                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       March 2, 2007
                                  TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                        Clerk of Court

 W EN DELL TO DD JONES,

       Petitioner - A ppellant,
                                                        No. 06-1248
 v.                                           (D.C. No. 05-CV-353-LTB-PAC)
                                                         (D . Colo.)
 AL ESTEP; THE A TTORNEY
 G EN ER AL O F TH E STA TE O F
 C OLO RA D O ,

       Respondent - Appellee.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-Appellant W endell Todd Jones, a state inmate appearing pro se,

seeks a certificate of appealability (COA) allowing him to appeal from the district

court’s order denying relief on his habeas petition filed pursuant to 28 U.S.C. §

2254. Because M r. Jones has failed to make a “substantial showing of the denial

of a constitutional right,” see id. § 2253(c)(2); Slack v. M cDaniel, 529 U.S. 473,

483-84 (2000), we deny a COA, deny IFP, and dismiss the appeal.

      In 1989, M r. Jones was convicted by a jury of two counts of first degree

murder, attempted first degree murder, first degree kidnaping, and conspiracy.

M r. Jones filed a direct appeal in state court but subsequently moved to dismiss it.
Approximately a year later, M r. Jones filed his first state post-conviction motion,

which was denied, see People v. Jones, No. 96-CA-1935 (Colo. Ct. App. Dec. 17,

1998), and the subsequent petition for certiorari to the C olorado Supreme Court

was rejected. He filed a second state post-conviction motion in 2000, which was

also denied, see People v. Jones, No. 01-CA-1247 (Colo. Ct. App. Aug. 12, 2004),

and his petition for certiorari to the Colorado Supreme Court was similarly

rejected. M r. Jones is currently serving two consecutive life sentences, plus

forty-eight years, in a Colorado penitentiary.

      The parties are familiar with the facts which were exhaustively detailed in

the magistrate’s very complete report and recommendation, see Jones v. Estep,

05-CV-00353, 2006 W L 1313978, at *2-25 (D. Colo. M ay 11, 2006), and will not

be repeated here.

      M r. Jones filed his timely habeas petition on February 10, 2005. 1 In the

petition, M r. Jones argued: (1) that his due process rights were violated by the

admission of evidence of other crimes, wrongs, or acts, by the admission of

identification evidence based on suggestive pre-trial identification procedures,

and by the admission of mugshots of M r. Jones, (2) that his trial counsel was



      1
         Although a § 2254 petition must normally be filed within one year after
the judgment of conviction, see 28 U.S.C. § 2244(d)(1)(A), the statute of
limitations is tolled during the time a properly filed state post-conviction motion
is pending, see id. § 2244(d)(2). In this case, M r. Jones filed a state post-
conviction motion, and then another one, which resulted in sufficient tolling to
make his federal habeas petition timely.

                                         -2-
ineffective for failing to object to the introduction of such evidence, (3) that his

confrontation and due process rights were violated when the trial court restricted

the cross-examination of a M r. Reagor, (4) that the trial court failed to adequately

advise him of his right to testify in his own defense, (5) that his trial counsel was

ineffective for (a) failing to exercise a peremptory challenge to excuse a biased

juror, (b) stating in his opening statement that a M r. Shanklin had already been

convicted of the charged offenses, (c) failing to move for a mistrial after a

prosecution witness testified that M r. Jones exercised his right to remain silent

and asked for an attorney, and (d) failing to conduct an adequate pre-trial

investigation, and (6) that his due process rights were violated when the trial

court failed to transmit the complete trial record to the state court of appeals.

      Although the respondents argued that two of M r. Jones’s claims should be

dismissed for failure to exhaust in state court, see 28 U.S.C. § 2254(b); Dever v.

Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994), the district court,

adopting the magistrate’s extensive recommendation, declined to address the

exhaustion question and instead denied the claims based on AEDPA 2 review, or

where appropriate, on the merits, see 28 U.S.C. § 2254(b)(2); M oore v.

Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002). The district court then denied

M r. Jones a COA and declined to appoint appellate counsel.



      2
          Antiterrorism and Effective Death Penalty Act.


                                          -3-
      W ith respect to M r. Jones’s claims regarding introduction of the bad acts

evidence, witness identifications, and mugshots, the district court determined that

the evidence was either admitted for a proper, probative purpose or that the

evidence was not so prejudicial as to render “the trial so fundamentally unfair as

to constitute a denial of federal constitutional rights.” See M oore v. M arr, 254

F.3d 1235, 1246 (10th Cir. 2001) (internal quotations and citation omitted). W ith

regard to the first ineffective assistance of counsel claim, the district court found

that trial counsel’s failure to object to introduction of the evidence was a strategic

decision in support of the defense theory that M r. Jones had been misidentified.

See Strickland v. W ashington, 466 U.S. 668, 689 (1984). The district court found

that M r. Jones was afforded sufficient opportunity to cross-examine M r. Reagor

and that M r. Reagor’s credibility was indeed impeached, resulting in no violation

to M r. Jones’s confrontation rights. See Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986). W ith regard to M r. Jones’s right to testify, the district court

concluded that the trial court had in fact advised M r. Jones of the right and that it

had no further obligation to inquire as to why M r. Jones chose not to testify. See

United States v. Janoe, 720 F.2d 1156, 1161 (10th Cir. 1983). W ith regard to the

final ineffective assistance of counsel claims, the district court concluded that

most of trial counsel’s decisions w ere based on reasonable trial strategy, and that,

in any event, M r. Jones failed to demonstrate that trial counsel’s actions were

objectively unreasonable or that he was prejudiced as a result. See Strickland,

                                          -4-
466 U.S. 687-88, 691. Finally, the district court determined that M r. Jones could

show no prejudice from the trial court’s failure to transmit the complete record,

because the state appellate court accepted M r. Jones’s account of the facts in lieu

of the full record.

      Under AEDPA we may not issue a CO A unless “the applicant has made a

substantial showing of the denial of a constitutional right.” Slack, 529 U.S. at

483. In other words, a COA will only issue if an applicant can show “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. at 483-84. However, as the

Suprem e Court explained in M iller-El v. Cockerell, 537 U.S. 322, 336 (2003), w e

are required to “look to the District Court’s application of A EDPA to petitioner’s

constitutional claims and ask whether that resolution was debatable amongst

jurists of reason.” Thus, we must ask whether the district court properly applied

AEDPA in evaluating the state court rulings, 28 U.S.C. § 2254(d), and whether it

properly applied the law on those claims that it chose to evaluate on the merits

without AEDPA deference. After review, we conclude that the district court’s

resolution of M r. Jones’s claims is not reasonably debatable.

      W e DENY a COA, DENY IFP, and DISM ISS the appeal. All pending




                                         -5-
motions are denied. W e remind M r. Jones that the fee for this appeal remains

due.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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