                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       March 28, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 SALVADOR JOSEPH LAFAUCI,

              Petitioner - A ppellant,                   No. 06-7106
       v.                                             (E. D. Oklahoma)
 REGINALD HINES, W arden,                       (D.C. No. 04-CV -00004-FHS)

              Defendant - Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Salvador LaFauci was convicted in Oklahoma state court on charges of

robbery by force or fear, first-degree burglary, and making an obscene phone call.

He filed an application in the United States District Court for the Eastern District

of Oklahoma seeking relief under 28 U.S.C. § 2254. The court denied the

application and his request for a certificate of appealability (COA). See

28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of § 2254 motion).

On January 16, 2007, he filed with this court an application for a COA. It

contends that (1) because the victim was w ell known, the venue of the trial should

have been changed; (2) the evidence to convict him was insufficient; (3) he was

denied due process of law; (4) the victim’s identification of him at trial was

tainted by a pretrial show-up arranged by law-enforcement officers; (5) the
district court erred in not giving an alibi instruction; (6) his counsel inadequately

represented him; (7) his convictions on both robbery and burglary charges

violated his double-jeopardy rights; and (8) his sentence is excessive.

      W e deny a COA and dismiss the appeal.

I.    B ACKGR OU N D

      On M arch 14, 2000, a male intruder entered Virginia Reheard’s home.

W hile she was lying in bed, he opened her bedroom door and turned on the light,

saying, “If you don’t give me all of your money, I’m going to kill you.” R. Vol. 4

at 12. M s. Reheard reached for a pistol under her pillow, but a struggle ensued

and the intruder disarmed her. W hen she informed the assailant that she had

money in her kitchen, he dragged her down a 40-foot hallway and forced her to

give him three bank bags containing coins and bills. At one point he grabbed her

and she tried to strike him back. Her heart monitor fell to the floor and the

assailant fled. During these events several lights were on in the house, so

M s. Reheard had a clear view of the assailant’s face.

      After the attack M s. Reheard received several obscene phone calls. She

complained to police, telling them that the caller’s voice sounded similar to the

intruder’s. The calls were ultimately traced to an apartment occupied by

M r. LaFauci, M ichelle Lee, and Jeremy Jenkins. Officer Ken Long interviewed

M s. Lee by telephone and at work. She provided information incriminating

M r. LaFauci and signed a consent form to search the apartment. A search of

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M r. LaFauci’s room revealed one of M s. Reheard’s bank pouches. M r. LaFauci,

who was at the apartment at the time, was arrested. The officers found in his

billfold an address label with M s. Reheard’s phone number and address written on

it.

      W hile M r. LaFauci was in custody, Officer Long called M s. Reheard and

requested her to come to the Sheriff’s office to view a lineup. The office was in

the same building as the jail. W hen M s. Reheard arrived, she waited in the lobby

area. Long was with M r. LaFauci in the building’s office section, but proceeded

to take him to the jail. He had not been informed that M s. Reheard had arrived,

and his path with M r. LaFauci brought them to the lobby. Upon seeing the two

men, M s. Reheard stood up and exclaimed, “[T]hat’s him!” R. Vol. 4 at 32.

Despite this identification she was asked to view a photographic lineup. The

array contained, apparently by accident, tw o different pictures of M r. LaFauci.

W hen M s. Reheard told Long about the duplication, she was instructed to circle

the one that she thought most resembled the intruder.

      At trial M s. Reheard identified M r. LaFauci as the intruder. Despite the

testimony of a witness who claimed that he was elsewhere on the night of the

offense, M r. LaFauci was convicted. He was sentenced to 51 years’

imprisonment.

II.   D ISC USSIO N




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      A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing 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. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, an applicant must

show that the district court's resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision 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).

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the [Supreme] Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that

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      principle to the facts of the prisoner’s case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (citations and internal

quotation marks omitted). Therefore, for those of M r. LaFauci’s claims that were

adjudicated on the merits in state court, “A EDPA's deferential treatment of state

court decisions must be incorporated into our consideration of [his] request for

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      W e need not address the applicant’s assertions that (1) he should have been

granted a change of venue or (2) the evidence at trial was insufficient to convict

him, because they were not raised in his habeas application before the district

court. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (claims raised

for the first time on appeal are deemed to be w aived). M oreover, M r. LaFauci’s

general contention that (3) his due-process rights were violated fails to provide

sufficient particularity for us to determine whether he has a claim. See Fogle v.

Pierson, 435 F.3d 1252, 1263 n.7 (10th Cir. 2006) (“Pro se status does not relieve

the plaintiff of the burden of alleging sufficient facts on which a recognized legal

claim could be based. Conclusory allegations without supporting factual

averments are insufficient to state a claim on which relief can be based.” (ellipsis,

brackets and internal quotation marks omitted)).




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       As to the preserved claims, no reasonable jurist could dispute the district

court’s cogent analysis rejecting the assertions that (4) the victim’s in-court

identification of M r. LaFauci w as tainted by an impermissibly suggestive show-

up; (5) the trial court denied him due process by not giving a specific jury

instruction regarding alibi witnesses; (6) his counsel was ineffective in not

requesting an alibi jury instruction; (7) his double-jeopardy rights were violated;

and (8) his sentence was excessive.

IV .   C ON CLU SIO N

       W e therefore deny a COA and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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