                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 20, 2015
                   UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 MICHAEL SALVATORE PARRINO,

              Petitioner - Appellant,

 v.                                                     No. 15-1160
                                               (D.C. No. 1:14-CV-02007-LTB)
 LOU ARCHULETA, and THE                                 (D. of Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.



      Michael Salvatore Parrino, a state prisoner proceeding pro se, requests a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2254 petition for habeas relief. Parrino has not established 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).




      *
         This order is not binding precedent except under the doctrines of law of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.
      Exercising jurisdiction under 28 U.S.C. § 2253(a), we DENY a certificate

of appealability and DISMISS the appeal.

                                  I. Background

      After a jury trial, Parrino was convicted of aggravated robbery, three counts

of first-degree assault of a police officer, first-degree criminal trespass, and

menacing. Parrino is currently serving four consecutive 22-year sentences for the

robbery and assault convictions and two three-year sentences, concurrently with

the consecutive terms, for the trespass and menacing convictions.

      We construe Parrino’s petition liberally because he is not represented by an

attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). He

makes three arguments: (1) ineffective assistance of counsel at the plea bargain

stage due to a financial conflict of interest; (2) ineffective assistance of counsel at

the post-conviction stage; and (3) double jeopardy as to the three counts of assault

on a peace officer.

                                   II. Analysis

      We may grant a COA only if the defendant makes a “substantial showing of

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

whether to grant a COA, we ask whether “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.”



                                          -2-
Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation marks and

citation omitted).

      To prevail on an ineffective assistance of counsel claim, Parrino must show

that “his attorney’s performance ‘fell below an objective standard of

reasonableness’ and that the unreasonably deficient performance resulted in

prejudice.” Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting

Strickland v. Washington, 466 U.S. 668, 688, 691–92 (1984)). Prejudice exists

where “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. (quoting

Strickland, 466 U.S. at 694). The Sixth Amendment right to counsel exists at the

plea-bargaining stage as well as at trial. Padilla v. Kentucky, 559 U.S. 356, 374

(2010).

      Parrino does not meet this standard. He first argues his trial counsel

provided ineffective assistance by refusing to accept a 25-year plea agreement

because counsel would earn more money by proceeding to trial. Accepting the

factual findings of the state court, the district court found that this allegation

lacked support. Among the eight findings cited, the court mentioned that the 25-

year offer had expired before counsel took over the case, and also that it was

Parrino’s family, not his lawyer, who pressured him to go to trial. Based on these

factual findings, Parrino does not satisfy his burden of proving deficient

performance at the plea bargain stage.

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      Parrino also claims ineffective assistance of counsel at the state post-

conviction stage. He seeks an evidentiary hearing to investigate the conduct of

both his state post-conviction counsel and the government during remand

proceedings. Parrino attempts to present new evidence that he did not present in

state court. But AEDPA restricts the power of federal courts to grant evidentiary

hearings in habeas cases. Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011),

federal review of 2254(d)(1) petitions must be limited to the state court record.

Therefore, Parrino’s request must be denied.

      Finally, Parrino presents a double jeopardy claim related to his assault

convictions. We agree with the district court that because he failed to “fairly

present” this claim in state court, he has anticipatorily procedurally defaulted.

Anderson v. Harless, 459 U.S. 4, 6 (1982). Rule 35(c)(3)(VII) of the Colorado

Rules of Criminal Procedure provides that “[t]he court shall deny any claim that

could have been presented in an appeal previously brought or postconviction

proceeding previously brought.” Parrino would be barred from raising this

unexhausted claim in state court.

      Generally, federal courts “do not review issues that have been defaulted in

state court on an independent and adequate state procedural ground, unless the

default is excused through a showing of cause and actual prejudice or a

fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317

(10th Cir. 1998). The petitioner bears the burden of specifically alleging the

                                         -4-
inadequacy of a state procedural law. Fairchild v. Workman, 579 F.3d 1134,

1143 (10th Cir. 2009). Parrino does not argue that Rule 35(c)(3)(VII) lacks an

independent and adequate basis in state law. And even if he could raise a claim

based on a fundamental miscarriage of justice, that claim must fail because

Parrino presents no new evidence of his actual innocence.

                                III. Conclusion

      We agree with the district court that no reasonable jurist could conclude

that Parrino has made a substantial showing of a violation of his constitutional

rights. Accordingly, we DENY his request for a COA and DISMISS this appeal.

We also DENY his motion for permission to proceed in forma pauperis.

                                                   ENTERED FOR THE COURT


                                                   Timothy M. Tymkovich
                                                   Chief Judge




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