                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           June 24, 2005
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

 TIMOTHY VIALPANDO,

           Petitioner-Appellant,

 v.                                                      No. 04-1229
                                                      (D.C. No. 99-M-1559)
 RICHARD SOARES and THE                                    (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

           Respondents-Appellees.


            ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


          Timothy Vialpando requests a certificate of appealability (“COA”) to

appeal the denial of his 28 U.S.C. § 2254 habeas petition. 1 For substantially the



      Vialpando’s petition was filed after April 24, 1996, the effective date of the
      1

Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Vialpando 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,
                                                                        (continued...)
same reasons set forth by the district court, we DENY Vialpando’s request for a

COA and DISMISS.

        Vialpando was charged with sexual assault on a child by use of force,

intimidation, or threat, and was convicted by a jury of the lesser included offense

of sexual assault on a child. After Vialpando’s convictions were upheld on direct

appeal, he filed a timely motion for post-conviction relief under Colorado Rule of

Criminal Procedure 35(c), which was denied. The Colorado Court of Appeals

upheld the denial of Rule 35(c) relief, and Vialpando did not appeal this claim to

the Colorado Supreme Court. Vialpando bases his claim for habeas relief on his

contention that he was denied effective assistance of counsel when his trial

counsel pursued a strategy that resulted in a conviction on a lesser charge, which

carried the same life sentence as conviction on the greater charge because of the

operation of Colorado’s habitual offender sentencing statute. He contends the

only purpose of this strategy was to avoid the use of this conviction as an

aggravator in his pending death-penalty prosecution. Vialpando concedes that his

claim is procedurally barred, but claims that he can show cause and prejudice. 2

   1
    (...continued)
484 (2000) (quotations omitted). Vialpando has contemporaneously filed an
appeal of a separate habeas denial challenging his conviction for sexual assault on
a child and sexual assault in the first degree, No. 04-1230, which is the subject of
an order on this same date.
   2
       Vialpando also asserts that the district court abused its discretion in failing to
                                                                          (continued...)

                                           -2-
Despite the procedural default, the district court evaluated Vialpando’s ineffective

assistance of counsel claim on the merits under § 2254(e)(1), and held that the

state court’s resolution of Vialpando’s ineffective assistance of counsel claim was

not contrary to, or an unreasonable application of Strickland v. Washington, 466

U.S. 668 (1984). Moreover, the court below explained that:

       The Rule 35(c) hearing judge understood trial counsel’s decision to
       be one of strategy. Defense counsel was “making a pitch to the jury
       for leniency, to find him guilty of some lesser charge, [which] is a
       far different thing than pleading guilty.”

       Before us, Vialpando contends the district court erred in applying

Strickland because effective assistance of counsel can only be based on what is

best in the case at hand, not, absent the client’s specific consent, on what might

benefit the client in another proceeding. In evaluating this claim the district court

specifically found that:

       The record does not support the conclusion that this ruling was
       contrary to, or involved an unreasonable application of federal law,
       or was based on an unreasonable determination of the facts in light of
       the evidence presented to the state court. The court applied the
       correct legal standard after hearing from Vialpando and his counsel.


   2
     (...continued)
hold an evidentiary hearing. Although a hearing is required “[u]nless the motion
and the files and records of the case conclusively show that the prisoner is
entitled to no relief,” § 2255, we will not disturb the trial court’s decision unless
we have a “definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991). The
district court’s decision is not such a clear error.

                                          -3-
       The court permitted Vialpando to testify about all aspects of his
       proceedings . . . . Since the Rule 35(c) hearing was for motions filed
       in two separate cases, the court learned that not only was Vialpando
       facing the death penalty at the time of his trial in Case No.
       86CR2471, but he had already been sentenced as a habitual criminal
       to life imprisonment in 86CR2454. Finally, the court heard
       Vialpando’s testimony, which, itself, suggests that the pending death
       penalty case was of primary concern to Vialpando, as well as his
       lawyer. The court reached the conclusion that trial counsel was an
       effective advocate under all the circumstances.

       Even if a procedural bar did not apply, we agree with the district court that

Vialpando benefitted from reasonable and appropriate assistance of counsel.

After examining the record on appeal,   3
                                            we conclude that the state court’s

resolution of Vialpando’s claim of ineffective assistance of counsel was not

contrary to, or did it involve an unreasonable application of federal law.

       Under AEDPA, if a claim is adjudicated on the merits in state court, we



   3
     Even were we to review his claim de novo, the record makes it clear that his
counsel’s conduct did not undermine “the proper functioning of the adversarial
process [such] that the trial cannot be relied on as having produced a just result.”
Stickland , 466 U.S. at 686. Beyond the issues highlighted by the Rule 35(c) court
and the district court, the record shows that trial counsel both attempted to
establish the identity defense, and to undermine the credibility of the victim
overall. As part of this strategy, the defense counsel brought out prior
inconsistent statements of the victim contradicting her trial testimony, specifically
that she told others that she engaged in sexual activity with Vialpando voluntarily.
Choosing to incorporate this tactic into the overall defense strategy does not
render the strategic choice unreasonable, especially in light of the collateral
consequences in his pending death penalty trial that would have resulted from
conviction on the greater offense. Additionally, at the time of the trial for this
offense, Vialpando was already serving one life sentence as a habitual criminal
offender.

                                            -4-
will grant habeas relief only if that adjudication 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 “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). After

careful review of Vialpando’s application, the district court’s order denying

relief, and the material portions of the record on appeal, we conclude that

Vialpando’s claims are without merit. Accordingly, because Vialpando has failed

to make “a substantial showing of the denial of a constitutional right,” his request

for a COA is DENIED and the appeal is      DISMISSED .

                                                ENTERED FOR THE COURT


                                                Carlos F. Lucero
                                                Circuit Judge




                                          -5-
