                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

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



 LEROY E. VALDEZ,

          Petitioner-Appellant,
 v.                                                     No. 10-1459
 SUSAN JONES, Warden; THE                     (D.C. No. 1:09-CV-00344-CMA)
 ATTORNEY GENERAL OF THE                                 (D. Colo.)
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



      Petitioner Leroy Valdez seeks a Certificate of Appealability (COA)

pursuant to 28 U.S.C. § 2253 in order to challenge the district court’s dismissal of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. The district court

determined that certain of Valdez’s claims were procedurally barred and denied

the remainder of Valdez’s claims on the merits. Because Valdez has not made the

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




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        This order is not binding precedent, except under the doctrines of law of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

      On September 19, 1998, a neighbor called police after she heard loud

noises coming from another apartment. The apartment belonged to Lorenza

Juarez, who was away on vacation at the time. When police arrived, they found

Valdez and another man in Juarez’s apartment. The door had been broken and the

apartment appeared to have been ransacked. Valdez was arrested. As he was

searched incident to arrest, a police officer found bags of what appeared to be

drugs in Valdez’s sock. A field test of one of the bags indicated the substance

was cocaine.

      Valdez initially told police that he was a friend of Juarez’s, and that she

had asked him to look after the apartment while she was away. He claimed that

he went to the apartment to investigate a neighbor’s report that it had been broken

into. Later, he changed his story and confessed that he had broken into the

apartment to look for money he thought Juarez and her boyfriend had hidden. He

also stated that he found the bags in the apartment, and admitted they contained

cocaine. A police officer testified that Valdez was advised of his Miranda rights

prior to the interview during which he confessed. However, Valdez maintains

that he was not advised of his Miranda rights until after he confessed.

      Valdez was charged by the State of Colorado (the State) with one count of

criminal mischief, one count of burglary of a dwelling, and one count of

possession of a controlled substance. The State also filed habitual criminal

                                          2
charges. 1

       Valdez was represented through trial by Kevin Flesch. Prior to trial, the

police had obtained a statement from Juarez that Valdez did not have permission

to be in her apartment. However, when the trial was to commence, neither the

State nor the defense could locate Juarez. In subsequent post-conviction

proceedings, the trial court determined that Flesch encouraged Valdez to make

Juarez unavailable for trial because Flesch told Valdez that the State would not be

able to prove its case without her. Juarez’s prior statement to police was not

introduced at trial. Valdez testified on his own behalf, and stated that he had

Juarez’s permission to be in the apartment. The jury found Valdez guilty on the

burglary, mischief, and possession counts. The court adjudged Valdez an habitual

criminal and, pursuant to those enhancements, sentenced him to forty-eight years’

imprisonment on the burglary count and twenty-four years’ imprisonment on both

the mischief and possession counts, to run concurrently with the burglary

sentence.

       Valdez filed a motion for a new trial based on newly discovered evidence

and tendered an affidavit from Juarez. In this affidavit, Juarez stated that her

prior statement was the result of police intimidation, and that she really had asked

Valdez to keep an eye on her apartment but she had not thought to give him a key.


       1
        The Colorado habitual criminal statute enhances the penalties for certain
repeat criminal offenders.

                                          3
The trial court denied the motion for new trial.

      Valdez appealed. 2 The Colorado Court of Appeals affirmed his

convictions, and the Colorado Supreme Court denied Valdez’s petition for Writ of

Certiorari. Valdez then filed a pro se motion for post-conviction relief pursuant

to Colo. R. Crim. P. 35. He raised three claims: his conviction was predicated on

an unconstitutionally obtained confession; he received ineffective assistance of

counsel; and a jury should have made the habitual criminal determination, not a

judge. The trial court dismissed the confession and habitual criminal claims,

finding that those issues were resolved on direct appeal. After an evidentiary

hearing, the trial court vacated Valdez’s convictions on the burglary and mischief

charges because of ineffective assistance of counsel, but left the possession

conviction intact. The court found that Valdez had not demonstrated prejudice

from Flesch’s performance on the possession charge.

      Both Valdez and the State appealed. The Colorado Court of Appeals

affirmed the trial court’s decision and did not reach the merits of Valdez’s cross-

appeal. The Colorado Supreme Court denied Valdez’s petition for a Writ of

Certiorari. The State elected not to re-try Valdez on the burglary and mischief

charges. Valdez then filed a pro se “Motion to Dismiss Possession Count


      2
       Per Valdez’s initial request, the Colorado Court of Appeals appointed
counsel. Valdez successfully moved for the discharge of his first appointed
counsel, and unsuccessfully moved to discharge his second appointed appellate
counsel.

                                          4
Forthwith” in the trial court. The trial court denied this motion “as successive,

groundless and frivolous.” Valdez is currently serving his twenty-four year

sentence for the possession conviction.

      Valdez filed a § 2254 petition in the district court and then filed an

amended petition. In the amended petition, he asserts the following claims:

             Claim One: the evidence on the possession charge should have

      been suppressed because the police lacked probable cause to arrest

      and/or search Valdez;

             Claim Two: Valdez’s confession was not admissible because

      he was not advised of his Miranda rights prior to his confession;

             Claim Three: Valdez received ineffective assistance of counsel

      on the possession charge, and he was denied his right of self-

      representation in post-conviction proceedings;

             Claim Four: Valdez’s Eighth Amendment rights were violated

      because he is incarcerated on a conviction that “has been reversed on

      the grounds of ineffective asst. of counsel . . .”;

             Claim Five: Valdez’s Due Process and Equal Protection rights

      were violated because there was “no probable cause warranting

      trial,” the evidence was insufficient to sustain a conviction, and the

      court was biased against him during post-conviction proceedings.

ROA, Vol. 1 at 97-112. The district court dismissed claims one, four, and five

                                           5
and part of claim three as unexhausted and procedurally barred. It dismissed

Valdez’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 petitioner demonstrates “that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court

denies a habeas petition on procedural grounds and does not reach the prisoner’s

underlying constitutional claims, a COA may issue only when “the prisoner

shows, at least, 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.” Id. 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

                                           6
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 presume that state court findings of fact

are correct, absent clear and convincing evidence to the contrary. 28 U.S.C.

2254(e). If the state court did not address the merits of a claim, we review “the

district court’s resolution of that ground for relief de novo . . . .” Romano v.

Gibson, 239 F.3d 1156, 1163-64 (10th Cir. 2001).

      A state prisoner seeking federal habeas relief must first exhaust available

state court remedies by raising the substance of his or her claims in state court

and invoking one complete round of the state’s appellate review process. 28

U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 845 (1999). If a

claim is procedurally defaulted in state court, a federal court may not consider

that claim unless the petitioner can demonstrate cause and prejudice or that the

failure to consider the claim will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

                                          III

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

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

conclude that Valdez has not demonstrated that reasonable jurists would debate

whether his petition states a valid claim of the denial of a constitutional right and

whether the district court was correct in its procedural rulings. Therefore, we

                                           7
deny Valdez’s application for a COA. We discuss each of Valdez’s claims below.

      Claim One: Illegal Search

      The district court dismissed this claim as procedurally barred. Valdez

argues that he presented his Fourth Amendment claim to the Colorado courts in a

post-trial motion for acquittal after the verdict. This is true. However, Valdez

did not appeal the denial of this motion, nor did he otherwise advance the

substance of his Fourth Amendment argument on direct appeal. Therefore, he did

not exhaust this claim and it is procedurally defaulted. 3

      Valdez argues that all of his procedural defaults should be excused because

he received ineffective assistance of counsel. However, after trial, Valdez was no

longer represented by Flesch. He has made no claim that his appellate counsel

was ineffective. He has not shown cause for his procedural default, nor has he

made a colorable showing of factual innocence. See Beavers v. Saffle, 216 F.3d

918, 922-23 (10th Cir. 2000).

      Claim Two: Miranda Violation

      The Colorado courts resolved this claim on the merits. The trial court did

not credit Valdez’s version of events. Rather, it credited the police officer’s

testimony that Valdez was advised of his rights and signed a waiver before he

confessed. ROA, Vol. 1 at 23. Under AEDPA, Valdez must show by clear and


      3
        The district court did not err by denying Valdez’s request to return to
state court to exhaust this or any of his other procedurally defaulted claims.

                                           8
convincing evidence that this factual determination is incorrect. 28 U.S.C.

2254(e). He presents the following evidence: his Waiver of Rights form signed at

6:10 am; a police report noting the cocaine field test with a time stamp of “[0525

hrs]” and noting Valdez’s execution of the waiver with a time stamp of “[cont.];”

and a police officer’s trial testimony that the waiver was signed “shortly

thereafter 5:25. The exact time would be on the advisement form.” The officer

also testified that Valdez signed the waiver form prior to the interview. ROA,

Vol. 1 at 16-18. The fact that the testifying police officer could not recall the

exact time the advisement form was signed is not clear and convincing evidence

that it was signed after the interview. Further, the time stamps on the police

report are not clear and convincing evidence that the form was signed after the

interview; the report shows only that both the interview and the waiver occurred

after 5:25 a.m. Valdez is not entitled to a COA on this claim.

      Claim Three: Sixth Amendment Violations

      Valdez argues that he was denied effective assistance of counsel on the

possession charge and that he was denied his right of self-representation in post-

conviction proceedings. We disagree with the district court’s conclusion that

Valdez did not exhaust his ineffective assistance of counsel claim. He raised this

claim in his motion for post-conviction relief, and on post-conviction appeal.

However, our differing review of exhaustion does not support the issuance of a

COA because Valdez has not made the required showing on the merits.

                                           9
      In order to establish ineffective assistance of counsel, a defendant must

show deficient performance and prejudice. Strickland v. Washington, 466 U.S.

668, 691 (1984). Valdez argues that once the State trial court determined that

Flesch was ineffective on some charges, it had to conclude that Flesch was

ineffective on all charges. The trial court determined that Flesch’s performance

did not prejudice Valdez on the possession charge because there was significant

credible evidence against him, including his own admission that the substance

found on his person was cocaine. Flesch’s errors related largely to Juarez and the

introduction of evidence that Valdez had a criminal history. The trial court found

that these errors did not likely affect the verdict on the possession charge, and the

Colorado Court of Appeals affirmed.

      Valdez is not entitled to habeas relief because the State courts’

determinations were not contrary to or an unreasonable application of clearly

established federal law. 28 U.S.C. § 2254(d)(1). The Colorado courts correctly

articulated the Strickland standard and did not apply it unreasonably. Contrary to

Valdez’s contention, the United States Supreme Court has not established an “all

or nothing rule” with respect to ineffective assistance of counsel. 4



      4
        Prejudice is presumed when the right to counsel is actually or
constructively denied altogether. United States v. Cronic, 466 U.S. 648, 659
(1984). The right is constructively denied if “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Id. The Colorado courts
did not find this was the case, and this determination is not unreasonable.

                                          10
      The State courts did not address the merits of Valdez’s self-representation

claim, and we review the district court’s dismissal of this claim de novo. The

Constitution does not require states to provide post-conviction review at all.

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Alleged errors in a state post-

conviction proceeding are not cognizable federal habeas claims because “federal

habeas corpus relief does not lie for errors of state law . . . .” Lewis v. Jeffers,

497 U.S. 764 (1990). Therefore, Valdez is not entitled to a COA on this claim.

      Claim Four: Eighth Amendment Violation

      Valdez raised his Eighth Amendment claim for the first time in his federal

habeas petition. This claim is unexhausted and procedurally barred. Further, the

gist of this claim is that Valdez’s possession conviction was the product of

ineffective assistance of counsel. We have already determined that Valdez has

not made the requisite showing on the merits of this issue. See discussion of

Claim Three, supra.

      Claim Five: Probable Cause for Trial, Sufficiency of the Evidence,
      Biased Court

      It is not clear whether Valdez ever challenged the sufficiency of the

evidence at his preliminary hearing. Regardless, Valdez is not entitled to a COA

on this issue because it is not a cognizable federal habeas claim. “[A] conviction

will not be vacated on the ground that the defendant was detained pending trial

without a determination of probable cause.” Gerstein v. Pugh, 420 U.S. 103, 119


                                           11
(1975).

      Valdez raised a claim regarding the sufficiency of the evidence on his

burglary conviction in the trial court. However, he did not challenge the

sufficiency of the evidence on the possession conviction, 5 which is the only

conviction at issue here. Therefore, his sufficiency of the evidence claim is

unexhausted and procedurally barred.

      Valdez is not entitled to a COA on his judicial bias claim because it is not a

ground for habeas relief. Valdez claims that the judge was biased against him

during the post-conviction proceedings. This alleged error in state post-

conviction proceedings has no bearing upon the validity of his conviction.

      Valdez has not shown that reasonable jurists could debate whether the

district court’s procedural rulings are correct and whether his petition states a

valid claim for the denial of a constitutional right. Valdez’s request for a COA is

DENIED and the matter is DISMISSED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge



      5
        Valdez argued that the evidence was insufficient on the burglary charge
because Juarez did not testify at trial. Juarez’s testimony would not have been
helpful to Valdez’s defense of the possession charge because she could not
dispute the testimony that at least one bag of cocaine was found in Valdez’s sock.

                                         12
