                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                          February 8, 2012
                                   TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court


 RICHARD G. KIRBY,

           Petitioner-Appellant,
                                                             No. 11-2214
 v.                                               (D.C. No. 1:08-CV-00886-MV-CG)
                                                              (D. N.M.)
 GARY K. KING, Attorney General for
 the State of New Mexico,

           Respondent-Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


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



       Richard G. Kirby, proceeding pro se, seeks a certificate of appealability (COA) to

challenge the district court’s denial of his 28 U.S.C. § 2254 application for federal habeas

relief. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254

application). Because Kirby has failed to satisfy the standards for the issuance of a COA,

we deny his request and dismiss the matter.




       *
         This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
                                               I.

       In 2004, Kirby was convicted on one count of fraud by worthless check under

N.M. Stat. Ann. § 30-36-4, following a jury trial in Dona Ana County, New Mexico. He

was sentenced to five years’ imprisonment and one year of parole.

       Kirby brought a direct appeal to the New Mexico Court of Appeals, which

affirmed his conviction and sentence. The New Mexico Supreme Court denied Kirby’s

petition for a writ of certiorari. Kirby was represented by counsel both at trial and on

appeal.

       Kirby later filed a petition for a writ of habeas corpus with the Dona Ana County

district court. In a brief two-page order, the court denied relief on all counts. First, as to

Kirby’s ineffective assistance of counsel claim, the court concluded that he “failed to

show any actual prejudice resulting from counsel’s alleged errors.” ROA at 47. Second,

the court concluded that Kirby’s “claim concerning the credibility of evidence introduced

at trial provides no basis for post-conviction relief.” Id. Third, the court dismissed

Kirby’s claim that the evidence was insufficient to support his conviction because it

believed that “[a] claim of insufficiency of evidence is generally not available in habeas

corpus.” Id. Finally, the court rejected Kirby’s claim “that his sentence was illegally

enhanced using ‘unconstitutional’ prior convictions.” Id. at 48.

       In 2008, while Kirby was still in custody, he initiated federal court proceedings by

filing a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district

court referred the case to a magistrate judge, who concluded that Kirby’s petition should

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be dismissed without prejudice because it raised claims for relief that Kirby had not

exhausted in state court. The district court adopted the magistrate judge’s

recommendation and dismissed the case without prejudice. Kirby sought a certificate of

appealability in this court, which we granted. See Kirby v. Janecka, 379 F. App’x 781,

782 (10th Cir. 2010) (unpublished). Upon review, we reversed the district court’s

judgment and remanded for further proceedings. Id. We determined that while three of

Kirby’s nine claims were moot, his remaining six claims had been exhausted in state

court and were ripe for federal habeas review. Id. at 782-84.

       Upon remand, the district court re-referred the case to a magistrate judge to

consider Kirby’s remaining six claims.1 Kirby claimed that: (1) the evidence introduced

at his trial was insufficient to support a conviction; (2) the trial judge erred by failing to

grant his motion for acquittal; (3) the prosecutor engaged in misconduct when he failed to

produce exculpatory evidence and knowingly elicited perjured testimony from a witness;

(4) during closing arguments, the prosecutor improperly vouched for the credibility of

three witnesses and shifted the burden of proof for producing key evidence; (5) his trial

counsel was ineffective in numerous ways; and (6) his appellate counsel was ineffective

in failing to raise meritorious arguments.

       The magistrate judge issued a twenty-six-page recommendation that the district

court dismiss all of Kirby’s claims with prejudice. As to Kirby’s sufficiency-of-the-



       1
           In the meantime, Kirby was released from parole supervision in August 2010.

                                              -3-
evidence claim, the magistrate judge noted that the state court did not adjudicate the claim

on the merits. As such, the magistrate judge conducted a de novo review of the record

and concluded that the evidence was sufficient under the standard set forth in Jackson v.

Virginia, 443 U.S. 307 (1979). Second, the magistrate judge determined that the district

court was without jurisdiction to consider Kirby’s challenge to the state court’s denial of

his motion for acquittal because it involved an issue of state law. Third, the magistrate

judge concluded that Kirby’s numerous allegations of prosecutorial misconduct—which

the state court also did not address—did not render the trial fundamentally unfair under

clearly established federal law. Finally, as to Kirby’s ineffective-assistance-of-counsel

claim, the magistrate judge concluded that the state court’s application of a substantial

equivalent of the Strickland “prejudice prong” was not an unreasonable application of

clearly established federal law.

       The district court, in its own seventeen-page opinion, adopted the magistrate

judge’s proposed findings and recommended disposition, with two exceptions. First, the

court concluded that the prosecutor improperly vouched for the credibility of two

witnesses during closing arguments. But viewed in the context of the entire trial

proceeding, the court determined that “the prosecutor’s comments about the witnesses’

credibility did not result in a fundamentally unfair trial or a denial of due process.” ROA

at 1073-74. Second, the court concluded that the prosecutor impermissibly shifted the

burden of proof to the defendant to produce exculpatory evidence and thereby establish

his own innocence. Again, however, “considering all of the evidence and the entirety of

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the closing argument, the prosecutor’s comment did not deprive [Kirby] of his right to a

fundamentally fair trial.” Id. at 1074.

         The district court dismissed Kirby’s petition with prejudice on September 30,

2011, and entered judgment the same day. Kirby requested a COA from the district court,

which the court denied. Kirby filed a timely notice of appeal. He has since filed a

combined opening brief and application for COA in this court.

                                              II.

         Our granting of a COA is a jurisdictional prerequisite to Kirby’s appeal from the

denial of his § 2254 petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“‘The

COA statute establishes procedural rules and requires a threshold inquiry into whether the

circuit court may entertain an appeal.’” (quoting Slack v. McDaniel, 529 U.S. 473, 482

(2000))). We may issue a COA “only if the applicant has made a substantial showing of

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

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “the

standard of review applicable to a particular claim depends upon how that claim was

resolved by the state courts.” Alverson v. Workman, 595 F.3d 1142, 1146 (10th Cir.

2010).

               If a claim was addressed on the merits by the state courts, we
               may not grant federal habeas relief on the basis of that claim
               unless 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

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               proceeding.”

Id. (citations omitted). “[W]e owe deference to the state court’s result, even if its

reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).

To the extent that the state court did not address the merits of a claim and the federal

district court made its own determination in the first instance, we engage in a

“preliminary, though not definitive, consideration,” Miller-El, 637 U.S. at 338, of the

district court’s legal framework to determine whether “reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong,” Slack, 529

U.S. at 484.

       As we discuss in detail below, the state courts did not rule on all of the issues

Kirby raised in his state habeas petition. Under AEDPA, we owe deference to the state

habeas court’s decision on Kirby’s ineffectiveness of counsel claim. We also owe

deference to the New Mexico Court of Appeals’ decision on Kirby’s claim that the

prosecution improperly shifted the burden of proof during closing argument. We will not

defer to the federal district court’s de novo review of Kirby’s claims on sufficiency of the

evidence and his other claims of prosecutorial misconduct.

Sufficiency of the Evidence

       In his petition to the district court, Kirby contended that there was insufficient

evidence to support his conviction for fraud by worthless check. In his combined opening

brief and application for a COA to this court, Kirby included a section entitled

“INSUFFICIENT EVIDENCE.” But we cannot discern a substantive legal argument or a

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reasoned basis for granting a COA from the conclusory statements under that heading.

       In a sufficiency-of-the-evidence challenge, the pertinent “clearly established

Federal law” requires courts to determine 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.” Jackson, 443 U.S. at 319.

The state district court, upon review of Kirby’s state habeas petition, denied review of this

claim because it believed, incorrectly, that “[a] claim of insufficiency of evidence is

generally not available in habeas corpus.” ROA at 47. Because the state court did not

consider the merits of Kirby’s sufficiency-of-the-evidence claim, the federal district court

undertook a de novo review of the evidence at trial under the Jackson standard.

       While we liberally construe Kirby’s pro se submissions, “we are not required to

fashion [Kirby’s] arguments for him where his allegations are merely conclusory in

nature and without supporting factual averments.” United States v. Fisher, 38 F.3d 1144,

1147 (10th Cir. 1994) (citation omitted); see also Am. Airlines v. Christensen, 967 F.2d

410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that one is

appealing an adverse ruling below without advancing reasoned argument as to the

grounds for the appeal.”). Kirby did not attempt to make a substantial showing of the

denial of a constitutional right, as required under AEDPA. Generously construed,

Kirby’s sufficiency-of-the-evidence arguments are cumulative of his arguments on

prosecutorial misconduct and ineffective assistance of counsel, which we will address

individually. Even so, we have no difficulty concluding that reasonable jurists would not

                                              -7-
debate the district court’s determination that there was sufficient evidence at trial to

convict Kirby of fraud by worthless check. See Slack, 529 U.S. at 484. Kirby is not

entitled to a COA on this claim.

Prosecutorial Misconduct

       Kirby raised prosecutorial misconduct arguments in his state habeas petition, but

the state court did not address the claims in its order. In the absence of an adjudication on

the merits, the district court properly conducted de novo review of this claim.

       First, Kirby alleged that the state prosecutor violated his duty under Brady v.

Maryland, 373 U.S. 83 (1963), to disclose exculpatory evidence. He contended that the

prosecutor should have produced (1) the unused airline tickets he purchased from

Adventure Travel in exchange for the check, (2) a Las Cruces Police Department report

regarding an alleged physical threat made by William Mattiace, a co-owner of Adventure

Travel, against Kirby, and (3) documentation of funds drawn out of Kirby’s checking

account by Tom Laws, his accountant. After analyzing each piece of evidence Kirby

identified as exculpatory, the district court concluded that none of the evidence would

have been “material” to his defense, such that there was a “reasonable probability” that

the result of the proceeding would have been different if the documents had been

disclosed. See United States v. Bagley, 473 U.S. 667, 682 (1985) (“A ‘reasonable

probability’ is a probability sufficient to undermine confidence in the outcome.”). “A

Brady violation has three essential elements: the evidence at issue must be favorable to

the accused, either because it is exculpatory, or because it is impeaching; that evidence

                                             -8-
must have been suppressed by the State, either willfully or inadvertently; and prejudice

must have ensued.” Douglas v. Workman, 560 F.3d 1156, 1173 (10th Cir. 2009)

(quotations omitted). “Prejudice satisfying the third element exists when the suppressed

evidence is material for Brady purposes.” Id. (quotations omitted).

       The district court’s conclusion on the alleged Brady violations is neither debatable

nor wrong. Even if Kirby had been able to impeach Mattiace with the police report, it is

highly unlikely that such an attack on Mattiace’s character would have changed the jury’s

verdict. As the magistrate judge remarked, “the collection efforts by Mr. Mattiace are not

a defense to the crime under New Mexico law.” ROA at 1026. The cancelled airline

tickets also could not have helped Kirby’s cause. We agree with the district court’s

observation that “whether or not the tickets were actually used [was] irrelevant to a

determination of guilt.” Id. at 1069. The district court also reasonably concluded that any

documentation of funds drawn out of Kirby’s checking account by Tom Laws was neither

exculpatory nor within the state’s custody or control. In sum, the district court’s

conclusions on this issue are not reasonably subject to debate.

       In Kirby’s second claim of prosecutorial misconduct, he alleges that the prosecutor

knowingly elicited perjured testimony from a witness and failed to correct the witness’s

false statements. He claims that Mattiace perjured himself when he denied making

physical threats to Kirby. He also claims that Laws perjured himself when he said he had

drawn only two checks using Kirby’s account. The prosecution, Kirby claims, had

evidence that Laws had drawn on the account more than twice. While Kirby is correct

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that “uncorrected perjured testimony by a key prosecution witness” can be constitutional

error under Napue v. Illinois, 360 U.S. 264 (1959), the allegedly false testimony of these

witnesses was not material to the prosecution’s case. We agree with the district court that

the testimony had “no bearing on whether [Kirby] actually committed the crime.” ROA

at 1070.

       Third, Kirby alleges that the prosecutor engaged in two types of misconduct during

closing argument. First, he alleges that the prosecutor impermissibly vouched for the

credibility of three witnesses during closing argument. The district court determined that

the prosecutor engaged in improper vouching by “clearly expressing his opinion about the

truth of the witnesses’ testimony.” Id. at 1073. But taken in the context of the entire trial

proceeding, the district court concluded that the prosecutor’s comments “did not result in

a fundamentally unfair trial or a denial of due process.” Id. at 1073-74.

       Kirby also alleges that the prosecutor advised the jury that Kirby, not the

government, had the burden of producing exculpatory evidence. The New Mexico Court

of Appeals addressed Kirby’s burden-shifting argument on direct appeal. The court

concluded that while “[i]t is not at all clear that the prosecutor’s statement was in any way

improper,” any error was cured by the district court’s instruction to the jury to disregard

the statement. Id. at 34-35. We agree with the district court that this comment “did not

deprive [Kirby] of his right to a fundamentally fair trial” in the context of the entire

proceeding, especially in light of defense counsel’s contemporaneous objection and the

court’s admonition. Id. at 1074.

                                             -10-
       Kirby contends that the district court “failed to address the cumulative effect of the

two acknowledged errors” of improper vouching and burden shifting. Aplt. Br. at 31.

But this is precisely what the district court did. The court explicitly “consider[ed] all of

the evidence and the entirety of the closing argument.” ROA at 1074. The district court’s

assessment of these claims is not subject to debate, and Kirby is not entitled to a COA for

any of his claims of prosecutorial misconduct.

Ineffective Assistance of Counsel

       Unlike his claims of prosecutorial misconduct, the state court expressly denied

habeas relief on Kirby’s claims of ineffective assistance of counsel. The court cited a

New Mexico Supreme Court opinion, State v. Schoonmaker, 176 P.3d 1105 (N.M. 2008),

which, in turn, relied on Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, the defendant “must identify the acts or omissions of counsel that are alleged

not to have been the result of reasonable professional judgment.” Id. at 690. “The court

must then determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.” Id.

Second, the defendant must show that his counsel’s deficient performance actually

prejudiced his defense by showing “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

       When a state court has adjudicated a claim on the merits, we may grant relief only

if 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”

                                             -11-
or “resulted in a decision that 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).

Because Kirby seeks a COA to appeal the denial of his habeas claim for ineffective

assistance of counsel, our review is “doubly deferential.” Knowles v. Mirzayance, 556

U.S. 111, 123 (2009). “The question is not whether a federal court believes the state

court’s determination under the Strickland standard was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” Id. (quoting Schriro

v. Landrigan, 550 U.S. 465, 473 (2007)) (internal quotation marks omitted). “And,

because the Strickland standard is a general standard, a state court has even more latitude

to reasonably determine that a defendant has not satisfied that standard.” Id.

       The state court concluded that Kirby “failed to show any actual prejudice resulting

from counsel’s errors.” ROA at 47. Kirby contends that we must consider his trial

counsel’s “affidavit of ineffectiveness,” which “has never been litigated in an evidentiary

hearing, by any court, on the merits.” Aplt. Br. at 34. It is not clear from the state district

court’s order dismissing Kirby’s habeas petition that the court took counsel’s affidavit

into consideration. See Wilson v. Sirmons, 536 F.3d 1064, 1080 (10th Cir. 2008) (“The

question, then, is whether the state court considered this evidence when it rendered its

decision. If so, its decision is entitled to deference; if not, we must make our own de

novo evaluation.”). But even when we apply de novo review and set aside AEDPA

deference, see id. at 1081, it is apparent that Kirby has failed to show a reasonable

probability that, but for trial counsel’s errors, the result of the proceeding would have

                                             -12-
been different. Focusing only on the second prong of the Strickland analysis, it is not

reasonably likely that the trial counsel’s failure to subpoena Officer Ricky Madrid,

discover impeachment evidence, and secure the production of certain documents actually

prejudiced Kirby’s defense. In other words, there is not a reasonable probability that this

evidence would have been material to the outcome of the trial. First, had counsel secured

the testimony of Officer Madrid, who investigated William Mattiace’s alleged bomb

threat against Kirby, the officer’s testimony would not have been relevant to the jury’s

consideration of Kirby’s guilt. The testimony was simply collateral to the charged

offense. Second, had counsel obtained copies of the airline tickets issued to Kirby in

exchange for the worthless check, the evidence would have been of little utility to the

defense. It was not the prosecution’s burden to prove that Kirby actually used the airline

tickets he fraudulently acquired; the state merely had to show that Kirby issued a

worthless check, with intent to defraud, in exchange for “anything of value.” N.M. Stat.

Ann. § 30-36-4. The tickets had value when Kirby acquired them. Finally, counsel’s

failure to secure and introduce evidence of Tom Laws’s loan documents, despite his

failed last-minute attempt to compel production, was not prejudicial because the

documents were minimally relevant to the charged offense. Even assuming the truth of

these allegations and considering their cumulative effect, we conclude that the claim falls

short of establishing prejudice under Strickland.

       Kirby has failed to show that the state court’s decision were contrary to, or

involved an unreasonable application of, the Strickland standard. He is not entitled to a


                                            -13-
COA on this claim.

Conclusion

       We have construed Kirby’s filings liberally because he is proceeding pro se. See

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). But because Kirby has not

“made a substantial showing of the denial of a constitutional right,” he is not entitled to a

COA. 28 U.S.C. § 2253(c)(2).

                                             III.

       We DENY Kirby’s application for a COA and DISMISS the matter.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Chief Judge




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