                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            August 9, 2010
                                    TENTH CIRCUIT
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 DAVID COLEMAN,

           Petitioner-Appellant,

 v.                                                          No. 10-1243
                                                   (D.C. No. 1:08-CV-00427-WDM
 AL ESTEP; ATTORNEY GENERAL OF                                (D. Colo.)
 THE STATE OF COLORADO,

           Respondents-Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*



Before KELLY, McKAY, and LUCERO, Circuit Judges.


       David Coleman, a 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 habeas

petition. Because Coleman has not made a substantial showing of the denial of a

constitutional right, we deny a COA and dismiss the appeal.




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
        Because Coleman proceeds pro se, we construe his filings liberally. See Haines
v. Kerner, 404 U.S. 519, 520-21 (1972).
       Following a jury trial, Coleman was convicted in Colorado state court of first

degree murder, aggravated robbery, conspiracy to commit aggravated robbery, possession

of a deadly weapon, felony murder, and two counts of menacing.2 His convictions were

affirmed on direct appeal. Coleman subsequently filed a motion seeking state post-

conviction relief under Colorado Rule of Criminal Procedure 35(c), which was denied.

After that denial was affirmed on appeal, Coleman filed a § 2254 in federal district court

asserting seven claims for relief. The district court denied the petition and did not grant a

COA.

       A petitioner may not appeal the denial of relief under § 2254 petition without a

COA. § 2253(c)(1)(A). We may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires

Coleman to 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 encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted).

       Coleman advances three arguments on appeal. First, he claims he was denied the

right to testify and his counsel was ineffective for failing to raise this challenge on direct

appeal. Coleman’s contention is based on the trial court’s refusal to rule on the

voluntariness of suppressed statements, allegedly preventing Coleman from knowingly

deciding whether to testify. But we may grant habeas relief only if the state court

proceedings “resulted in a decision that was contrary to, or involved an unreasonable

       2
           The felony murder conviction was later vacated.
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application of, clearly established Federal law, as determined by the Supreme Court of

the United States.” § 2254(d)(1). Coleman has failed to identify any cases clearly

establishing that a trial court’s failure to decide in advance whether suppressed statements

were voluntary violates a defendant’s right to testify, nor have we found any such case in

our independent research. Habeas relief is thus not available on this basis.

       Further, the district court found that Coleman had not presented his ineffective

assistance of counsel claim to the Colorado Court of Appeals, and thus not exhausted his

state remedies on that claim. Because Coleman has not demonstrated that he exhausted

his state remedies nor coherently argued that exhaustion would be futile, we may not

grant relief on this basis. See § 2254(b)(1).

       Second, Coleman argues that the jury instructions violated his right to a jury trial

because they stated the prosecution must fail to prove every element of the crime for him

to be acquitted. Under the due process clause, “[t]he prosecution bears the burden of

proving all elements of the offense charged.” Sullivan v. Louisiana, 508 U.S. 275, 277-

78 (1993). We must consider jury instructions in context and, when addressing an

ambiguous instruction, consider “whether there is a reasonable likelihood that the jury

has applied the challenged instruction in a way” that violates the Constitution. Boyde v.

California, 494 U.S. 370, 378, 380 (1990). A reference to the burden of proof was

included in the jury instructions for each count, providing, “After considering all the

evidence, if you decide the prosecution has failed to prove each of the elements beyond a

reasonable doubt, you should find the defendant not guilty . . . .” Although it is possible

to parse this instruction as Coleman does, such a reading is unnatural. Further, the jury

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was separately instructed, “If you find from the evidence that the [prosecution has] failed

to prove any one or more of the elements of any count beyond a reasonable doubt, you

will find the defendant not guilty as to that count,” and, “The burden of proof is upon the

prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the

existence of all of the elements necessary to constitute the crime charged.” These

instructions unequivocally allocate the burden of proof on every element to the

prosecution. The challenged instruction therefore does not violate due process.

       Finally, Coleman argues that his due process rights were violated because the trial

court erred in denying his motion to disqualify the trial judge. A defendant has the right

to be tried by a judge with no actual bias against him or interest in the outcome of the

case. See Bracy v. Gramley, 520 U.S. 899, 905-06 (1997). But the record does not

contain evidence that the trial court judge was biased. Coleman’s argument rests entirely

on the trial judge’s decision to increase security measures in the courtroom after he

simultaneously received reports that Coleman made threatening statements regarding the

judge to a guard and that a break-in had occurred at his home. Given the circumstances,

the increased security reflects a legitimate concern, not bias.

       For the foregoing reasons, we DENY the request for a COA and DISMISS the

appeal. We GRANT the motion to proceed in forma pauperis.

                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge


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