                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 20, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 PAUL CHAYNE WILLIAMS,

              Petitioner - Appellant,                   No. 08-1254
 v.                                                     (D. Colorado)
 MARK BROADDUS; JOHN W.                       (D.C. No. 1:08-CV-00368-ZLW)
 SUTHERS, ATTORNEY GENERAL
 OF THE STATE OF COLORADO,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Paul Chayne Williams, proceeding pro se, filed an application for a writ of

habeas corpus under 28 U.S.C. § 2254, challenging his convictions for equity

skimming and theft in Colorado state court. The United States District Court for

the District of Colorado denied the application as untimely. Mr. Williams seeks

review in this court. We deny a certificate of appealability (COA) and dismiss

the appeal. See 28 U.S.C. § 2253(c) (requiring COA to appeal dismissal of

§ 2254 application).

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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)

(internal quotation marks omitted). In other words, an applicant must show that

the district court's resolution of the constitutional claim was either “debatable or

wrong.” Id. If the application was denied on procedural grounds,

      a COA should issue when the prisoner shows, at least, that jurists of
      reason would find it debatable whether the [application] 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. Because the prisoner must make both showings, “a court may find that it can

dispose of the application in a fair and prompt manner if it proceeds first to

resolve the issue whose answer is more apparent from the record and arguments.”

Id. at 485. Moreover, we may deny a COA “if there is a plain procedural bar to

habeas relief, even though the district court did not rely on that bar.” Davis v.

Roberts, 425 F.3d 830, 834 (10th Cir. 2005).

      The grounds for relief raised in Mr. Williams’s application all relate to

evidence in his residence found during the execution of a search warrant and the

trial court's treatment of that evidence. Detective Margaret Cassel of the

Colorado Springs Police Department obtained a warrant to search Mr. Williams’s

residence. The warrant stated that “certain documents may contain privileged




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information between attorney and client,” R. Vol. I Doc. 2 at 51; these documents

were not to be reviewed by police officers.

      Cassel found 38 boxes of documents at Mr. Williams’s residence. Judge

Theresa Cisneros, presiding over Mr. Williams’s case, ordered that the boxes be

delivered to her chambers. Although the court had originally planned for a

special master to go through the boxes to determine which documents were

privileged, it was unable to find anyone who would perform this task. Judge

Cisneros, the district attorney, and Mr. Williams’s appointed counsel, Michael

McHenry, agreed that Judge Cisneros would go through the boxes herself in

camera. Judge Cisneros then released to the district attorney’s office the evidence

from the boxes that she determined to be unprivileged; that office used the

evidence at trial to convict Mr. Williams.

      After losing a direct appeal, Mr. Williams filed a motion for postconviction

relief in the state trial court. The motion was denied, and the Colorado Court of

Appeals (CCA) affirmed. The Colorado Supreme Court denied review.

Mr. Williams now seeks federal postconviction relief under § 2254.

      Mr. Williams’s pro se application lists five grounds for relief, but they are

largely repetitive. Construing his pro se application liberally, as we must, see

Freeman v. Watkins, 479 F.3d 1257, 1259 (10th Cir. 2007), we understand

Mr. Williams to be making three claims: (1) the trial judge violated his

constitutional rights by going through the seized boxes and turning over to the

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district attorney documents that were protected by the attorney-client privilege;

(2) he was provided ineffective assistance of counsel because his attorney had a

conflict of interest, as evidenced by his attorney’s agreement to the judge’s in

camera review; and (3) his conviction was secured using evidence obtained by

executing an unconstitutional general search warrant.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that 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,” or “as 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 we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.
      Under the “unreasonable application” clause, relief is provided only
      if the state court identifies the correct governing legal principle from
      the Supreme Court's decisions but unreasonably applies that principle
      to the facts of the prisoner's case. Thus we may not issue a habeas
      writ simply because we conclude in our independent judgment that
      the relevant state-court decision applied clearly established federal
      law erroneously or incorrectly. Rather, that application must also be
      unreasonable.




                                         -4-
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets, citations, and

internal quotation marks omitted). Therefore, for those of Mr. Williams's claims

that were adjudicated on the merits in state court, “AEDPA's deferential treatment

of state court decisions must be incorporated into our consideration of [his]

request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      Mr. Williams’s first two claims were adjudicated on the merits by the CCA.

The CCA rejected Mr. Williams’s claim that the trial judge violated his

constitutional rights by conducting an in camera review of the seized boxes.

Mr. Williams has cited no authority suggesting that the CCA’s determination was

an unreasonable application of clearly established federal law. In camera review

is an appropriate method of determining whether documents are privileged. See

FDIC v. United Pacific Ins. Co., 152 F.3d 1266, 1276 n.6 (10th Cir. 1998) (“In

determining whether the relevant . . . records contain privileged communications,

the district court may adopt procedures, such as in camera review of allegedly

privileged documents, to protect against disclosure of privileged

communications.”). No reasonable jurist could debate that this claim has merit.

To the extent that Mr. Williams may be disputing the trial judge’s decisions

regarding what documents were privileged, he has failed to specify which

documents were improperly released to the district attorney’s office and has not

suggested any constitutional right that would be violated in this context. See

Harvey v. Shillinger, 76 F.3d 1528, 1534 (10th Cir. 1996) (“[T]he only injury that

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will suffice to support [an application] for habeas corpus relief [under § 2254] is

an injury to [an applicant’s] federally protected right.”).

      The CCA also rejected Mr. Williams’s ineffective-assistance-of-counsel

claim. It held that he had failed to show that his attorney “labored under an

actual conflict of interest when he met with the judge and prosecutor . . . to

discuss whether the judge could search the seized evidentiary documents for

privileged information.” R. Vol. I Doc. 2 at 116. No reasonable jurist could

debate that the CCA’s decision “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)(2).

      Finally, Mr. Williams’s general-warrant claim is procedurally defaulted.

He did not raise the claim in his direct appeal in state court. Insofar as he

attempted to raise it in the state postconviction proceedings, the CCA refused to

consider it because it “could have been, but [was] not, raised on direct appeal.”

R. Vol. I Doc. 2 at 123.

      In all cases in which a state prisoner has defaulted his federal claims
      in state court pursuant to an independent and adequate state
      procedural rule, federal habeas review of the claims is barred unless
      the prisoner can demonstrate cause for the default and actual
      prejudice as a result of the alleged violation of federal law, or
      demonstrate that failure to consider the claims will result in a
      fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). Mr. Williams has not

established “cause” or “prejudice,” nor has he demonstrated that our failure to

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consider this claim would “result in a fundamental miscarriage of justice.” Id.

Accordingly, we deny a COA on this claim.

      We DENY Mr. Williams’s request for a COA and DISMISS this appeal.

We GRANT Mr. Williams’s Motion for Leave to Proceed on Appeal Without

Prepayment of Costs or Fees.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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