                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 23, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 VINCENT TRUJILLO,

          Petitioner-Appellant,

 v.
                                                         No. 10-1314
 WARDEN STEVE HARTLEY; THE                     (D.C. No. 1:07-CV-02337-MSK)
 ATTORNEY GENERAL OF THE                                  (D. Colo.)
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Vincent Trujillo, a Colorado state inmate proceeding pro se, 1 seeks a

certificate of appealability (“COA”) pursuant to 28 U.S.C. § 2253(c)(1)(A) so that

he may challenge the district court’s denial of his petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Mr. Trujillo also moves for leave to proceed in


      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Trujillo is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
forma pauperis on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we hold that reasonable jurists could not disagree with the district

court’s denial of Mr. Trujillo’s § 2254 petition. See Slack v. McDaniel, 529 U.S.

473, 484 (2000). Accordingly, we deny Mr. Trujillo’s application for a COA and

dismiss his appeal. We also deny Mr. Trujillo’s request to proceed in forma

pauperis.

                                 BACKGROUND

      On May 10, 2000, a woman sitting in a parked car in a Blockbuster movie-

rental store parking lot witnessed Mr. Trujillo and his uncle get into a drunken

altercation with an older man, who was ultimately stabbed in the chest. The

police immediately detained Mr. Trujillo. Although he professed innocence,

claiming that his uncle—not he—was the actual assailant, the witness identified

Mr. Trujillo as the perpetrator in a “one-on-one show-up” identification within

minutes of the attack.

      At trial, Mr. Trujillo’s counsel sought to exclude this identification on the

ground that it was obtained in an overly suggestive manner—viz., Mr. Trujillo

was handcuffed and in the presence of uniformed police officers when the woman

fingered him as the wrongdoer. The state trial court found the identification to be

reliable, however, and allowed it into evidence. Mr. Trujillo was subsequently

convicted of first-degree assault, attempted second-degree murder, and tampering




                                         -2-
with physical evidence, for which he was sentenced to concurrent prison terms of

thirty-two years, twenty-four years, and eighteen months, respectively.

      The state courts rejected Mr. Trujillo’s direct appeal, application for post-

conviction relief, and appeal from the denial of post-conviction relief. Mr.

Trujillo then filed a 28 U.S.C. § 2254 petition for habeas corpus relief in federal

district court. The district court dismissed Mr. Trujillo’s petition as without

merit, and denied him a COA. Mr. Trujillo now seeks to appeal.

                            STANDARD OF REVIEW

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

corpus petition. See Williams v. Jones, 571 F.3d 1086, 1088 (10th Cir. 2009)

(citing 28 U.S.C. § 2253(c)(1)); Miller-El v. Cockrell, 537 U.S. 322, 335–36

(2003)), cert. denied, 130 S. Ct. 3385 (2010). “We will issue a COA ‘only if the

applicant has made a substantial showing of the denial of a constitutional right.’”

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting 28 U.S.C.

§ 2253(c)(2)). “To make such a showing, an applicant must demonstrate ‘that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” Id. (quoting Slack, 529 U.S. at 484).

Our inquiry does not require a “full consideration of the factual or legal bases

adduced in support of the claims,” but rather “an overview of the claims . . . and a

general assessment of their merits.” Miller-El, 537 U.S. at 336. Because the

                                         -3-
district court addressed the merits of Mr. Trujillo’s claims in rejecting his § 2254

petition, we will grant a COA only if Mr. Trujillo demonstrates that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack, 529 U.S. at 484.

      Where, as here, the state court decided petitioner’s claims on the merits, a

§ 2254 petitioner is entitled to federal habeas relief only if he can show that the

state court’s adjudication of the claim:

                    (1) resulted in a decision that was contrary to, or involved
             an unreasonable application of, clearly established Federal law,
             as determined by the Supreme Court of the United States; or
                    (2) 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)(1)–(2); 2 accord Phillips v. Workman, 604 F.3d 1202, 1209


      2
              The Supreme Court recently clarified the scope of § 2254(d)(2) in
Wilson v. Corcoran, 131 S. Ct. 13 (2010) (per curiam), where the Court
underscored that “[f]ederal courts may not issue writs of habeas corpus to state
prisoners whose confinement does not violate federal law.” Id. at 14. In
particular, the Court held that a federal court’s review of a state court’s factual
determinations under § 2254(d)(2) is cabined by the limitations imposed by
§ 2254(a)—viz., the former provision “d[id] not repeal the command of § 2254(a)
that habeas relief may be afforded to a state prisoner ‘only on the ground’ that his
custody violates federal law.” Id. at 17. Therefore, even if a federal court
concludes that a state court made unreasonable factual determinations in light of
the evidence presented in the state court proceedings, it is not empowered to grant
federal habeas relief unless it also determines that petitioner has established a
violation of federal law. See id. at 16 (“[I]t is only noncompliance with federal
law that renders a State’s criminal judgment susceptible to collateral attack in the
federal courts.”); see also id. at 17 (“It is not enough to note that a habeas
petitioner asserts the existence of a constitutional violation; unless the federal
court agrees with that assertion, it may not grant relief.”).

                                           -4-
(10th Cir. 2010).

        When making our determinations, “[w]e presume the factual findings of the

state court are correct unless the petitioner rebuts that presumption by ‘clear and

convincing evidence.’” Welch v. Workman, 607 F.3d 674, 684 (10th Cir. 2010)

(quoting 28 U.S.C. § 2254(e)(1)).

                                    DISCUSSION

        Mr. Trujillo seeks a COA on his claim that his appellate counsel was

ineffective for failing to “raise two clearly meritorious issues on direct

appeal”—namely, the incorrect admission of the witness identification, and the

erroneous denial of his motion for a new trial as a result of potential jurors seeing

Mr. Trujillo in handcuffs outside the courtroom. Aplt. Opening Br. at 4(f). In

addition, Mr. Trujillo also seeks a COA for his claims that there was insufficient

evidence to convict him based on a theory of complicity, and that his sentence

was unconstitutionally enhanced based on aggravating facts never presented to the

jury.

A.      Ineffective Assistance of Appellate Counsel Claims

        Where a “COA application rests on claims of ineffective assistance of

counsel, in order to determine if [a movant] can make a substantial showing of the

denial of a constitutional right we must undertake a preliminary analysis . . . in

light of the two-part test for ineffective assistance” articulated in Strickland v.

Washington, 466 U.S. 668 (1984). United States v. Harris, 368 F. App’x 866,

                                         -5-
868 (10th Cir. 2010). “Under Strickland, [a movant] must show that counsel’s

performance fell below an objective standard of reasonableness as measured

against prevailing professional norms, and he must show that there is a reasonable

probability that the outcome would have been different but for counsel’s

inadequate performance.” Sandoval v. Ulibarri, 548 F.3d 902, 909 (10th Cir.

2008) (citing Strickland, 466 U.S. at 688). “When, as here, the basis for the

ineffective assistance claim is the failure to raise an issue, we must look to the

merits of the omitted issue.” United States v. Orange, 447 F.3d 792, 797 (10th

Cir. 2006). Counsel’s failure to raise an omitted issue that is without merit is not

prejudicial, and therefore, is not ineffective assistance. Id.; cf. Smith v. Robbins,

528 U.S. 259, 288 (2000) (“[A]ppellate counsel who files a merits brief need not

(and should not) raise every nonfrivolous claim, but rather may select from

among them in order to maximize the likelihood of success on appeal.” (citing

Jones v. Barnes, 463 U.S. 745, 751–52 (1983))).

      1.     Trial Court’s Admission of Show-Up Identification

      Mr. Trujillo first claims that his appellate counsel was ineffective for

failing to challenge the state trial court’s admission of evidence related to the

witness show-up identification of Mr. Trujillo. It is well-established that out-of-

court identifications—even those that occur in unduly suggestive

situations—comport with due process if they are determined to be reliable.

Manson v. Brathwaite, 432 U.S. 98, 114 (1977); Young v. Sirmons, 486 F.3d 655,

                                          -6-
664 (10th Cir. 2007) (recognizing that “[e]ven if the identification was unduly

suggestive, the [Supreme] Court [has] held that the admissibility

determination—both the admission of the extrajudicial identification and any

subsequent in-court identification—must turn on reliability”). Here, the state trial

court allowed the identification evidence only after holding a hearing wherein it

determined, based on the reliability factors identified in Manson, that there was

no substantial likelihood of misidentification. State Ct. R., Vol. IV, Tr. at 11–12

(Suppression Hr’g, dated Jan. 19, 2001).

      Acknowledging the state trial court’s faithful application of the “reliability”

test, 3 the state appellate court concluded that there was no ineffective assistance

of appellate counsel on this issue as the underlying claim lacked merit and, thus,

Mr. Trujillo did not suffer any prejudice from the omitted issue. People v.

Trujillo, 169 P.3d 235, 239 (Colo. App. 2007). The district court agreed, finding

that the state appellate court’s rejection of Mr. Trujillo’s ineffective assistance of

counsel claim, based on the trial court’s application of the Manson factors, was

neither contrary to, nor an unreasonable application of, Strickland, and was not an

unreasonable determination of the facts in light of the evidence presented. See

Trujillo v. Hartley, No. 1:07-CV-02337-MSK, 2010 WL 2692173, at *13–14 (D.

Colo. July 6, 2010).

      3
            The Colorado Court of Appeals applied the reliability test set forth in
People v. Young, 923 P.2d 145, 151 (Colo. App. 1995), which in turn applied the
reasoning of People v. Weller, 679 P.2d 1077, 1083 (Colo. 1984) (citing Manson).

                                         -7-
      We discern no error in this conclusion. Mr. Trujillo’s cursory statements in

opposition to the factual determinations underpinning the state trial court’s

reliability judgment hardly present the type of “clear and convincing evidence”

required for this court to ignore state court factual findings on federal habeas

review. 28 U.S.C. § 2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240

(2005) (noting that this “standard is demanding but not insatiable”).

      2.     Mr. Trujillo’s Appearance Before Prospective Jurors in Restraints

      Mr. Trujillo also claims that his counsel was ineffective for not challenging

the state trial court’s failure to grant a mistrial when, during a recess, certain

jurors may have seen him in handcuffs as he was being transported through a

public hallway back to his holding cell. The Colorado Court of Appeals resolved

this claim by first looking to the threshold due process issue: “Although some of

the jurors may have been milling around in the hallway, it is not certain that they

saw defendant or, if so, they saw his restraints. In any event, there is no

suggestion that the restraints were unnecessary where defendant was being

escorted in a public hallway.” Trujillo, 169 P.3d at 239. Finding this claim to be

without merit, the state appellate court, consistent with Strickland, held that Mr.

Trujillo’s counsel was not ineffective for dropping this issue on appeal. The

district court endorsed this conclusion, further adding that “[a]t the time the

Petitioner’s conviction was final, no Supreme Court decision held that it is

inherently prejudicial, and a violation of due process, for jurors to observe a

                                          -8-
criminal defendant being transported in shackles through a court hallway by law

enforcement authorities during a court recess.” Trujillo, 2010 WL 2692173, at

*16.

       We agree that Mr. Trujillo’s underlying due process claim is flawed, and

thus concur that the state court’s decision was a reasonable application of

established Supreme Court precedent. Mr. Trujillo urges a different conclusion

based on the Supreme Court’s holding in Deck v. Missouri, 544 U.S. 622 (2005),

wherein the Court stated that “the Fifth and Fourteenth Amendments prohibit the

use of physical restraints visible to the jury absent a trial court determination, in

the exercise of its discretion, that they are justified by a state interest specific to a

particular trial.” Deck, 544 U.S. at 629 (emphasis added). Admittedly, no such

formal determination was made in this instance. Deck nevertheless does little to

cure the infirmities in Mr. Trujillo’s claims, which the district court identified, as

Deck was issued after Mr. Trujillo’s conviction had become final. In the habeas

context, appellate counsel generally is not considered ineffective for failing to

raise a claim based on a constitutional proposition that the Supreme Court has not

yet articulated. See United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004)

(“The Sixth Amendment does not require counsel for a criminal defendant to be

clairvoyant.”); see also Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002)

(noting that this circuit has “rejected ineffective assistance claims where a

defendant faults his former counsel not for failing to find existing law, but for

                                          -9-
failing to predict future law” (internal quotation marks omitted)). Consequently,

Mr. Trujillo’s reliance on Deck is unavailing.

      As neither underlying issue has merit, we conclude that reasonable jurists

could not disagree with the district court’s dismissal of Mr. Trujillo’s ineffective

assistance of appellate counsel claims.

B.    Insufficiency of the Evidence Claim

      Mr. Trujillo next asserts that there was insufficient evidence to support a

conviction based on a theory of complicity. The jury, however, returned a general

verdict in this case, and general verdicts will not be disturbed for insufficiency of

the evidence so long as they are legally supportable on one of the grounds

submitted. See United States v. Griffin, 502 U.S. 46, 52 (1991). The Colorado

Court of Appeals, applying a sufficiency-of-the-evidence framework akin to the

federal standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979), rejected

Mr. Trujillo’s claim, concluding that sufficient evidence existed to “establish

defendant’s guilt as a principal, and it appears most likely that this was the basis

of the jury’s verdicts.” R., Vol. I, at 114–15 (People v. Trujillo, No. 01CA2273

(Colo. App. Oct. 16, 2003)). Likewise, the district court, accepting as true the

state court’s unrebutted factual findings, found that the general verdict of guilty

satisfied the requirements of Due Process because it was legally supportable on

one of the grounds—namely, conviction as a principal—and thus complied with

the requirements of Griffin. Trujillo, 2010 WL 2692173, at *8–9.

                                          - 10 -
      We find no error in this logic. Griffin clearly establishes “that a general

jury verdict [is] valid so long as it [is] legally supportable on one of the submitted

grounds—even though th[is gives] no assurance that a valid ground, rather than

an invalid one, [is] actually the basis for the jury’s action.” 502 U.S. at 49. Since

its issuance, this circuit has routinely applied Griffin in situations analogous to

the one at hand, and with similar results. See, e.g., United States v. Corrales, 608

F.3d 654, 657–58 (10th Cir. 2010); see also United States v. Ford, 550 F.3d 975,

991 (10th Cir. 2008) (collecting cases applying Griffin). Reasonable jurists could

not disagree that the district court’s resolution of this claim was correct.4

C.    Unconstitutional Sentence Enhancement Claim

      Finally, Mr. Trujillo claims that the state trial court used facts unproven to

the jury to enhance his sentence in violation of Apprendi v. New Jersey, 530 U.S.

466 (2000), and its progeny. Mr. Trujillo claims that Colorado’s laws, which


      4
              Mr. Trujillo also argues that the state court’s complicity instruction
was legally erroneous in that it impermissibly lowered the showing required by
the State. Mr. Trujillo did not raise this claim in state court, and has thus failed
to exhaust his state remedies. While this does not necessarily preclude our
consideration of the matter, see, e.g., Wilson v. Jones, 430 F.3d 1113, 1118 (10th
Cir. 2005) (holding exhaustion requirement inapplicable when requiring
exhaustion would be futile), Mr. Trujillo has made no attempt to make the
showing necessary to excuse this oversight, see Bland v. Sirmons, 459 F.3d 999,
1012 (10th Cir. 2006) (noting that to excuse procedural default, petitioner must
show either “cause for the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice” (quoting Coleman v. Thompson,
501 U.S. 722, 750 (1991))). We are therefore precluded from further
consideration of this claim.

                                         - 11 -
provide enhanced sentences for certain crimes designated as “per se” acts of

violence and crimes of extraordinary risk, violate the precepts of Apprendi by

“remov[ing] from the jury the assessment of facts which increase the range of

punishment for a defendant.” Aplt. Opening Br. at 4(d).

      Both the state appellate court and the district court found Apprendi

inapplicable in this instance, and we agree. Apprendi only applies when the

sentence is enhanced beyond the prescribed “statutory maximum,” which the

Court has defined as the maximum sentence a judge may impose “without any

additional findings.” Blakely v. Washington, 542 U.S. 296, 304 (2000).

      In this case, the interplay of five Colorado statutory provisions operated to

increase the maximum end of the presumptive sentence range for Mr. Trujillo’s

conviction for first-degree assault from twelve years to thirty-two years. See

Colo. Rev. Stat. §§ 18-1.3-401(1)(a)(V)(A) (2006) (setting the presumptive range

of class-three felonies—including first-degree assault—at four to twelve years);

18-3-202(2)(c) (2006) (designating first-degree assault as a per se crime of

violence); 18-1.3-401(10)(b)(XII) (2006) (designating per se crimes of violence

that require proof of serious bodily injury and the use of a deadly weapon—such

as first-degree assault—as extraordinary risk crimes); 18-1.3-401(10)(a) (2006)

(increasing the maximum presumptive range for any class-three felony that

qualifies as an extraordinary risk crime to sixteen years); 18-1.3-406(1)(a) (2006)

(providing that “[a]ny person convicted of a crime of violence shall be sentenced

                                        - 12 -
. . . for a term of incarceration of at least the midpoint in, but not more than twice

the maximum of, the presumptive range provided for such offense . . . as modified

for an extraordinary risk crime . . . .”).

       The sentence-range adjustment required no findings by the court in this

case. And, as Mr. Trujillo’s sentence fell within that “enhanced” range,

reasonable jurists could not disagree with the state and district courts’ conclusion

that Apprendi is not implicated here. 5

                                    CONCLUSION

       For the foregoing reasons, we DENY Mr. Trujillo’s application for a COA

and DISMISS his appeal. Further, as Mr. Trujillo has failed to present a

reasoned, nonfrivolous argument on appeal, we also DENY his motion for leave




       5
              Insofar as Mr. Trujillo suggests that this conclusion might be in error
in light of the Supreme Court’s recent decision in United States v. O’Brien, 130
S. Ct. 2169 (2010), we note only that this decision postdates by many years the
final decision by the state courts in this matter, and, consequently, any effect it
may have on the contours of Apprendi cannot serve as a basis for relief under
§ 2254(d). See Welch, 607 F.3d at 684 (“In applying § 2254(d), we first
determine whether the principle of federal law on which the petitioner’s claim is
based was clearly established by the Supreme Court at the time of the state court
judgment.” (emphasis added)); see also Wiggins v. Smith, 539 U.S. 510, 520
(2003) (“The amendments to 28 U.S.C. § 2254, enacted as part of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), circumscribe
our consideration of [petitioner’s] claim and require us to limit our analysis to the
law as it was ‘clearly established’ by our precedents at the time of the state
court’s decision.”).

                                             - 13 -
to proceed in forma pauperis. See McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 812 (10th Cir. 1997).


                                    ENTERED FOR THE COURT



                                    Jerome A. Holmes
                                    Circuit Judge




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