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

                            FOR THE TENTH CIRCUIT                               June 25, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 WAYNE GLASSER,

       Petitioner - Appellant,

 v.                                                           No. 18-1420
                                                 (D.C. No. 1:17-CV-01396-WYD-MEH)
 JACKIE MCCALL, Acting Warden; THE                             (D. Colo.)
 ATTORNEY GENERAL OF THE STATE
 OF COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
                   _________________________________

       Wayne Glasser, a Colorado state inmate proceeding pro se,1 seeks a certificate of

appealability (COA) under 28 U.S.C. § 2253 in order to appeal the denial of his

28 U.S.C. § 2254 habeas corpus petition. We deny a COA and dismiss the matter.

                                     I. Background

       In 2008, Glasser was convicted of two counts of aggravated first degree sexual

assault and one count of second degree kidnapping. The trial court merged the sexual


       
         This order is not binding precedent except under the doctrines of law of the case,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
       We liberally construe Glasser’s pro se filings but do not act as his advocate.
See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
assault convictions and imposed two consecutive sentences of thirty years’ imprisonment.

On direct appeal, the Colorado Court of Appeals (CCA) affirmed the convictions and

sexual assault sentence but reversed the kidnapping sentence and remanded for

resentencing. People v. Glasser, 293 P.3d 68 (Colo. App. 2011). The CCA denied

Glasser’s petition for rehearing, and both the Colorado Supreme Court and the United

States Supreme Court denied Glasser’s petitions for a writ of certiorari.

       On remand, the trial court resentenced Glasser to consecutive sentences of thirty

years’ imprisonment for the sexual assault convictions and twenty-four years’

imprisonment for the kidnapping conviction. Glasser filed a motion for reduction of

sentence pursuant to Colo. R. Crim. P. 35(b), which the court denied. Glasser did not

appeal.

       Glasser then filed a petition for post-conviction relief pursuant to Colo. R. Crim.

P. 35(c). The state court summarily denied the petition, and the CCA affirmed. People v.

Glasser, No. 14CA1566, 2016 WL 836990 (Colo. App. Mar. 3, 2016) (unpublished).

The CCA denied Glasser’s petition for rehearing, and the Colorado Supreme Court

denied his petition for a writ of certiorari.

       Thereafter, Glasser filed a § 2254 petition in federal district court, asserting a

Confrontation Clause violation and numerous claims of ineffective assistance of counsel

(IAC), including a claim of cumulative IAC. After a comprehensive review, the district

court dismissed the Confrontation Clause claim as procedurally defaulted, summarily

denied the IAC claims on the merits, and denied a COA. The district court also denied

Glasser’s motion for reconsideration. Glasser now seeks a COA from this court.

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                                     II. COA Standard

       With respect to Glasser’s defaulted Confrontation Clause claim, Glasser qualifies

for a COA only if he can demonstrate that reasonable jurists “would find it debatable

whether the petition states a valid claim of the denial of a constitutional right and . . .

whether the district court was correct in its procedural ruling.” Slack v. McDaniel,

529 U.S. 473, 484 (2000). With respect to the remainder of Glasser’s claims, Glasser

qualifies for a COA only if he can demonstrate “that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Id.

       When determining if Glasser has satisfied these standards, we are limited to “an

overview of the claims in the habeas petition and a general assessment of their merits,”

rather than a “full consideration of the factual or legal bases adduced in support of the

claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Nevertheless, the “deferential

treatment of state court decisions” under 28 U.S.C. § 2254 “must be incorporated into our

consideration of a habeas petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935,

938 (10th Cir. 2004). Under § 2254, factual determinations “by a State court shall be

presumed to be correct,” which a petitioner can rebut only with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). For claims adjudicated on the merits in state court, a

petitioner must establish the state-court decision was “contrary to, or involved an

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

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Id. § 2254(d)(1), (2). If that deferential “standard is difficult to meet,

that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

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                                      III. Discussion

       Federal habeas review exists to “guard against extreme malfunctions in the state

criminal justice systems.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (internal

quotation marks). Having reviewed Glasser’s filings, the district court record, and the

state court record, we conclude that no such malfunction occurred in Glasser’s case and

that reasonable jurists would not debate the district court’s rulings.

       First, Glasser asserts the state court’s determination, made both on direct appeal

and in post-conviction, that his counsel presented a defense of consent constituted an

unreasonable factual finding. Glasser claims that his attorneys did not present such a

defense and that such a factual finding adversely impacted the disposition of several of

his claims. The district court properly found Glasser failed to produce clear and

convincing evidence sufficient to rebut § 2254’s presumption of correctness.

       Next, the district court correctly found Glasser’s Confrontation Clause claim

procedurally defaulted. The state court properly found the claim barred under Colo.

Crim. P. 35(c)(3)(VII), and none of the exceptions to that bar apply. Although Glasser

now asserts ineffective assistance of appellate counsel as cause to excuse the procedural

default, he failed to raise and exhaust such a claim in state court. See Edwards v.

Carpenter, 529 U.S. 446, 451-52 (2000).

       The district court also correctly denied Glasser’s ineffective assistance of counsel

claims on the merits, particularly given review of such claims is “doubly” deferential.

Richter, 562 U.S. at 105 (internal quotation marks omitted). Glasser was required to

show both objectively unreasonable performance by his attorneys and “a reasonable

                                              4
probability that . . . the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). A thorough review of each claim is not

warranted here, but many of his claims fail on one of Strickland’s prongs—and for some,

he cannot satisfy either prong. Further, as each individual claim is without merit, so too

is his claim of cumulative ineffective assistance. See Wood v. Carpenter, 907 F.3d 1279,

1302 (10th Cir. 2018), petition for cert. filed (U.S. Mar. 29, 2019) (No. 18-8666); Spears

v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003).

       Finally, as all claims could be resolved on the record, the district court properly

denied an evidentiary hearing. See Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 859

(10th Cir. 2005).

                                      IV. Conclusion

       We deny Glasser’s request for a COA, dismiss the matter, and dismiss as moot his

motion for certification of questions of state law to the Colorado Supreme Court. We

grant his motion to proceed in forma pauperis. See Watkins v. Leyba, 543 F.3d 624, 627

(10th Cir. 2008).


                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge




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