes argues that his Sixth Amendment rights were violated when a judge, rather

than a jury, found him to be a habitual criminal. Apprendi v. New Jersey, 530 U.S. 466

(2000), requires a jury to find any fact that increases the penalty for a crime beyond the

statutory maximum. However, as Rhodes acknowledges, the Apprendi rule does not

apply to the fact of a prior conviction. Federal law permits a sentencing judge to

determine the fact of a prior conviction. See United States v. Booker, 543 U.S. 220, 244

(2005) (reaffirming the holding of Apprendi that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the maximum authorized

by the facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt” (emphasis added)); see also

United States v. Prince, No. 10-3180, __ F.3d __ (10th Cir. 2011) (“We have held

repeatedly that despite Apprendi, the ‘fact’ of a prior conviction may be found by a

sentencing judge rather than a jury.”). No reasonable jurist would conclude that the

CCA’s rejection of Rhodes’s Apprendi claim was contrary to or an unreasonable

                                              6
application of federal law.

       Rhodes’s related claim based on Sullivan v. Louisiana, 508 U.S. 275 (1993), also

lacks merit. In Sullivan, the Supreme Court held that the Sixth Amendment requires a

jury to determine guilt beyond a reasonable doubt. Contrary to Rhodes’s argument, it

does not follow that any fact that must be determined beyond a reasonable doubt under

state law (such as a prior conviction) must also be found by a jury.

C. Brady Violation

       Rhodes argues that his due process rights were violated when the prosecution

deliberately withheld exculpatory evidence. In a post-conviction motion, Rhodes

submitted affidavits from a fellow inmate and his sister that were somewhat inconsistent,

but both related that Thomas stated he told police that Rhodes had permission to be in his

apartment.2

       The Due Process Clause prohibits the government from suppressing evidence

favorable to the accused that is material to guilt or punishment. Brady v. Maryland, 373

U.S. 83, 87 (1963). Evidence is material “only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Courts must evaluate

the materiality of the allegedly withheld evidence “in light of the entire record in order to

       2
          One affidavit states that Thomas said he had fled to Texas in order to avoid the
district attorney’s requests that he perjure himself by testifying that Rhodes did not have
permission to be in his apartment. ROA, Vol. 3 at 580-81. The other affidavit states that
Thomas said he offered to testify at trial, but he did not because the district attorney never
returned his telephone call. Id. at 583.

                                              7
determine if the omitted evidence creates a reasonable doubt that did not otherwise exist.”

Snow, 474 F.3d at 711 (quotation omitted).

       The CCA determined that “even if the accounts contained in the affidavits

submitted by defendant had been added to the trial testimony, they would not have

created a reasonable likelihood that [Rhodes] would have been acquitted of burglary . . .

.” ROA, Vol. 1 at 256. We agree with the district court that the CCA applied a

substantially correct materiality standard, even despite that court’s erroneous citation to

the test relating to destruction of evidence rather than to Brady.

       We also agree with the district court that the CCA’s conclusion was not

objectively unreasonable. Any statement by Thomas that Rhodes had permission to be in

the apartment would have been contradicted by Rhodes’s own testimony that Thomas told

him to “get the f**** out of my house.” Trial Tr. at 420. Rhodes’s post-conviction

attempts to characterize this statement as directed to Buchette contradicts his testimony at

trial. When the prosecutor asked Rhodes “you said when your attorney asked you, before

the shot was fired Michael Thomas told you to leave the house; he said, get out of my

apartment, didn’t he?” Rhodes replied, “Yeah” and testified that he did not get out

immediately because Buchette charged at him. Trial Tr. at 426 (emphasis added).

Because Thomas’s alleged suppressed statements would have contradicted Rhodes’s own

testimony at trial, we cannot conclude that the CCA’s determination that the statements

were not material was objectively unreasonable. Cf. Snow, 474 F.3d at 713 (ruling that

the state court’s rejection of a petitioner’s Brady claim was not an unreasonable

                                              8
application of federal law where the withheld evidence could not be squared with “firmly

grounded” testimony provided at trial).

D. Ineffective Assistance of Counsel

       Rhodes contends that his trial counsel was ineffective for failing to interview

Thomas prior to trial or to secure his testimony. In order to prevail on a claim of

ineffective assistance of counsel, a defendant must show that counsel’s performance was

constitutionally deficient, and that this deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

       The CCA rejected Rhodes’s ineffective assistance of counsel claim because “there

is no reasonable probability the outcome of the proceedings would have been different in

light of the defendant’s own testimony that, after he pointed a gun at [Thomas], [Thomas]

told him to “get . . . out.” ROA, Vol. 1 at 258. We agree with the district court that this is

not an unreasonable application of Strickland. Even if Thomas’s testimony could have

been secured and this testimony would have been favorable to Rhodes, such testimony

would have contradicted Rhodes’s own testimony. The CCA was not unreasonable in

concluding that any failure of counsel to investigate or obtain Thomas’s testimony was

not prejudicial.

       Rhodes also argues that his counsel was ineffective for failing to adequately

prepare him to testify at trial. Essentially, he argues that his counsel was ineffective for

failing to prevent him from incriminating himself by testifying that Thomas told him to

get out of the apartment. We agree with the district court that “the colloquy between

                                              9
Petitioner and his trial counsel supports the Colorado Court of Appeals’ determination

that Petitioner’s incriminating statement that [Thomas] told him to leave the apartment

was not elicited by his trial counsel, but rather was volunteered by Petitioner.” ROA,

Vol. 1 at 359. The CCA’s conclusion that counsel’s performance was not constitutionally

deficient was not unreasonable.

       Finally, Rhodes argued in the district court that counsel’s multiple errors or

multiple trial errors, taken together, deprived him of a fair trial. However, he does not

raise a cumulative error argument in his application for a COA. Therefore, we do not

address it.

                                             IV

       Rhodes’s motion to proceed in forma pauperis is GRANTED. Rhodes’s request

for a COA is DENIED and this matter is DISMISSED.



                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Chief Judge




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