                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                    October 6, 2010
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 ALBERT GONZALES,

          Petitioner-Appellant,

 v.                                                       No. 09-1268
                                             (D.C. No. 1:08-CV-00589-WYD-CBS)
 WARDEN STEVE HARTLEY; THE                                 (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, and KELLY and HOLMES, Circuit Judges.


      Petitioner-Appellant Albert Gonzales, a Colorado state prisoner appearing

pro se, 1 appeals the district court’s dismissal of his application for a writ of

      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Gonzales is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
                                                                           (continued...)
habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we

deny his request for a certificate of appealability (“COA”) 2 and dismiss the

appeal.

I. BACKGROUND

      While a prisoner in the custody of the Colorado Department of Corrections

at the Limon Correctional Facility in Limon, Colorado, Mr. Gonzales filed a pro

se § 2254 petition challenging the validity of his state-court conviction. Mr.

Gonzales was sentenced to life in prison without the possibility of parole after

being convicted of one count of first degree murder after deliberation. The

murder victim was Mr. Gonzales’s girlfriend, whom he admits killing. Mr.

Gonzales argues, however, that the killing was not an intentional act following

deliberation. Mr. Gonzales was represented by two lawyers from the public

defender’s office.

      The Colorado Court of Appeals affirmed his conviction on direct appeal.

See People v. Gonzales, No. 00CA1205, 2002 WL 31033345 (Colo. App. May 16,

2002) (“Gonzales I”). On September 16, 2002, the Colorado Supreme Court

denied Mr. Gonzales’s petition for writ of certiorari. Mr. Gonzales also filed a



      1
          (...continued)
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
      2
             Because Mr. Gonzales has not filed a specific request for a COA in
this court, we construe his notice of appeal to be such a request pursuant to
Federal Rule of Appellate Procedure 22(b)(2) and Tenth Circuit Rule 22.1(A).

                                          2
post-conviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal

Procedure, which the trial court denied, and on August 16, 2007, the Colorado

Court of Appeals affirmed that denial. See People v. Gonzales, No. 05CA2215,

2007 WL 2332528 (Colo. App. Aug. 16, 2007) (“Gonzales II”). On December 17,

2007, the Colorado Supreme Court denied Mr. Gonzales’s petition for writ of

certiorari in the post-conviction proceedings. Mr. Gonzales filed his § 2254

petition on March 12, 2008.

      In this § 2254 petition, Mr. Gonzales asserts six claims for relief: 1) trial

counsel provided ineffective assistance by coercing Mr. Gonzales to waive his

right to testify; 2) trial counsel were ineffective due to a conflict of interest; 3)

trial counsel were ineffective due to a failure in communication with Mr.

Gonzales and by failing to call an expert witness to testify regarding a brain

injury Mr. Gonzales had suffered in 1992; 4) Mr. Gonzales was denied a fair trial

when the trial court denied his challenges for cause of two prospective jurors; 5)

Mr. Gonzales was denied a fair trial when the police failed to collect and preserve

exculpatory evidence; 3 and 6) Mr. Gonzales was denied a fair trial when the trial

court improperly admitted hearsay evidence of his prior bad acts of domestic

violence against the victim.


      3
             Mr. Gonzales conceded before the district court that the fifth claim
lacked merit, and therefore the district court did not address its merits and
dismissed the claim. Mr. Gonzales does not contend that the district court erred
on this point.

                                           3
      The district court set out the appropriate standard of review pursuant to 28

U.S.C. § 2254(d), then discussed the state court’s handling of each of his claims,

and denied each of the claims on the merits, explaining that the state court’s

resolution of the issues was not contrary to or an unreasonable application of

clearly established federal law, nor was it an unreasonable determination of the

facts in light of the evidence presented. Consequently, the district court denied

the petition. It subsequently declined to issue a COA, but granted Mr. Gonzales’s

request to proceed in forma pauperis on appeal. This appeal followed. 4

II. ANALYSIS

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

circumscribes our review of Mr. Gonzales’s appeal. Unless Mr. Gonzales has

made “a substantial showing of the denial of a constitutional right,” we may not

grant his request for a COA. 28 U.S.C. § 2253(c)(2). To overcome this hurdle,

Mr. Gonzales must show “‘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

      4
              Mr. Gonzales did not file his notice of appeal within the thirty-day
period required by the Federal Rules of Appellate Procedure. See Fed. R. App. P.
4(a)(1) (“In a civil case, . . . the notice of appeal required by Rule 3 must be filed
with the district clerk within 30 days after the judgment or order appealed from is
entered.”). However, he did comply with the timing requirement of Federal Rule
of Appellate Procedure 4(a)(5)(A)(i), and the district court granted his motion for
an extension of time to file his notice of appeal. We do not question the propriety
of the district court’s resolution of Mr. Gonzales’s motion and deem Mr.
Gonzales’s appeal to be timely filed.

                                          4
proceed further.’” Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007)

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); accord Allen v. Zavaras,

568 F.3d 1197, 1199 (10th Cir. 2009). In determining whether to grant a COA,

we need not engage in a “full consideration of the factual or legal bases adduced

in support of the claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Instead, we undertake “a preliminary, though not definitive, consideration of the

[legal] framework” applicable to each claim. Id. at 338. Although an applicant is

not required to demonstrate that his appeal will succeed, he must “prove

something more than the absence of frivolity or the existence of mere good faith

on his or her part.” Id. (internal quotation marks omitted).

      Moreover, because the Colorado Court of Appeals addressed the merits of

Mr. Gonzales’s claims, “AEDPA’s deferential treatment of state court decisions

must be incorporated into our consideration of [his] request for [a] COA.”

Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA, we may

grant an application for a writ of habeas corpus on behalf of an individual in state

custody on a claim that was adjudicated on the merits in the state court only if the

state court’s 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).

                                          5
      Having reviewed the record on appeal thoroughly, we conclude that Mr.

Gonzales is not entitled to a COA on any of the issues that he seeks to pursue on

appeal. We will briefly address each in turn.

A. Ineffective Assistance of Counsel Claims

      Because Mr. Gonzales’s COA application rests in part on a claim of

ineffective assistance of counsel, in order to determine if he can make a

substantial showing of a denial of a constitutional right, we must first undertake

an analysis of his claims in light of the two-part test for ineffective assistance

outlined in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a

petitioner must show, first, that counsel’s performance was deficient—that the

“representation fell below an objective standard of reasonableness” as measured

by “prevailing professional norms.” Id. at 687–88. Second, the petitioner must

establish prejudice—“that there is a reasonable probability that, but for counsel’s

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

Id. at 694. We can review these two components in any order, and do not need to

address both “if the defendant makes an insufficient showing on one.” Id. at 697.

      The district court found that Mr. Gonzales could not meet this two-pronged

test for any of his ineffective assistance of counsel claims. On appeal, Mr.

Gonzales raises the same three claims with respect to ineffective assistance of

counsel, supported by largely the same arguments rejected by the district court.

Even giving solicitous consideration to his pro se filings, we conclude that Mr.

                                           6
Gonzales cannot make a substantial showing of the denial of a constitutional right

as to any of the ineffective assistance of counsel claims he raises, so we cannot

issue a COA on any of them.

         With respect to the first claim—whether his counsel coerced him to waive

his right to testify—reasonable jurists could not disagree with the district court’s

conclusion in upholding the state court’s ruling under AEDPA that “the advice

Mr. Gonzales received from his attorney, that his testimony would have

significantly damaged his case and enhanced the chance of conviction, was

correct” and that he failed “to present any clear and convincing evidence to

overcome the presumptively correct state court factual determination that he was

not threatened by his attorney with respect to his decision to testify.” R. at 319

(Order of Dismissal, dated May 12, 2009). Therefore, we deny a COA on this

claim.

         With respect to the second claim, Mr. Gonzales contends that he received

ineffective assistance of counsel due to his trial counsel’s failure to call a

witness—the hotel maid—because the maid had previously been represented by

the same public defender’s office that employed his trial counsel. While Mr.

Gonzales persists in arguing that there is a significant difference between the

maid’s version of events (she did not testify at the trial) and the manager’s (he did

testify at the trial), the state court concluded that there was little difference

between the two individuals’ versions of the events and, thus, determined that Mr.

                                            7
Gonzales had not established that any conflict of interest of his trial counsel

adversely affected counsel’s performance or prejudiced him. The district court

agreed with the state court’s analysis of this issue and upheld the state court’s

ruling under AEDPA standards. We do not believe that reasonable jurists could

disagree with the district court’s determination of this claim.

      Finally, Mr. Gonzales contends that his counsel were ineffective for failing

to call an expert witness to testify regarding a brain injury. 5 The state court

concluded that this was a strategic decision based upon a consideration of the full

implications of the expected testimony. Specifically, counsel considered that any

discussion of Mr. Gonzales’s brain injury also would lead to the possibility of

extensive testimony concerning Mr. Gonzales’s prolonged drug and alcohol

abuse. The district court agreed with the state court’s reasoning and upheld its

ruling under AEDPA standards. In particular, the district court pointed out,

“‘[w]hether to raise a particular defense is one aspect of trial strategy, and

informed strategic or tactical decisions on the part of counsel are presumed

correct, unless they were completely unreasonable, not merely wrong.’” Id. at

324 (quoting Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir.

2005)). Mr. Gonzales has the burden of establishing that counsel’s decision

concerning the presentation of the expert evidence was not the product of a

      5
              Mr. Gonzales has narrowed this claim on appeal as he does not
reassert that his trial counsel were ineffective due to a breakdown in
communication as he did before the district court.

                                           8
reasonable strategic choice. See Bullock v. Carver, 297 F.3d 1036, 1047 (10th

Cir. 2002). Reasonable jurists could not disagree with the district court’s

conclusion that he failed to carry that burden.

B. Fair Trial Claims

      In Mr. Gonzales’s last two claims, he argues that he did not receive a fair

trial because the trial court denied his challenges for cause with respect to two

jurors and because the trial court erroneously admitted hearsay evidence of his

prior bad acts of domestic violence against the victim. We agree with the district

court’s resolution of these claims. Mr. Gonzales has failed to make a substantial

showing of the denial of a constitutional right.

      The district court upheld under AEDPA standards the Colorado Court of

Appeals’s rejection of Mr. Gonzales’s juror bias claim. In doing so, the district

court concluded that Mr. Gonzales eliminated the potential for constitutional error

when he used his peremptory challenges to remove the two allegedly biased jurors

from his panel. See Ross v. Oklahoma, 487 U.S. 81, 86 (1988) (explaining that

“[a]ny claim that the jury was not impartial, therefore, must focus . . . on the

jurors who ultimately sat”). And Mr. Gonzales’s constitutional rights were not

violated because he had to use his peremptory challenges to achieve an impartial

jury. See id. at 88 (“[W]e reject the notion that the loss of a peremptory

challenge constitutes a violation of the constitutional right to an impartial jury.”).

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

                                           9
resolution of this issue.

       Finally, Mr. Gonzales argues that he was denied a fair trial because the trial

court incorrectly admitted hearsay evidence of prior bad acts. Reasonable jurists

could not disagree with the district court’s conclusion that the admission of this

evidence did not render his trial fundamentally unfair. As the district court

explained:

              It is not the province of a federal habeas court to reexamine state-
              court determinations on state-law questions. In conducting
              habeas review, a federal court is limited to deciding whether a
              conviction violated the Constitution, laws, or treaties of the
              United States. Therefore, habeas relief may not be granted on the
              basis of state court evidentiary rulings unless they rendered the
              trial so fundamentally unfair that a denial of constitutional rights
              results.

R. at 327 (brackets omitted) (citations omitted) (internal quotation marks

omitted). After reviewing the record, it is clear that reasonable jurists could not

disagree with the district court’s conclusion that the admission of this evidence

did not “fatally infect[] the trial.” Id.

III. CONCLUSION

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



                                            ENTERED FOR THE COURT


                                            Jerome A. Holmes
                                            Circuit Judge


                                             10
