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

                              FOR THE TENTH CIRCUIT                           February 13, 2017
                          _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court


GARY GILBERT SALAZAR,

      Petitioner - Appellant,

v.                                                            No. 16-1358
                                                     (D.C. No. 1:16-CV-00935-LTB)
STEVEN GREEN; CYNTHIA H.                                        (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.

                          _________________________________

                                       ORDER
                          _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

       This matter is before the court on the appellant’s petition for panel and en banc

rehearing. See Fed. R. App. P. 35 and 40. Upon consideration, the request for panel

rehearing is granted in part and for the limited purpose of amending one sentence of the

Order issued originally on January 13, 2017. The amended Order Denying Certificate of

Appealability is attached to this order. The clerk is directed to file the amended decision

effective the date of this order.
       In addition, the petition was circulated to all the judges of the court who are in

regular active service. As no judge on the original panel and no judge in regular active

service requested that the court be polled, the request for en banc rehearing is denied.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                              2
                                                                               FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         January 13, 2017
                            FOR THE TENTH CIRCUIT
                        _________________________________              Elisabeth A. Shumaker
                                                                           Clerk of Court
GARY GILBERT SALAZAR,

      Petitioner - Appellant,

v.                                                         No. 16-1358
                                                  (D.C. No. 1:16-CV-00935-LTB)
STEVEN GREEN; CYNTHIA H.                                     (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.
                      _________________________________

           ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                 _________________________________

      Gary Salazar, a state prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2254 petition. We deny a COA and dismiss the appeal.

                                           I

      Following a jury trial, Salazar was convicted in Colorado state court of

conspiracy to commit first-degree murder, two counts of felony menacing, and

possession of a weapon by a previous offender. On direct appeal, the Colorado Court

of Appeals affirmed Salazar’s convictions but remanded for resentencing. After

      *
         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.
resentencing, Salazar unsuccessfully sought state post-conviction relief under Colo.

R. Crim. P. 35(c). The Colorado Court of Appeals affirmed the denial of state post-

conviction relief, and the Colorado Supreme Court denied his petition for a writ of

certiorari.

       Salazar then filed a § 2254 habeas petition in the U.S. District Court for the

District of Colorado. The district court dismissed all but one of Salazar’s claims as

procedurally defaulted and denied the remaining claim on the merits. It declined to

issue a COA. Salazar now seeks a COA from this court.

                                           II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1). We will issue a COA “only if the applicant has made

a substantial showing of the denial of a constitutional right.” § 2253(c)(2). To make

such a showing, Salazar must demonstrate “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). If a district court denies a § 2254 petition on

procedural grounds, a petitioner must also show “that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

       In his properly exhausted claim, Salazar argues that trial counsel was

ineffective for failing to object to jury instructions. Specifically, he contends counsel

should have objected to the conspiracy instruction on two grounds: (1) it omitted an

overt act element; and (2) it improperly shifted the burden of proof to the defense by

directing the jury to enter a not guilty verdict if it found that the government had

                                            2
failed to prove “each of the elements” rather than “any one or more” of the elements

of the offense. To obtain habeas relief on this claim, Salazar must show that the state

courts’ adjudication was either “contrary to, or involved an unreasonable application

of, clearly established Federal law” or “based on an unreasonable determination of

the facts in light of the evidence presented.” § 2254(d)(1), (2).

      A petitioner claiming ineffective assistance of counsel must establish “that

counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment” and that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). To establish prejudice, a “defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

      The Colorado Court of Appeals applied the Strickland standard and held that

Salazar had not established prejudice. We conclude this determination was

reasonable. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (to obtain § 2254

relief, a petitioner must show the state court’s ruling “was so lacking in justification

that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement”). Although the conspiracy instruction

omitted the overt act element, it was undisputed that an overt act was committed:

Salazar himself testified that his cousin shot at the victim’s car. We further agree

with the state court that the jury was not misled by the conspiracy instruction’s use of

the phrase “each of the elements,” because the general instruction on burden of proof

                                            3
directed the jury to find Salazar not guilty if the prosecution “failed to prove any one

or more” of the elements beyond a reasonable doubt. See Coleman v. Estep, 391 F.

App’x 697, 699 (10th Cir. 2010) (unpublished) (holding that jury instructions

containing the “each of the elements” language did not violate due process because

jury instructions, taken together, properly allocated the burden of proof on every

element to the prosecution).

      Salazar challenges the district court’s conclusion that his due process claim is

procedurally defaulted as well. In that claim, Salazar argues the foregoing jury

instruction issues violated his right to due process. We agree with the district court

that Salazar did not fairly present this claim to the state courts as a freestanding due

process claim. See Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006) (“Fair

presentation requires more than presenting all the facts necessary to support the

federal claim to the state court or articulating a somewhat similar state-law claim.”

(quotation omitted)). Because Salazar’s due process claim would now be

procedurally barred in state court, see Colo. R. Crim. P. 35(c)(3)(VII), it is

procedurally defaulted. Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000).

      We may excuse procedural default if a “petitioner can demonstrate cause and

prejudice or a fundamental miscarriage of justice.” Cummings v. Sirmons, 506 F.3d

1211, 1224 (10th Cir. 2007) (quotation omitted). Salazar has not shown that our

failure to review his due process claim will result in a fundamental miscarriage of

justice. And, although ineffective assistance of counsel based on counsel’s failure to

raise an issue can constitute cause and prejudice, Edwards v. Carpenter, 529 U.S.

                                            4
446, 451 (2000), the jury in this case was not misled regarding the burden of proof,

and the commission of an overt act was undisputed. Accordingly, Salazar has not

established cause and prejudice resulting from the ineffective assistance and is

therefore unable to overcome procedural default.

                                          III

      For the foregoing reasons, we DENY Salazar’s request for a COA and

DISMISS the appeal.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




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