                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   November 14, 2006
                                 TENTH CIRCUIT
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 JAM ES SIM S,

          Petitioner-Appellant
                                                        No. 05-1463
 v.
                                            (D.C. No. 03-CV-00131-W DM -PAC)
                                                         (Colorado)
 G A RY W A TK IN S and TH E
 A TTO RN EY G EN ER AL O F THE
 STA TE OF C OLO RA D O ,

          Respondents-Appellees.



                                    ORDER *


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.


      James Sims, a Colorado 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 habeas petition. 1 He also seeks leave to proceed in form a pauperis (ifp)

on appeal. W e grant his motion for ifp status but deny his application for a COA .

      M r. Sims w as charged with one count each of first-degree sexual assault,


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
         Because he is proceeding pro se, we review M r. Sims’ pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
sexual assault on a child, enticement of a child, contributing to the delinquency of

a child; and two counts of committing a crime of violence in connection with the

two sexual assault counts. The following evidence was introduced at trial.

      Over the course of several hours on or around February 4, 1998, M r. Sims

and Samuel Ravenell plied the thirteen year-old victim and her friend, K.R., with

marijuana, crack cocaine, and alcohol. After driving around and making several

stops, M r. Sims drove M r. Ravenell, K.R. and the victim to a motel where they

continued to smoke crack and drink alcohol. After about an hour, M r. Sims and

M r. Ravenell turned off the lights, saying they wanted to go to sleep. M r.

Ravenell and K.R. lay in one bed, while M r. Sims and the victim lay in the other.

M r. Sims asked the victim to get under the covers with him and she complied.

Although the victim was fully clothed, she discovered upon getting under the

covers that M r. Sims w as naked from the waist down. M r. Sims asked repeatedly

if he could perform oral sex on the victim, and she repeatedly told him no.

      M r. Sims then got on top of the victim, held her hands over her head with

one hand and removed her pants and underwear with the other. M r. Sims then

penetrated the victim vaginally with his penis and had sexual intercourse with her.

Afterward, the victim called her mother who retrieved her and K.R. from the

motel parking lot. The victim eventually informed her mother she had been

raped. Her mother drove the victim to the hospital where she was examined by

tw o sexual assault nurses and questioned by a police detective.

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      The victim exhibited a half-centimeter tear and multiple abrasions in the

vaginal area. Detectives investigating the crime scene found hair and semen

samples, but none were traceable to M r. Sims. M r. Sims did not testify, nor did

K.R. or M r. Ravenell. The only witness to the crime to testify was the victim.

      At the close of the evidentiary portion of the trial, the court consulted with

counsel in chambers regarding the jury instructions. That conversation was not on

the record, but it appears the state agreed to drop the count of contributing to the

delinquency of a minor and the two crime of violence counts in exchange for

instructions containing the elements of a crime of violence within the first-degree

sexual assault and the sexual assault of a child counts.

      The next morning, the court stated on the record that it had “prepared the

instructions of law,” and asked whether the state had any objections to the

instructions. Tr. at 381. The prosecutor answ ered in the negative, adding that it

was his “understanding that while [the state] dropped the specific crime of

violence [counts], it is the understanding of both the Court and counsel that [the

remaining counts are] crimes of violence . . . and, if [M r. Sims is] convicted,

require mandatory sentence[s].” Id. The court then stated that “the critical

elements that would make [the counts of first-degree sexual assault and sexual

assault of a child] crimes of violence are subsumed inside the elements of the

instructions” for those counts. Id. The prosecutor replied “yes, sir.” Id. The

court then asked M r. Sims’ attorney if its understanding was correct, and he

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replied that he “believe[d] they’re part of the charges, Judge.” Id.

      The court erroneously instructed the jury that they were to find M r. Sims

guilty of first-degree sexual assault if he knowingly inflicted sexual penetration

on the victim and caused her submission through the actual application of

physical force, or if he knowingly inflicted sexual penetration on the victim and

caused her bodily injury. The jury convicted M r. Sims of first-degree sexual

assault, sexual assault of a child, and enticement of a child.

      The Colorado Court of Appeals affirmed M r. Sims’ conviction, and the

Colorado Supreme Court denied certiorari. M r. Sims timely filed the present §

2254 petition, presenting the following four claims: (1) he was denied his right to

a fair trial because the jury instructions were erroneous; (2) his conviction for

enticement of a child was not supported by sufficient evidence; (3) the trial court

violated his rights under the Sixth Amendment by refusing to permit the entrance

of evidence of the victim’s prior sexual conduct and prior false report of a sexual

assault; and (4) his Sixth A mendment rights were violated w hen the trial court

allowed the state to elicit prejudicial hearsay statements from the victim’s mother.

A magistrate judge recommended dismissing M r. Sims’ petition, and the district

court adopted the magistrate judge’s recommended ruling. M r. Sims now seeks a

COA to challenge the district court’s dismissal of his § 2254 petition.

      A “COA may not issue unless ‘the applicant has made a substantial

showing of the denial of a constitutional right.’” Slack v. M cDaniel, 529 U.S. 473,

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483 (2000) (quoting 28 U.S.C. § 2253(c)).

             To obtain a COA under § 2253(c), a habeas prisoner must
      make a substantial showing of the denial of a constitutional right, a
      demonstration that . . . includes showing that reasonable jurists could
      debate whether . . . the petition should have been resolved in a
      different manner or that the issues presented were adequate to
      deserve encouragement to proceed further.

Id. at 483-84 (internal quotation marks omitted). Accordingly, “[w]here a district

court has rejected the constitutional claims on the merits,” as the court here did in

part, “petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Id. at 484.

W hen the district court denies a habeas petition on procedural grounds, as the

court here also did in part,

      a COA will issue when the prisoner shows, at least, that jurists of
      reason would find it debatable w hether the petition states a valid
      claim of the denial of a constitutional right and that jurists of reason
      would find it debatable w hether the district court was correct in its
      procedural ruling.

Id.

      The district court dismissed M r. Sims’ first claim on procedural grounds

and his remaining claims on the merits. W e conclude the district court’s

determination that it was barred from reviewing M r. Sims’ first claim on the

ground that it w as “procedurally defaulted” in the state courts is debatable. See

Tiger v. Workman, 445 F.3d 1265, 1267-68 (10th Cir. 2006) (treating state court’s

determination that “invited error” doctrine prevented relief as to erroneous jury



                                          -5-
instructions as adjudication on the merits, not as procedural bar). However, our

inquiry does not end there. M r. Sims must also show that “jurists of reason would

find it debatable whether [his] petition states a valid claim of the denial of a

constitutional right.” Slack, 529 U.S. at 484.

      W e have stated that “[u]nless the constitution mandates a jury instruction

be given, a habeas petitioner must show that, in the context of the entire trial, the

error in the instruction was so fundamentally unfair as to deny the petitioner due

process.” Tiger, 445 F.3d at 1267 (emphasis added). For substantially the same

reason as the magistrate judge found M r. Sims’ ineffective assistance of counsel

claim to be without merit, we conclude his contention that he was denied a fair

trial due to an erroneous jury instruction is also without merit. Our review of the

record convinces us the magistrate judge correctly concluded M r. Sims failed to

show he suffered prejudice as a result of the jury instruction. The magistrate

judge stated, and we agree that,

      [t]he state court record reflects that the question of w hether [M r.
      Sims] caused the victim’s submission to sexual intercourse by force,
      or by any other means, was not a disputed issue at trial. Similarly,
      the manner in which [M r. Sims] accomplished the sexual contact was
      not disputed at trial. [M r. Sims’] defense was that he did not have sex
      with the victim and he sought to prove his case through impeachment
      of the victim’s credibility and a lack of forensic evidence placing
      him at the crime scene. The jury was free to accept [M r. Sims’]
      defense, but chose to convict him. Once the jury rejected [M r.
      Sims’] theory of the case, the jurors could not reasonably have
      concluded that [M r. Sims] did not use physical force to cause the
      victim to submit to sexual intercourse. The victim’s testimony that
      [M r. Sims] used physical force was uncontested.

                                          -6-
Rec., vol. I, tab 20 at 11 (citation omitted). The jury instruction did not make the

jury more likely to believe M r. Sims had sex with the victim when his sole

defense was that he did not. He has failed to show that the result of his trial

would have been different but for the erroneous instruction. Thus, we conclude

he has not presented “a valid claim of the denial of a constitutional right.” Slack,

529 U.S. at 484.

      M r. Sims’ remaining claims were all rejected on the merits. Following a

careful review of the record, we conclude he has failed to show any of the alleged

errors resulted in prejudice, and thus has failed to “demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Id. at 484. W e GRANT M r. Sims’ request to proceed ifp,

D EN Y his application for a COA, and DISM ISS the appeal.

                                                Entered for the Court


                                                Stephanie K. Seymour
                                                Circuit Judge




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