                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     August 14, 2007
                                  TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                       Clerk of Court

 R OBER T S. M A CH ,

       Petitioner - A ppellant,
                                                        No. 07-1058
 v.                                          (D.C. No. 05-CV-2386-LTB-PAC)
                                                         (D . Colo.)
 RON LEYBA, Superintendent
 A .V .C .F.; A TTO RN EY G EN ERAL OF
 TH E STA TE O F C OLO RA D O ,

       Respondents - Appellees.



                              ORDER
               DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.


      Petitioner-Appellant Robert S. M ach, a state inmate appearing pro se, seeks

a certificate of appealability (“COA”) so that he may challenge the district court’s

denial of his habeas petition under 28 U.S.C. § 2254. Because we conclude that

M r. M ach has not made “a substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2)-(3), we deny his request for a COA and dismiss his

appeal, see Slack v. M cD aniel, 529 U.S. 473 (2000).

      M r. M ach was convicted of first-degree murder for shooting his wife and

was sentenced to life imprisonment. The conviction was reversed on direct

appeal, People v. M ach, 96CA428 (Colo. Ct. App. Sept. 24, 1998) (unpublished),
and he was retried. The following facts emerged on retrial. On the evening of

M ay 29, 1994, M r. M ach had an extended argument with his w ife, M imi. Shortly

after midnight, M r. M ach called 911 to report that he had shot her. He later

explained to police that M imi had been intoxicated and was provoking him prior

to the shooting. Police asked M r. M ach when he had decided to shoot M imi, and

he responded, “I don’t know, it just happened.”

      M r. M ach’s defense at trial was that he shot his wife in a sudden heat of

passion after she threatened to take away his infant daughter; he contended that he

did not act after deliberation nor did he intend to kill M imi. He offered expert

testimony from Dr. Suzanne Bernhard that M imi’s repeated episodes of

intoxicated rage during the marriage led him to withdraw in an attempt to avoid

conflict. Dr. Bernhard concluded that M r. M ach had a history of dealing with

conflict through repression, indicating that he had shot M imi without deliberation

and in response to her highly provocative conduct.

      Nevertheless, the second jury also convicted M r. M ach of first-degree

murder, and he was again sentenced to life imprisonment without the possibility

of parole. This conviction was affirmed on direct appeal, and the Colorado

Supreme Court denied certiorari. Thereafter, M r. M ach timely filed a petition for

federal post-conviction relief asserting that: (1) the trial court violated his due

process rights by excluding evidence of the victim’s character (i.e., prior

instances of rage and anger); (2) the trial court violated his due process and

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confrontation rights by excluding testimony from M imi’s psychologist about

M imi’s character and state of mind on the basis of the state psychologist-patient

privilege; (3) the trial court violated his due process rights by excluding M imi’s

blood alcohol test results, and the Colorado Court of Appeals’ determination of

harmless error was incorrect; and (4) the trial court violated his due process rights

when it erroneously instructed the jury concerning the lesser non-included offense

of heat of passion manslaughter, and the Colorado Court of A ppeals’

determination of harmless error w as incorrect.

      To obtain a COA, M r. M ach must “demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack, 529 U.S. at 484. Congress has prescribed a highly deferential

standard of review for federal courts to apply in reviewing state convictions.

Before a federal court may grant relief on a claim adjudicated on the merits in

state court proceedings, a petitioner must demonstrate that the state court’s

decision on that claim was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States” or “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). As the Supreme Court recently noted, “[t]he question . . . is not whether a

federal court believes the state court’s determination was incorrect but whether

that determination was unreasonable–a substantially higher threshold. Schriro v.

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Landrigan, 127 S. Ct. 1933, 1939 (2007).

      W e have reviewed the record and the magistrate judge’s thorough

recommendation, as adopted by the district court, and we have little to add. See

M ach v. Leyba, No. 05-cv-02386-LTB-PA C, 2007 W L 45994 (D. Colo. Jan. 5,

2007). Regardless of the reason for the exclusion of evidence, a petitioner must

demonstrate that the exclusion deprived him of a fundamentally fair trial, an

inquiry that turns on the materiality of the evidence. See United States v.

Solomon, 399 F.3d 1231, 1239 (10th Cir. 2005); M atthews v. Price, 83 F.3d 328,

331-32 (10th Cir. 1996). The materiality inquiry concerns whether the evidence

would have created a reasonable doubt that would not otherw ise have existed.

Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997).

      The magistrate judge concluded that the excluded evidence did not deny

M r. M ach of a fundamentally fair trial, and we do not think this holding is

reasonably debatable. As to the blood alcohol evidence, M r. M ach was

adequately able to portray M imi as intoxicated, particularly given the testimony

of Dr. Verdeal, a forensic toxicologist. M r. M ach’s argument that the blood

alcohol evidence would have been better scientific proof may be true, but that is

not our inquiry in conducting habeas review of state court evidentiary rulings.

      As to the character evidence, M r. M ach argues that: (1) Colo. Rev. Stat. §

18-6-801.5 (concerning prior instances of domestic violence) would permit its

introduction, (2) such evidence was an essential element of his defense, and (3)

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the prosecution opened the door to character because M imi’s daughter testified

about the relationship between M r. M ach and her mother. None of these grounds

would serve to allow a trial-within-a-trial of the victim’s character in this case.

Although its state law evidentiary ruling on this point is undoubtedly correct, the

Colorado Court of Appeals’ conclusion that the jury was exposed to other

evidence that corroborated M r. M ach’s account of M imi on the day of killing is

supported–as noted by the magistrate judge. R. Doc. 20 at 11-12.

      M r. M ach also argues that M imi’s psychologist, Dr. John Lincoln, should

have been allowed to testify about the role M imi’s borderline personality disorder

played in provoking him and that an exception should have been made under

Colorado’s seemingly-absolute psychologist-patient privilege. W e note that the

Supreme Court has cautioned against ad hoc balancing for a closely-related

federal privilege, the psychotherapist-patient privilege. Jaffee v. Redmond, 518

U.S. 1, 17-18 (1996). Regardless, we do not think that it is reasonably debatable

whether the exclusion of such evidence, based on a few counseling sessions a

year or so before M imi’s death, deprived M r. M ach of a reasonably fair trial or

infringed on his confrontation rights. M r. M ach was able to portray M imi as

abusive and intoxicated. W e fail to see how Dr. Lincoln’s testimony could have

addressed M imi’s state of mind or intoxication on the night of the event.

      Finally, M r. M ach argues that he was entitled to a heat of passion

manslaughter instruction and a second verdict form on the lesser non-included

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offense of heat of passion manslaughter. He argues that this w as especially

important because the jury was not instructed that the people had to disprove his

heat of passion manslaughter defense. See W alker v. People, 932 P.2d 303, 308-

10 (Colo. 1997). The record supports the magistrate judge’s conclusion that the

jury instructions set forth the elements of heat of passion manslaughter

(applicable at the time of the offense) and that the prosecution had the burden of

proof on each element. 31 R. Proper 164-65. The Colorado Court of Appeals

reasoned that any claimed instructional error w as harmless because the jury

necessarily rejected the heat of passion manslaughter offense when it convicted

M r. M ach of first-degree murder and rejected the intermediate offense of second-

degree murder. R. Doc. 12, App. D. at 10-12; M ata-M edina v. People, 71 P.3d

973, 981-82 (Colo. 2003). W e note that M ata-M edina involved the failure to

provide an instruction; no such problem occurred here, and the magistrate judge’s

conclusion that no reasonable probability exists on this record that the jury failed

to consider the heat of passion offense is not reasonably debatable. In short, M r.

M ach was not deprived of fundamental fairness or due process. See Henderson v.

Kibbe, 431 U.S. 145, 154 (1977).

      Accordingly, we D ENY a COA and DISM ISS the appeal. Appellant’s

m otion to proceed on appeal in forma pauperis is GRANTED.

                                       Entered for the Court

                                       Paul J. Kelly, Jr.
                                       Circuit Judge

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