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

                            FOR THE TENTH CIRCUIT                         December 5, 2017
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DAMON DARES KEYS,

      Petitioner - Appellant,

v.                                                         No. 17-1144
                                                  (D.C. No. 1:16-CV-01072-RM)
JAMES FAULK; CYNTHIA COFFMAN,                               (D. Colo.)
Attorney General of the State of Colorado,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Damon Keys, a Colorado prisoner proceeding pro se, seeks a certificate of

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

habeas petition. We deny a COA and dismiss the appeal.

                                             I

      Keys was convicted in 1995 of two counts of attempted first degree murder,

two counts of first degree assault, two counts of aggravated robbery, and one count of

theft. The crimes were committed by a masked assailant at a drive-in movie theater

in Aurora, Colorado. The victims were theater employees. Keys was sentenced to

      *
         This order is not binding precedent, except under the doctrines of law of the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.
ninety-six years’ imprisonment. The Colorado Court of Appeals (“CCA”) reversed

his conviction and remanded for a new trial based on its conclusion that Keys was

denied his right to representation by conflict-free counsel. In that appeal, Keys

contended that the trial court should have suppressed evidence because an arrest

warrant was signed by a court clerk. The CCA concluded that Keys had waived his

right to contest the validity of the warrant on appeal because he had not advanced

that argument in the trial court.

      On retrial, Keys was convicted. In his subsequent appeal, the CCA again

reversed and remanded, this time because the trial court erred in concluding that the

law of the case precluded it from considering Keys’ argument as to his arrest warrant.

The CCA directed the trial court to conduct a hearing on Keys’ suppression motion

and to deny the motion to suppress if it determined that the warrant was not void ab

initio. After an evidentiary hearing, the trial court ruled that the arrest warrant was

not void ab initio. Keys appealed, and the CCA affirmed. He then unsuccessfully

sought post-conviction relief in state court.

      Keys filed a § 2254 petition, raising three claims: (1) evidence should have

been suppressed because it was the product of an arrest made pursuant to a void

arrest warrant; (2) police officers violated his Fourth Amendment rights when they

engaged in a pretextual arrest to seize his shoes; and (3) ineffective assistance of

counsel. The district court dismissed the second claim as procedurally barred, denied

the remainder of the petition, and denied a COA.



                                            2
                                             II

       A petitioner may not appeal the district court’s denial of § 2254 relief absent a

COA. § 2253(c)(1)(A). We will issue a COA only if a petitioner shows “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quotation omitted). As to claims dismissed on procedural grounds,

a petitioner must demonstrate that “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id.

       In applying this standard, we must consider “AEDPA’s deferential treatment

of state court decisions.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). If a

state court has rejected a claim on the merits, § 2254 relief is available only if the

state court’s adjudication “resulted in a decision that 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.” 28 U.S.C. § 2254(d)(1), (2). Because Keys proceeds pro se, we

construe his filings liberally but do not act as his advocate. Yang v. Archuleta,

525 F.3d 925, 927 n.1 (10th Cir. 2008).




                                             3
                                            A

       In his first claim, Keys argues that police violated his Fourth Amendment

rights by seizing his sneakers, which contained traces of the victims’ blood, while

executing an arrest warrant that was void ab initio. The district court concluded that

relief was barred by Stone v. Powell, 428 U.S. 465 (1976), which holds that if a

“[s]tate has provided an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted federal habeas corpus relief

on the ground that evidence obtained in an unconstitutional search or seizure was

introduced at his trial,” id. at 494 (footnote omitted).

       Keys contends that the trial court—the Arapahoe County District Court—

lacked jurisdiction to consider the validity of the warrant because it was issued by the

Denver District Court and concerned an offense that occurred in Denver County. The

district court rejected that argument because it was wholly unsupported by case law,

observing that the trial court simply ruled on a motion to suppress that was filed in a

case before it. We agree that Keys has not shown the state court contravened clearly

established federal law on this issue.

       Additionally, Keys argues that he did not have a fair opportunity to litigate his

claim because the state courts misinterpreted the facts and the law. However, the

CCA recognized and made a colorable application of the correct Fourth Amendment

standards, which is all that is required for a full and fair opportunity to litigate under

Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978). Substantive



                                             4
disagreement with the outcome of a state court proceeding is insufficient to warrant

habeas relief. See Matthews v. Workman, 577 F.3d 1175, 1194 (10th Cir. 2009).

                                             B

       In his second claim, Keys asserts that police officers violated his Fourth

Amendment rights when they arrested him as a pretext for seizing his shoes. In

support of this argument, he contends that a Denver District Court clerk issued the

arrest warrant on the day of his arrest, August 11, but backdated it to August 2. The

district court dismissed this claim as procedurally barred.

       In ruling on his first appeal, the CCA stated Keys abandoned this argument.

Keys presented a pretextual-arrest claim in his motion to suppress following the

second remand, but was prevented from raising it at the hearing on that motion. He

did not advance the issue when he appealed the denial of his suppression motion to

the CCA in his third appeal. The claim was thus never fairly presented to the CCA.

See Ellis v. Raemisch, 872 F.3d 1064, 1077, 1082 (10th Cir. 2017) (holding that

Colorado Appellate Rule 51.1(a) “renders [Colorado Supreme Court] review

‘unavailable’ for purposes of AEDPA exhaustion” and therefore in Colorado a

§ 2254 petitioner need only fairly present his claim to the CCA), petition for cert.

filed, ___ U.S.L.W. ___ (U.S. Oct. 5, 2017) (No. 17-6323).

       First, Keys asserts that in their pre-answer response, respondents argued only

that he failed to raise this claim before the state courts, and thus the district court

should have construed respondents’ defense as limited to whether he had raised the



                                             5
claim at all. We disagree. The scope of respondents’ exhaustion argument was not

limited to whether he had ever raised the claim before any state court.

       Keys also argues that he did not abandon his pretextual-arrest claim in his first

appeal to the CCA because, he asserts, the CCA wrote a five-page ruling on that

claim. But the ruling that Keys points to concerns an alternative to his void-ab-initio

argument—that it was unlawful for officers to seize his shoes for testing because the

shoes bore no relationship to his failure to appear and officers failed to act in

accordance with procedures. In his habeas claim, however, he alleged that the arrest

itself was unlawful, a different and distinct theory. See Williams v. Trammell,

782 F.3d 1184, 1210 (10th Cir. 2015) (fair presentation requires a petitioner to raise

the “substance of his federal claims,” including “the constitutional guarantee at

issue” and “the underlying facts that entitle a petitioner to relief” (quotation

omitted)); Jones v. Hess, 681 F.2d 688, 694 (10th Cir. 1982) (concluding that a

habeas claim is unexhausted “where the factual basis for [it] was not presented to the

state courts”).

                                            C

       Keys advances six subclaims related to ineffective assistance of counsel:

(1) the retrial court denied his requests to substitute conflict-free counsel; (2) counsel

failed to investigate, independently test, and challenge forensic evidence; (3) counsel

ineffectively investigated and cross-examined one of the victims; (4) counsel

ineffectively investigated and cross-examined Keys’ girlfriend; (5) counsel failed to



                                            6
advance a reasonable-doubt defense; and (6) counsel failed to object to prosecutorial

misconduct.1 We conclude that none of these subclaims warrants a COA.

      On subclaim one, the CCA reasonably concluded that any actual conflict did

not have an adverse effect on Keys’ counsel, as required to meet the

deficient-performance prong of the familiar test announced in Strickland v.

Washington, 466 U.S. 668, 687 (1984).2 The CCA reasonably held that Keys’ second

subclaim failed because there is no indication that further investigation or testing of

forensic evidence would have been exculpatory.

      The district court reviewed subclaims three, four, and five de novo. Although

Keys did not present the factual bases for these subclaims to the state courts (and thus

the state courts never ruled on the merits), respondents did not raise an affirmative

exhaustion defense. Keys claimed that counsel failed to expose the fact that one of

the victims knew Keys prior to the assault but did not identify him when seeking

help. But the victim, whose skull was fractured during the attack, testified that he did

not even remember seeking help. Keys also asserted that counsel should have

discovered that Keys’ girlfriend attempted to obtain a telephone confession from him

while he was in jail. But counsel did cross-examine the girlfriend about inconsistent


      1
         At the district court level, Keys advanced two additional subclaims that are
forfeited on appeal.
      2
        With regard to a possible presumption of prejudice for claims involving an
actual conflict of interest, Keys has not made a threshold showing of clearly
established federal law by the Supreme Court, which ends the inquiry under
§ 2254(d)(1). See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).

                                           7
statements to the police and immunity she had been granted for her role in the crimes,

and the prosecution did not present any evidence of a jailhouse confession. And

Keys argues that counsel foreclosed a reasonable-doubt defense by arguing that

police had arrested the wrong suspect. But as the district court noted, this statement

was entirely consistent with a reasonable-doubt defense given that identification of

the assailant was the only real issue at trial. Accordingly, Keys cannot show

deficient performance or prejudice under Strickland on any of these subclaims.3

      Finally, in subclaim six, Keys contends that defense counsel was ineffective

for failing to object when the prosecution referred to an area mentioned during the

case as Keys’ “hood” and allegedly imitated “a stereotypical African-American

dialect, while smirking.” The CCA reasonably rejected this claim because Keys

admitted that it was not fully developed in the record. See Cullen v. Pinholster, 563

U.S. 170, 181 (2011) (review under § 2254 “is limited to the record that was before

the state court that adjudicated the claim”).

      3
         To the extent Keys reasserts the factually dissimilar claims he exhausted in
the state courts (that counsel inadequately impeached the victim’s voice and mask
identification, and that the communication difficulty between Keys and his defense
counsel deprived them of information necessary to effectively examine the
girlfriend), the CCA reasonably concluded that Keys had nothing but speculation
regarding what might have been revealed through more effective cross-examination.
And if Keys is reasserting a related claim he raised in state court (that counsel was
ineffective by failing to assert a reasonable-doubt defense), the CCA reasonably
rejected it because the jury was instructed that the prosecution must prove each
element of each offense beyond a reasonable doubt, and defense counsel specifically
argued during closing that the jury should have a reasonable doubt about the
prosecution’s version of events.




                                            8
                                          III

      For the foregoing reasons, we DENY a COA and DISMISS this appeal. We

GRANT Keys’ motion to proceed on appeal without prepayment of costs or fees and

remind him of his obligation to pay those costs and fees in full to the Clerk of the

District Court for the District of Colorado. See 28 U.S.C. § 1915(a).


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




                                           9
