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

                                     TENTH CIRCUIT                          October 24, 2013

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 DANIEL L. ROSALES,

           Petitioner - Appellant,

 v.                                                           No. 13-1183
                                                    (D.C. No. 1:10-CV-03101-CMA)
 KEVIN MILYARD; JOHN SUTHERS,                                  (D. Colo.)
 The Attorney General of the State of
 Colorado,

           Respondent - Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


       Daniel L. Rosales, a Colorado state prisoner proceeding pro se,1 seeks a certificate

of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254

habeas petition. See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal the denial of a

habeas application). Mr. Rosales also requests leave to proceed in forma pauperis

        *This order is not binding precedent, except under the doctrines of law of the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 Mr. Rosales is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops,
however, at the point at which we begin to serve as his advocate.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
(“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests and

dismiss this matter.

                                    I. BACKGROUND

                                A. State Court Proceedings

       In November 2002, a Colorado state court jury found Mr. Rosales guilty of two

counts of first degree murder after deliberation, two counts of first degree felony murder,

one count of first degree burglary, one count of second degree assault, and one count of

violating a restraining order. See People v. Rosales, 134 P.3d 429, 431 (Colo. App. Aug.

11, 2005). The evidence showed that on the night of the murders, Mr. Rosales beat his

girlfriend, then took a shotgun and drove to his estranged wife’s apartment. Mr. Rosales

broke into the apartment by firing two shots to disable locks on the apartment door. He

then reloaded his gun on his way to the bedroom, where he discovered his estranged wife

with the man she had been dating. Mr. Rosales shot and killed them both. Id.

       Mr. Rosales was sentenced to two concurrent life sentences for murder, a

concurrent prison term of thirty-two years for burglary, a consecutive term of sixteen

years for assault, and a concurrent term of eighteen months for violating the restraining

order. The state trial court additionally ordered restitution in February 2003, a month

after Mr. Rosales filed his notice of direct appeal. Id.

       On direct appeal, the Colorado Court of Appeals (“CCA”) affirmed Mr. Rosales’s

conviction and remanded the case to the trial court with instructions to amend the

mittimus to include an order of restitution. Id. at 436. The Colorado Supreme Court
                                             -2-
denied Mr. Rosales’s petition for certiorari. See Rosales v. People, No. 05SC684, 2006

WL 1688339 (Colo. May 22, 2006).

       Mr. Rosales next filed a postconviction motion pursuant to Rule 35(c) of the

Colorado Rules of Criminal Procedure. The state trial court denied that motion. The

CCA affirmed denial, see People v. Rosales, No. 07CA1881 (Colo. App. Mar. 26, 2009),

and the Colorado Supreme Court denied certiorari. See Rosales v. People, No.

2009SC409 (Colo. Sept. 7, 2010) (en banc).

       All of the claims for which Mr. Rosales seeks COA were presented to and

adjudicated by the Colorado courts and therefore were exhausted for purposes of habeas

review.

                                B. Federal Habeas Petition

       Mr. Rosales asserted nine claims at the district court, the first six of which he

continues to assert in his application for COA:

   (1) Trial court error in allowing a faulty jury instruction on self-induced intoxication;

   (2) Prosecutorial misconduct in closing argument;

   (3) Lack of trial court jurisdiction to impose restitution;

   (4) Trial court error in imposing restitution after Mr. Rosales sold his house;

   (5) Double Jeopardy Clause and Due Process violations in imposing restitution;

   (6) Ineffective assistance of trial counsel;

   (7) Trial court error in not holding an evidentiary hearing during the postconviction

       proceeding;
                                             -3-
   (8) The postconviction court’s violation of state civil and criminal rules in denying

       Mr. Rosales’s request to amend his Rule 35(c) motion as well as his request for an

       evidentiary hearing; and

   (9) Ineffective assistance of postconviction counsel.

       The district court produced a thorough order examining each of Mr. Rosales’s

claims. See Rosales v. Milyard, No. 10-cv-03101-CMA, 2013 WL 1302657, at *1 (D.

Colo. Mar. 29, 2013) (unpublished) (hereinafter “Dist. Ct. Order.”). The district court

denied Claims One, Two, Six, and Seven for lack of merit. It denied Claims Three, Four,

and Five for lack of jurisdiction, holding that restitution payments are not the sort of

restraint on liberty contemplated by the “in custody” requirement of § 2254(a). Finally,

the district court held that Claims Eight and Nine failed to state cognizable federal habeas

claims.

       The district court further denied COA, holding that Mr. Rosales had not made a

substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.

§ 2253(c). It also certified that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal of its

order would not be taken in good faith and ifp status should therefore be denied on

appeal.

                                     II. DISCUSSION

       Mr. Rosales may not appeal the district court’s denial of his § 2254 petition

without a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Rosales must
                                             -4-
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). To make this showing, Mr. Rosales must demonstrate “that jurists of

reason could disagree with the district court’s resolution of his constitutional claims or

that jurists could conclude that the issues presented are adequate to deserve

encouragement to proceed further.” Dulworth v. Jones, 496 F.3d 1133, 1136-37 (10th

Cir. 2007) (quotations omitted).

        As the district court noted, federal habeas review of state court decisions is

governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

AEDPA provides that if a state court adjudicated the merits of a claim, a federal court

cannot grant habeas relief unless 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,” 28 U.S.C. § 2254(d)(1); or “was based on an

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

court proceeding,” id. § 2254(d)(2). When deciding whether to grant a COA, we are

required to “look to the District Court’s application of AEDPA to petitioner’s

constitutional claims and ask whether that resolution was debatable among jurists of

reason.” Miller-El, 537 U.S. at 366.

        In his application for COA, Mr. Rosales reasserts the first six claims that he

presented in his habeas petition at the district court. We address each of these claims in

turn.

                                        A. Claim One
                                              -5-
       Mr. Rosales asserts in Claim One that the state trial court used a faulty jury

instruction on self-induced intoxication. According to Mr. Rosales, he was heavily

intoxicated the night of the murders. See Aplt. Br. at iii. He contends that although self-

induced intoxication is not an affirmative defense in Colorado, it can reduce the level of

culpability associated with an act if the factfinder determines that the state has failed to

satisfy its burden of proof as to the mens rea of specific intent.

       Mr. Rosales contends that the jury instruction2 in his case was erroneous because:

(1) it improperly focused on whether, as a result of his intoxication, he lacked the

capacity to form specific intent, rather than whether he had in fact formed specific intent;

(2) it failed to instruct the jury that it must consider evidence of self-induced intoxication,

stating only that it “may” consider such evidence; (3) it misled the jury by suggesting that


2
 The jury was instructed that they
       may consider evidence of self-induced intoxication in determining whether
       or not intoxication negates the existence of the particular state of mind of
       with intent, which is also known as specific intent or after deliberation, and
       with intent. The prosecution has the burden of proving all of the elements
       of the crimes charged. If you find the defendant was intoxicated to such a
       degree that he did not form the specific intent which is a required element
       of the crimes of first-degree murder, amended counts 1, 2, 3, and 4; first-
       degree burglary, Count 5; and second-degree assault, Count 7, you should
       find defendant not guilty of those charges. Self-induced intoxication is not
       applicable to the state of mind of knowingly, which is an element of the
       general intent crimes of the lesser included offense of murder in the second
       degree, lesser included offense of first-degree criminal trespass,
       kidnapping, Count 6, violation of restraining order, Count 8; and violent
       crime enhancers, which are counts 9 and 10.
Dist. Ct. Order at *7 (quoting Rosales, No. 01CR3022, Trial Tr., Nov. 20, 2002, at 63-
64).

                                              -6-
the jury may not take evidence of intoxication into account unless the prosecution proves

beyond a reasonable doubt that his intoxication was so severe that he could not form

specific intent; and (4) the CCA on direct appeal admitted the instruction was an incorrect

statement of law but failed to correct the harm it caused.

       The CCA considered Mr. Rosales’s jury instruction claim both on direct appeal

and on post-conviction review. It denied Mr. Rosales’s claim in both instances. See

Rosales, 134 P.3d at 433-34; Rosales, No. 07CA1881 at 6-8.

       “Claims of erroneous jury instructions can justify setting aside a state conviction

on habeas only if ‘the errors had the effect of rendering the trial so fundamentally unfair

as to cause a denial of a fair trial in the constitutional sense, or is otherwise

constitutionally objectionable as, for example, by transgressing the constitutionally

rooted presumption of innocence.’” Dockins v. Hines, 374 F.3d 935, 938-39 (10th Cir.

2004) (quoting Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979)).

       The district court concluded that Mr. Rosales failed to make this required showing.

Specifically, it held that (1) the jury instruction properly directed jurors to determine if

Mr. Rosales had in fact formed specific intent, in keeping with Colorado law, see People

v. Versteeg, 165 P.3d 760, 766-68 (Colo. App. 2006);3 (2) Mr. Rosales’s argument that


       3
        Mr. Rosales argues the district court failed to mention that People v. Harlan, 8
P.3d 448 (Colo. 2000) (en banc), overruled on other grounds by People v. Miller, 113
P.3d 743 (Colo. 2005) (en banc), requires juries to be instructed that they “must” consider
evidence of self-induced intoxication. But Harlan states no such requirement. It merely
requires that if a jury receives an instruction on intoxication, it should be instructed to
                                                                                 Continued . . .
                                               -7-
the instruction should have said the jurors “must” rather than “may” consider evidence of

self-induced intoxication was “without basis,” Dist. Ct. Order at *7, because Mr. Rosales

did not show that the jury disregarded the instruction to consider all evidence; and (3)

nothing in the jury instruction reduced the prosecution’s burden of proof. Finally, after

reviewing the CCA’s opinion on direct appeal “with close scrutiny,” the district court

could find no admission in the CCA’s opinion that the instruction was an incorrect

statement of law. Id. at *8. We agree with this analysis.

       We conclude that jurists of reason could not disagree with the district court’s

denial of Claim One and deny COA.

                                      B. Claim Two

       Mr. Rosales asserts in Claim Two that the prosecution committed misconduct in

closing argument by urging the jury to nullify the law regarding self-induced

intoxication. In his request for COA, Mr. Rosales does not challenge the district court’s

reasoning in denying this claim. Rather, he repeats his contentions from his habeas

petition. Mr. Rosales argues that the prosecution improperly suggested to the jury that

acquitting Mr. Rosales of first degree murder would reward his intoxication. He also

claims prejudice from the CCA’s plain error review of this issue. The CCA applied plain

error review on direct appeal because trial counsel did not raise contemporaneous



consider whether the defendant had in fact formed specific intent, and not whether the
defendant lacked capacity to form specific intent. Id. at 471.


                                            -8-
objections to the improper statements. See Rosales, 134 P.3d at 434-36.

       A prosecutor’s improper statement amounts to prosecutorial misconduct only if it

“so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). This determination must be based on the

totality of the circumstances. See Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.

1998). “Inappropriate prosecutorial statements, standing alone, would not justify a

reviewing court” granting relief on a claim of prosecutorial misconduct. United States v.

Young, 470 U.S. 1, 11 (1985).

       The district court concluded that Mr. Rosales has not shown that the alleged

prosecutorial misconduct was egregiously unfair, or that the prosecutor’s comments

amounted to “jury nullification,” defined as “a violation of a juror’s oath to apply the

law.” Dist. Ct. Order at *10 (quoting United States v. Thomas, 116 F.3d 606, 614 (2d

Cir. 1997)). We agree with the district court that the CCA’s denial of the claim satisfies

AEDPA review. Reasonable jurists would not find this conclusion debatable. We

therefore deny COA.

                             C. Claims Three, Four, and Five

       In Claims Three, Four, and Five, Mr. Rosales challenges the trial court’s

imposition of restitution after he had filed his notice of appeal. Mr. Rosales argues that

he has been ordered to pay the same restitution twice, in violation of his due process

rights and constitutional protection against double jeopardy. The district court dismissed
                                             -9-
these claims for lack of jurisdiction. In his request for COA, Mr. Rosales does not

explain why he challenges the district court’s reasoning. He merely maintains that he

complied with exhaustion and notice requirements and that the district court’s refusal to

address these claims on the merits itself violates his due process rights.

       The district court properly held that a restitution payment is not the sort of

significant restraint on liberty contemplated by 28 U.S.C. § 2254(a), which grants federal

court jurisdiction over an application for habeas “of a person in custody pursuant to the

judgment of a State court only on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States” (emphasis added). See Erlandson v.

Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008). Because the “in custody”

language of § 2254(a) is jurisdictional, id., the district court correctly concluded that it

lacked subject matter jurisdiction over Claims Three, Four, and Five. We deny COA on

these claims.

                                        D. Claim Six

       In Claim Six, Mr. Rosales alleges ineffective assistance of counsel resulting from

trial counsel’s failure to (1) investigate Mr. Rosales’s intoxication the night of the

murders; (2) interview jail intake personnel regarding Mr. Rosales’s intoxication level;

(3) present a provoked heat of passion defense; (4) obtain independent blood analysis;

(5) advise Mr. Rosales before he waived his right to testify that only one witness would

testify for the defense; (6) object to the intoxication instruction; and (7) object to the


                                             -10-
prosecution’s statements during closing argument.4

       To establish a Sixth Amendment violation for ineffective assistance of counsel, a

petitioner must establish that (1) counsel’s performance fell below an objective standard

of reasonableness and (2) counsel’s deficient performance resulted in prejudice to his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).

       “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at

689. Petitioner must overcome a strong presumption that counsel’s representation was

reasonable with evidence that counsel made errors so serious as to violate the defendant’s

Sixth Amendment right to counsel. See Harrington v. Richter, 131 S. Ct. 770, 787

(2011).

       As to prejudice, a petitioner must establish “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not

just conceivable.” Richter, 131 S.Ct. at 792 (citing Strickland, 466 U.S. at 693).

       Under AEDPA, “[t]he pivotal question is whether the state court’s application of

the Strickland standard was unreasonable.” Id. at 785. Rather than asking whether


       4
         The district court determined that three additional subclaims asserting ineffective
assistance of trial counsel in Mr. Rosales’s original petition were procedurally barred.
These subclaims contended that trial counsel failed to (1) interview Mr. Rosales’s
girlfriend regarding his assault of her; (2) object to the prosecution’s comments during
voir dire; and (3) object to inadmissible prior act evidence. Dist. Ct. Op. at *2. Mr.
Rosales does not attempt to raise these claims in his request for COA, and we do not
address them.

                                            -11-
defense counsel’s performance fell below the Strickland standard, we ask “whether there

is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.

at 788. The CCA, affirming denial of Mr. Rosales’s post-conviction challenge, rejected

all of his ineffective assistance claims. See Rosales, 07CA1881. So long as the CCA

reasonably applied the Strickland standard to these claims, habeas relief is not available.

1. Subclaims (i) and (ii): Investigation and Interviews

       Mr. Rosales alleges that trial counsel failed to investigate his intoxication level

and interview jail intake personnel regarding his intoxication. Specifically, he asserts that

trial counsel never investigated his history of alcohol abuse and should have called

witnesses who could testify that he was staggering and slurring his words the night of the

murders. He also contends that counsel should have obtained a copy of his bar tab from

one of the bars where he was drinking the night of the murders to establish how much

alcohol he had consumed. Similarly, he argues that counsel should have interviewed the

intake case manager at the Jefferson County Jail, who had told him that his blood alcohol

content (“BAC”) was very high when he was admitted to the jail.

       Trial counsel “has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” Strickland, 466

U.S. at 691. The district court concluded that obtaining copies of Mr. Rosales’s bar tabs

was not a reasonably necessary investigation because a bar itemizes how much an

individual paid for beverages and/or food but not how much alcohol he actually

consumed. It also held that Mr. Rosales has not presented evidence that trial counsel was
                                             -12-
ineffective in failing to investigate his prior drug and alcohol abuse, and that Mr. Rosales

has not established that trial counsel did not ask the jail intake manager or those who saw

him drinking to testify. The district court concluded that Mr. Rosales had not provided

sufficient support to overcome the strong presumption of counsel’s reasonable

representation.

       The district court further held that even if Mr. Rosales could show that trial

counsel was deficient in failing to investigate these issues, Mr. Rosales was not

prejudiced. As the district court noted, the evidence against Mr. Rosales at trial was

overwhelming. Witnesses testified that Mr. Rosales drank regularly, often beat his wife

and made disparaging remarks about her and—after their estrangement—about her

boyfriend. They also testified that Mr. Rosales stated he wanted to kill his estranged wife

and was jealous of her boyfriend. Forensic evidence indicated Mr. Rosales shot at the

locks on his wife’s apartment door, then was able to quickly reload his shotgun and

proceed to the bedroom to shoot the victims before they could escape. Given this

overwhelming evidence, the district court held that Mr. Rosales had not established that

trial counsel’s failures prejudiced him.

       Mr. Rosales now contends that the district court was wrong to conclude that the

bar tab investigation was unnecessary. He argues that evidence of his bar tab, when

combined with interviews of witnesses who could testify to how much he was drinking,

would lead to an accurate assessment of his BAC at the time the crimes took place. He

also argues that counsel failed to contact potential witnesses to find out whether they
                                            -13-
could testify.

       Because Mr. Rosales has not shown he was prejudiced by trial counsel’s actions

under the second part of the Strickland standard, 466 U.S. at 692, his arguments do not

suffice to demonstrate that reasonable jurists “could disagree with the district court’s

resolution of [Mr. Rosales’s] constitutional claims or that jurists could conclude that the

issues presented are adequate to deserve encouragement to proceed further.” Dulworth,

496 F.3d at 1137 (quotations omitted). The district court’s analysis confirms and it is not

debatable that the CCA reasonably applied the Strickland standard. We therefore deny

COA on this issue.

2. Subclaim (iii): Failure to Present a Provoked Heat of Passion Defense

       Mr. Rosales argues that trial counsel was ineffective because he did not pursue a

“provoked heat of passion” defense. Mr. Rosales argues that he was “in an extreme state

of emotional outrage” aggravated by his intoxication just before he drove to his estranged

wife’s apartment. Aplt. Br. at 41. He contends that he did not know that his estranged

wife’s boyfriend would be present when he went to the apartment, and that when he

found him in bed with his estranged wife, he was propelled into a state of “extreme

emotional upheaval.” Id. at 43. Mr. Rosales asserts that trial counsel should have sought

a jury instruction regarding the heat of passion defense under Colorado law, which

mitigates second degree murder when “performed upon a sudden heat of passion, caused

by a serious and highly provoking act of the intended victim.” See Colo. Rev. Stat. § 18-

3-103(3)(b).
                                            -14-
       The district court reviewed the CCA’s holding regarding the heat of passion

defense. The CCA stated that the facts of Mr. Rosales’s case do not support a theory that

Mr. Rosales acted in a sudden heat of passion after a highly provoking act of the victim.

Rosales, No. 07CA1881 at 16-17. As the CCA noted, Mr. Rosales beat his girlfriend,

then obtained a shotgun, drove to the home of his estranged wife, shot the locks off her

door, and reloaded his weapon before even entering her bedroom and finding her with

another man. Mr. Rosales also knew for quite some time that his wife had been seeing

another man, and he had told others on multiple occasions in the months preceding the

murders that he wanted to kill his wife. The district court agreed with the CCA that “[t]he

evidence was overwhelming that [Mr. Rosales] intended to murder his wife before he

even entered the bedroom in her apartment.” Dist. Ct. Order at *17.

       Mr. Rosales argues in his request for COA that under Colorado law, a defendant is

entitled to an affirmative defense instruction whenever there is a “scintilla of evidence” to

support that defense. See, e.g., People v. Jones, 677 P.2d 383, 385 (Colo. App. 1983),

rev’d on other grounds, 711 P.2d 1270 (Colo. 1986) (en banc). He contends that trial

counsel should have sought a heat of passion instruction based on evidence that Mr.

Rosales and his wife had engaged in marital sexual relations during their separation and

were trying to salvage their marriage. Mr. Rosales argues he naturally would have been

enraged to find his wife in bed with another man. He further asserts that his aggressive

behavior in breaking into his wife’s apartment “indicate[s] at least a modicum of rage on

his part.” Aplt. Br. at 43.
                                            -15-
       We agree with the district court that the CCA’s decision regarding counsel’s

failure to pursue the heat of passion defense was not “based on an unreasonable

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

proceeding[s].” 28 U.S.C. § 2254(d)(2). Jurists of reason could not debate the district

court’s conclusion that trial counsel cannot be found ineffective for having failed to

present a defense that was not supported by the facts.

       Even if Mr. Rosales could have been entitled to a jury instruction on the heat of

passion defense based on a scintilla of evidence, he has not demonstrated that trial

counsel’s failure to raise the defense in the first place amounts to ineffective assistance.

As the district court and the CCA noted, there was ample evidence of Mr. Rosales’s

premeditation, including his statements on several occasions in the months preceding the

murders that he wanted to kill his wife. Mr. Rosales has not demonstrated that trial

counsel’s failure to raise the heat of passion defense was unreasonable or that it

prejudiced him at trial. The district court’s AEDPA review of this claim would not be

debatable among jurists of reason. We therefore deny COA on this issue.

3. Subclaim (iv): Independent Blood Analysis

       Mr. Rosales contends that trial counsel failed to present a blood alcohol report to

the jury and to call an expert to provide scientific evidence regarding his level of

intoxication.

       The district court noted that Mr. Rosales failed to explain what the expert

testimony would have shown about his ability or inability to form the required specific
                                             -16-
intent. It also noted that during a pretrial hearing, the prosecution produced an expert

who provided testimony regarding the effects of alcohol on Mr. Rosales’s behavior

before and after the murders. The expert testified that Mr. Rosales exhibited signs of a

high tolerance for alcohol and that he demonstrated rational thought processes in

statements he made soon after the murders. The district court concluded that, because the

prosecution’s addiction psychiatry expert could testify at trial to Mr. Rosales’s high

tolerance, defense counsel could not be found ineffective for not calling an expert to

testify regarding Mr. Rosales’s intoxication level. It also noted that Mr. Rosales failed to

demonstrate how the BAC report—which was taken twelve hours after the murders—

would be relevant to his level of intoxication at the time of the murders.

       Mr. Rosales now argues that the district court was incorrect to focus on trial

counsel’s failure to produce the existing BAC report. He contends instead that trial

counsel could have obtained information to determine his BAC at the time of the

shootings by using an expert witness to extrapolate his BAC from bar tab and eyewitness

evidence. He also contends that counsel failed to obtain an expert equipped to rebut the

prosecution’s own expert evidence.

       Apart from whether Mr. Rosales should be allowed to raise these arguments at this

stage, he still has failed to show that the CCA unreasonably determined that trial counsel

was not ineffective in failing to present this BAC evidence at trial. Even if Mr. Rosales

could make that showing, he has produced no evidence that trial counsel’s failure

prejudiced him in light of the overwhelming evidence against him. We therefore deny
                                            -17-
COA on this issue.

4. Subclaim (v): Failure to Advise that Only One Witness Would Be Called for
   Defense

       Mr. Rosales asserts that trial counsel listed seventeen people on the defense

witness list but only called one witness. He contends that he would not have waived his

right to testify if he had known that only one witness would appear on his behalf. He

argues that he would have testified about how much he had been drinking on the night of

the murders, as well as his prior drug use and depression.

       As the district court stated, the trial court thoroughly advised Mr. Rosales of his

right to testify, and Mr. Rosales stated at trial that he was not pressured or coerced in

deciding not to testify. Even if trial counsel acted unreasonably by calling only one

witness, Mr. Rosales has provided no evidence that he was prejudiced by trial counsel’s

decision.

       We agree with the district court’s analysis for substantially the same reasons and

conclude that reasonable jurists would not debate the district court’s denial of this claim.

We deny COA on this issue.

5. Subclaims (vi) and (vii): Intoxication Instruction and Prosecution’s Comments

       Finally, Mr. Rosales asserts that counsel failed to object to an erroneous

intoxication instruction and nullifying statements made by the prosecution alleged in

Claims One and Two. [Aplt. Br. at 24.] Based on our and the district court’s earlier

consideration of those two claims, Mr. Rosales was not prejudiced by trial counsel’s

                                             -18-
failure to object. Dist. Ct. Order at *18. We hold that reasonable jurists would not

debate the district court’s conclusion that the CCA’s denial of these claims was

reasonable. A COA is therefore denied.

                                   III. CONCLUSION

       We deny Mr. Rosales’s request for a COA and dismiss this matter. We also deny

his motion to proceed ifp.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




                                           -19-
