                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                              May 1, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
HAZHAR A. SAYED,

      Petitioner - Appellant,

v.                                                          No. 17-1096
                                                   (D.C. No. 1:16-CV-00926-RBJ)
TRAVIS TRANI; THE ATTORNEY                                   (D. Colo.)
GENERAL OF THE STATE OF
COLORADO.

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Hazhar A. Sayed, a Colorado prisoner appearing pro se,1 appeals the district

court’s order dismissing his application for habeas corpus and declining to issue a

certificate of appealability (COA). We agree that Sayed hasn’t made a substantial

showing of the denial of a constitutional right, so exercising jurisdiction under 28




      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
        Because Sayed acts pro se, we hold his pleadings to “a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). That said,
we can’t “assume the role of advocate” for him. Id.
U.S.C. § 2253(a), we conclude that Sayed isn’t entitled to a COA and dismiss this

appeal.

                                   BACKGROUND

       In 2005, prosecutors in Broomfield County, Colorado, charged Sayed with

sexual assault and second-degree kidnapping. He pleaded not guilty and stood trial

twice. The jury at his first trial found him guilty of unlawful sexual contact, a lesser

non-included offense of sexual assault, but couldn’t reach a unanimous verdict on

either charged offense (the jury declared itself “deadlocked” on those charges). Id at

46. At Sayed’s second trial, though, the jury found him guilty of sexual assault and

not guilty of kidnapping. The sentencing court then merged Sayed’s sexual-assault

and unlawful-sexual-contact convictions before imposing a term of twenty-four years

to life in prison.

       In 2007, the Colorado Court of Appeals affirmed Sayed’s sentence on direct

appeal (he hadn’t challenged the conviction itself), and the Colorado Supreme Court

denied his petition for certiorari. In 2008, and again in 2012, Sayed filed two pro se

motions—the latter amended by counsel—collaterally attacking his conviction on the

ground that his trial counsel and direct-appeal counsel had rendered ineffective

assistance. See Colo. R. Crim. P. 35(c)(2), (3). The post-conviction court denied both

motions without a hearing, finding that Sayed’s ineffective-assistance claims failed

both prongs of the Strickland test. See Strickland v. Washington, 466 U.S. 668, 694

(1964) (requiring proof of both deficient performance and resulting prejudice to

establish a Sixth Amendment violation). The Colorado Court of Appeals affirmed the

                                            2
post-conviction court’s judgment, and the Colorado Supreme Court again denied

certiorari.

       On April 25, 2016, Sayed (now residing at the Colorado State Penitentiary in

Cañon City, Colorado) started the current action.2 Acting pro se, he applied for a writ

of habeas corpus under 28 U.S.C. § 2254, alleging several defects in the state-court

proceedings against him. Sayed claimed (1) that his trial counsel had rendered

ineffective assistance by failing (a) to argue that double-jeopardy principles barred

his sexual-assault conviction and (b) to move for a judgment of acquittal on the

sexual-assault charge because of insufficient evidence, (2) that his appellate counsel

had rendered ineffective assistance by failing to present a double-jeopardy argument

on direct appeal, and (3) that he should have received a new trial after one of the

prosecution’s witnesses recanted.

       The district court denied Sayed’s application without a hearing, concluding

that none of the alleged defects warranted habeas relief, and declined to issue a COA.

The court also certified, according to 28 U.S.C. § 1915(a)(3), that any appeal from its

order wouldn’t be taken in good faith, so it ordered Sayed, if he chose to appeal,

either to pay the full, $505 appellate filing fee or to move this court for leave to

proceed in forma pauperis.

       2
         Over the past eight years, Sayed has filed five other cases in this court, all of
which we dismissed: a habeas application challenging a different state-court
conviction (for attempted felony menacing), Sayed v. Jones, No. 13-1035 (Apr. 22,
2013), and four prison-condition appeals, Sayed v. Broman, No. 15-1157 (10th Cir.
Jan. 5, 2016); Sayed v. Courtney, No. 15-1248 (10th Cir. Sept. 15, 2015); Sayed v.
Broman, No. 14-1499 (10th Cir. Dec. 15, 2014); and Sayed v. Profitt, No. 10-1491
(10th Cir. Mar. 18, 2011).
                                            3
       On March 13, 2017, Sayed, still acting pro se, timely filed a notice of appeal

challenging the district court’s dismissal of his claims. He requested leave to

prosecute the appeal in forma pauperis, declaring that he was indigent and unable to

afford the filing fee. In April, Sayed then filed a “Combined Opening Brief and

Application for Certificate of Appealability” asking us to grant him the relief that the

district court had denied.

                                     DISCUSSION

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) curbs

our jurisdiction to review state prisoners’ habeas proceedings. 28 U.S.C. § 2253; see

Miller-El v. Cockrell, 537 U.S. 322, 335–38 (2003). Denied habeas relief in district

court, an applicant must first seek—and secure—a COA from this court. Miller-El,

537 U.S. at 335–36. A COA “may issue only . . . if the applicant has made a

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

       The showing needed to satisfy § 2253(c) depends on whether the district court

resolved a particular claim on the merits or on procedural grounds. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000). If the district court relied on the merits, then

the applicant “must demonstrate that reasonable jurists would find [its]

assessment . . . debatable or wrong.” Slack, 529 U.S. at 484. If the district court relied

on procedure, however, then the applicant must show both (1) “that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling”

and (2) “that jurists of reason would find it debatable whether the [habeas

application] states a valid claim of the denial of a constitutional right.” Id.

                                             4
      With these two approaches in mind, we address the substance of Sayed’s

appeal. For each of the three claims raised in his habeas application, we conduct a

two-step analysis. First, we determine how the district court resolved the particular

claim—on the merits or on procedural grounds? Then, using the § 2253(c) approach

befitting that resolution, we assess whether Sayed is entitled to a COA on that claim.

   A. Claim One: Trial and Appellate Counsel Rendered Ineffective Assistance
      in Failing to Make a Double Jeopardy Argument.

      In claims (1)(b) and (2) of his habeas application, Sayed argues that because

neither his trial counsel nor his appellate counsel raised double jeopardy as a bar to

his sexual-assault conviction, both rendered ineffective assistance. Sayed made the

same ineffective-assistance claims in post-conviction proceedings, but the Colorado

Court of Appeals determined that the claims failed Strickland’s deficient-

performance prong. The state court concluded that, for two reasons, neither counsel

had erred in failing to assert a double-jeopardy challenge: (1) unlawful sexual contact

is a lesser non-included—rather than a lesser-included—offense of sexual assault, so

Sayed’s re-prosecution for sexual assault following his conviction for unlawful

sexual contact didn’t implicate double jeopardy, and (2) even assuming that unlawful

sexual contact is a lesser-included offense, when a jury deadlocks on a greater charge

but convicts on a lesser-included charge, the hung-jury rule trumps the implied-

acquittal rule, allowing retrial on the greater charge.

      The district court found that Sayed had fairly presented this claim to the state’s

intermediate court of appeals, thus satisfying § 2254(b)(1)’s exhaustion requirement.


                                            5
See 28 U.S.C. § 2254(b)(1)(A). So the district court turned to the merits. Applying

§ 2254(d)(1), the court asked whether the Colorado Court of Appeals’ conclusion

was contrary to, or involved an unreasonable application of, clearly established

federal law as determined by the Supreme Court.

      The district court acknowledged the general rule that a defendant convicted of

a lesser-included offense can’t be tried for a greater offense without twice being put

in jeopardy for the same offense. Brown v. Ohio, 432 U.S. 161, 168–69 (1977). And

under the implied-acquittal rule, jeopardy for both offenses ends when a jury, given a

full opportunity to return a verdict on the greater charge, finds the defendant guilty of

a lesser-included offense—impliedly acquitting him of the greater. Price v. Georgia,

398 U.S. 323, 329 (1970). But unlike an acquittal, a hung jury doesn’t terminate the

original jeopardy, and it doesn’t bar retrial. Richardson v. United States, 468 U.S.

317, 326 (1984).

      None of these rules, the district court found, controlled Sayed’s particular

situation—retrial on a greater charge after the jury expressly states that it can’t agree

on that charge but returns a guilty verdict on a lesser charge. And in the absence of

clearly established federal law, AEDPA precluded the court from granting habeas

relief. 28 U.S.C. § 2254(d)(1).

      What’s more, the district court noted, Sayed had raised double jeopardy in the

context of ineffective-assistance-of-counsel claims, so he had to show that the

Colorado Court of Appeals’ application of Strickland met § 2254(d)(1)’s

unreasonableness standard. But given the likelihood that any double-jeopardy

                                            6
challenge would have succumbed to Colorado’s hung-jury rule, Sayed had failed to

show that the Colorado Court of Appeals’ application of Strickland was wrong, much

less objectively unreasonable.

      The district court rejected Sayed’s double-jeopardy claim on the merits, so to

get a COA to challenge its ruling, Sayed needs to show that reasonable jurists would

find the court’s assessment of the claim debatable or wrong. Slack, 529 U.S. at 484.

But we see no room for debate in the district court’s application of § 2254(d)(1) or its

conclusion that, at the least, “fairminded jurists could disagree” about the correctness

of the Colorado Court of Appeals’ Strickland analysis. Harrington v. Richter, 562

U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

      Sayed’s appellate brief doesn’t persuade us otherwise. In urging us to grant a

COA, Sayed asserts, for the first time, that collateral estoppel barred his retrial for

sexual assault—and, by extension, that the district court erred in not liberally

construing his double-jeopardy argument to include a collateral-estoppel component.

See Ashe v. Swenson, 397 U.S. 436, 443 (1970) (explaining that the doctrine of

collateral estoppel embodied in the guarantee against double jeopardy precludes the

re-litigation, in a second trial for a separate offense, of any issue necessarily decided

by a prior judgment of acquittal). But the district court did liberally construe Sayed’s

pleadings, and it fully addressed his double-jeopardy ineffective-assistance argument.

That argument can’t reasonably be read to state a valid collateral-estoppel claim, so

the liberal-construction rule didn’t require the district court to divine one. See Hall,

935 F.2d at 1110. And because Sayed didn’t present his collateral-estoppel claim to

                                            7
the district court, we won’t consider it here. United States v. Viera, 674 F.3d 1214,

1220 (10th Cir. 2012).

      Accordingly, we decline to issue a COA.

   B. Claim Two: Trial Counsel Rendered Ineffective Assistance in Not Moving
      for a Judgment of Acquittal Based on Insufficient Evidence.

      In his initial habeas application, Sayed argues in claim (1)(b) that his trial

counsel rendered ineffective assistance in failing to move for a judgment of acquittal

based on insufficient evidence. The Colorado Court of Appeals considered and

rejected this claim in post-conviction proceedings, noting, after a review of the

record, that defense counsel at Sayed’s second trial “did move for a judgment of

acquittal on sufficiency of the evidence grounds.” R. at 32.

      The district court found that, because Sayed had presented this argument to the

Colorado Court of Appeals, he’d exhausted available state-court remedies and

satisfied § 2254(b)(1). In a later pleading, though, Sayed asked to withdraw this

claim, conceding that the trial transcripts showed his attorney moving, because of

insufficient evidence, for a judgment of acquittal. The district court agreed and

dismissed the claim without further analysis.

      Sayed doesn’t address this issue in his appellate brief, and we doubt that

reasonable jurists could debate the district court’s resolution of the issue, so we

decline to issue a COA. Slack, 529 U.S. at 484.




                                            8
   C. Claim Three: Newly Discovered Evidence Entitled Sayed to a New Trial.

       Sayed argues, in claim (3) of his habeas application, that he was entitled to a

new trial because a prosecution witness had recanted her trial testimony “surrounding

critical/key elements of the offense” and that the state courts had erred in denying his

request for one. R. at 13.3 Sayed had raised the new-evidence issue in state post-

conviction proceedings (though apparently not on direct appeal), but the Colorado

Court of Appeals upheld the trial court’s denial of his motion for a new trial. Sayed,

according to the state appellate court, hadn’t shown that “the allegedly new

evidence” of the witness’s recantation (1) couldn’t have been discovered with due

diligence before trial, (2) was material, “not merely cumulative or impeaching” of the

witness’s testimony at the second trial, or (3) would probably have produced an

acquittal. Id. at 40.

       The district court, applying AEDPA’s directive that a federal court entertain a

state prisoner’s habeas application “only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States,” concluded that

Sayed’s new-evidence claim provided no basis for habeas relief. 28 U.S.C. § 2254(a).

Instead, the district court deemed the argument “a ‘freestanding’ claim of actual

innocence,” unconnected to any independent constitutional violation at his trial. R. at


       3
        Sayed later asserted, in reply to the respondents’ argument that claim (3)
states no federal constitutional violation, that the state courts’ refusal to grant him a
new trial implicated his Fourteenth Amendment right to due process. Specifically, he
alleged, the prosecution had committed a Brady violation in failing to disclose the
“exculpatory evidence” of the witness’s recantation. R. at 298; see Brady v.
Maryland, 373 U.S. 83, 87 (1963).
                                               9
250–51 (citing Herrera v. Collins, 506 U.S. 390, 400–01 (1993) (“Few rulings would

be more disruptive of our federal system than to provide for federal habeas review of

freestanding claims of actual innocence.”)). So the court dismissed claim (3) “for

failure to state a cognizable claim for federal habeas corpus relief.” Id. at 251.

      Sayed’s attempt to revive the claim by asserting, in a motion to reconsider,

that claim (3) alleges an independent due-process violation didn’t sway the district

court. Whether to grant a new trial is a matter of state law, so to the extent that Sayed

asserted error in the state courts’ denial of his motion for a new trial, according to the

district court, he failed to state a federal claim. And to the extent that Sayed linked

his new-evidence claim to a Brady violation, the court reasoned that the claim was

procedurally barred.

      Sayed never raised a Brady claim in his state-court appeal or post-conviction

proceedings, so under Colorado law, he has forfeited the claim. See Colo. R. Crim. P.

35(c)(3)(vii) (mandating the dismissal of “any claim that could have been presented”

in an earlier appeal or post-conviction proceeding). And because the Colorado courts

would find any future Brady claim procedurally barred, the district court concluded

that an “anticipatory procedural bar” had occurred. R. at 321. To secure habeas

review of the Brady claim now, the court noted, Sayed needed to show cause for the

default and prejudice from the asserted constitutional violation—unless, that is,

failure to consider his claim would result in a fundamental miscarriage of justice. Yet

Sayed, according to the district court, demonstrated neither cause nor prejudice. Nor

did the court find habeas review necessary to correct a miscarriage of justice, for

                                           10
evidence of the witness’s (alleged) recantation was not so persuasive that, more

likely than not in light of the new evidence, any reasonable juror would have

reasonable doubt about Sayed’s guilt.

       This dismissal relies on procedural grounds, so to get a COA challenging it,

Sayed must show both (1) that jurists of reason would find the court’s procedural

ruling debatable and (2) that jurists of reason would debate whether Sayed stated a

valid claim of the denial of a constitutional right. Slack, 529 U.S. at 484. Here, our

inquiry begins and ends with the first prong.

       In his appellate brief, Sayed challenges the district court’s conclusion that his

Brady claim is procedurally barred. He argues that his “initial-review postconviction

counsel should have posted a challenge under Brady” and that, under Martinez v.

Ryan, 566 U.S. 1, 8–9 (2012), her error in failing to do so excused the procedural

default and required the district court to reach the merits of his Brady claim.

Applicant’s Opening Br. at 3(j). But Sayed misunderstands Martinez’s holding.

       There, Arizona law prevented Martinez (or anyone else) from presenting an

ineffective-assistance claim on direct appeal, so collateral proceedings provided his

first chance to argue ineffective assistance at trial. Martinez, 566 U.S. at 4, 8. In this

context, the Court labeled the proceedings “initial-review collateral proceedings.” Id.

at 8. In Martinez’s initial-review collateral proceedings, though, his post-conviction

counsel didn’t raise any ineffective-assistance claims. Martinez, 566 U.S. at 4–5.

Thus, when Martinez’s new post-conviction counsel filed a second request for post-

conviction relief alleging that he’d received ineffective assistance at trial, the state

                                            11
courts denied relief on the theory that Martinez should have made these arguments in

the first phase of the collateral proceedings. Id. at 6–7.

       Martinez then sought federal habeas review of his ineffective-assistance-of-

trial-counsel claims. Id. at 7. He acknowledged that the state courts had denied these

claims based on a well-established state procedural rule and that the procedural-

default doctrine ought to bar federal-court review, but he claimed that his first post-

conviction counsel’s ineffectiveness had caused the default, allowing the federal

courts to consider the merits. Id. The federal district court in Arizona, and later the

Ninth Circuit, rejected Martinez’s argument. Id. at 7–8. Noting the general rule that

the Constitution provides no right to counsel in a collateral proceeding, these courts

reasoned that any errors by Martinez’s initial post-conviction attorney didn’t

establish cause for the procedural default. Id. at 7–8.

       The Supreme Court granted review to temper the broad statement “that an

attorney’s ignorance or inadvertence in a postconviction proceeding does not qualify

as cause to excuse a procedural default.” Id. at 9. It added “a narrow exception” for

attorney errors in initial-review collateral proceedings for claims of ineffective

assistance at trial. Id. at 9, 15. In all but those limited circumstances, though, the

Court stressed that the general rule applies, covering “attorney errors in any

proceeding beyond the first occasion the State allows a prisoner to raise a claim of

ineffective assistance at trial.” Id. at 16.

       Unlike Arizona, Colorado permits defendants to raise, on direct appeal, claims

of ineffective assistance at trial—though failure to bring these claims on direct appeal

                                               12
doesn’t forfeit post-conviction review. See Colo. R. Crim. P. 35(c)(3)(VIII) (“[T]he

court shall not deny a postconviction claim of ineffective assistance of trial counsel

on the ground that all or part of the claim could have been raised on direct appeal.”).

State post-conviction proceedings, then, weren’t the “initial-review collateral

proceedings” central to the Martinez Court’s reasoning. Further, Sayed seems to

argue that he didn’t discover the witness’s recantation until after trial, so his claim

doesn’t implicate “the bedrock principle” of effective assistance of counsel at trial.

Martinez, 566 U.S. at 12 (“A prisoner’s inability to present a claim of trial error is of

particular concern when the claim is one of ineffective assistance of counsel.”).

These distinctions are enough, in our view, to conclude that the general rule, not the

Martinez exception, applies here so that any error in Sayed’s post-conviction

counsel’s failure to present a Brady claim does not establish cause to excuse the

procedural default.

      Accordingly, “a plain procedural bar” to Sayed’s Brady claim exists, and the

district court correctly invoked it. Slack, 529 U.S. at 484. No reasonable jurist could

conclude “either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further,” id., so we deny a COA.

                                      *     *      *

      Last, we address Sayed’s motion for leave to proceed on appeal in forma

pauperis. The attached statement from Sayed’s prison account shows an available

balance of $258.93, less than the $505 cost of filing an appeal, so using our authority



                                            13
under 28 U.S.C. § 1915(a)(1), we grant the motion and allow Sayed to appeal without

prepaying the Tenth Circuit filing fee.

                                   CONCLUSION

      For the reasons stated above, we decline to issue a COA on any of the three

issued raised in Sayed’s habeas application.


                                           Entered for the Court


                                           Gregory A. Phillips
                                           Circuit Judge




                                          14
