                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  February 15, 2011
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court

 ERIC HUMES,

       Petitioner - Appellant,
                                                         No. 10-1517
 v.                                            (D.C. No. 1:09-CV-00757-MSK)
                                                          (D. Colo.)
 WARDEN MIKE ARELLANO; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Eric Humes, a state inmate proceeding pro se, seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. A COA is jurisdictional and

may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because this showing is lacking,

we deny a COA and dismiss the appeal.



                                    Background

      Mr. Humes was convicted of one count each of first degree murder,
attempted first degree murder, second degree assault, menacing, and third degree

assault, and was adjudicated to be a habitual criminal based on his prior

convictions. He was sentenced to a total of life imprisonment plus 82 years, 6

months, to be served consecutively. The Colorado Court of Appeals affirmed the

conviction on direct appeal, People v. Humes, No. 05CA1053 (Colo. App. Jan.

31, 2008) (unpublished), and the Colorado Supreme Court denied the petition for

certiorari.

       Mr. Humes raised nine grounds for relief in his federal habeas petition; he

asserts the same grounds in his request for a COA. Because Mr. Humes proceeds

pro se, we construe his pleadings and other papers liberally. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007). His claims allege that (1) the prosecution abused

grand jury procedures, denying him due process; the court erroneously instructed

the jury regarding (2) self defense and (3) the penalty for first degree murder, and

(4) failed to excuse a biased juror; the court erroneously (5) admitted a police

report into evidence and (6) did not allow adequate cross-examination of a key

prosecution’s witness, violating his rights under the Confrontation Clause; (7) the

court erroneously denied grant of a mistrial; (8) the prosecution committed

misconduct during closing arguments; and (9) the habitual criminal sentences

violated his right to trial by jury. The district court denied habeas relief. Humes

v. Arellano, No. 09-cv-00757-BNB, 2010 WL 4507470 (D. Colo. Nov. 1, 2010).




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                                      Discussion

      To obtain a COA, Mr. Humes must demonstrate “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 and citation omitted). Where a district court

denies a claim on procedural grounds, a petitioner must show that the district

court’s procedural ruling is reasonably debatable, as well as the underlying

constitutional claim. Id.

      Petitioner’s claim concerning the trial court’s denial to grant a mistrial

(claim 7) was dismissed by the federal district court on procedural grounds. The

court held that it had not been fairly presented to the state courts as a federal

claim and was therefore unexhausted. See Duncan v. Henry, 513 U.S. 364, 365-

66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971). Applying

anticipatory procedural bar, the court concluded that Mr. Humes could not show

cause or prejudice or a fundamental miscarriage of justice that would excuse the

bar. Humes v. Arellano, No. 1:09-cv-00757-MSK (D. Colo. July 31, 2009).

Notwithstanding that Mr. Humes claimed on direct appeal that the mistrial ruling

denied him a fair trial, the substance of the claim was whether the state district

court abused its discretion in denying a mistrial based upon one reference to the

grand jury made by a witness where the defendant objected and the court ordered

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the reference disregarded. 1 R. 46-47, 125-29. Regardless, we would defer to the

Colorado Court of Appeals’s analysis that under the circumstances prejudice had

not been shown (let alone a denial of due process).

      Because the remainder of Mr. Humes’s habeas claims were adjudicated on

the merits in state court, we must incorporate a deferential treatment of state court

decisions into our consideration of his request for a COA. Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004). Accordingly we may grant an application for a

writ of habeas corpus 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” 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).

      A state court’s decision is contrary to clearly established federal law where

“the state court arrives at a conclusion opposite to that reached by [the Supreme

Court] on a question of law” or “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at a result

opposite to [the Court’s].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state

court’s decision is an unreasonable application of clearly established federal law

where it “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. Id. at 413. Where a state court rejects a constitutional claim

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based upon harmless error, we accord that determination deference as we evaluate

whether the error “had a substantial and injurious effect or influence” on the

verdict based upon the whole record. Brecht v. Abrahamson, 507 U.S. 619, 637

(1993) (internal quotation marks and citation omitted). We presume state court

factual findings are correct, a presumption that may be rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

      The district court considered each of the remaining eight claims, upholding

the Colorado Court of Appeals’s result given the deferential standards concerning

claims 1, 2, 3, 5, 6, 8, and 9. We have carefully reviewed the claims against the

record and conclude that reasonable jurists could not debate the correctness of the

district court’s disposition with respect to these claims.

      The district court concluded that Mr. Humes was not denied an impartial

jury (claim 4) on somewhat different grounds from the state court. The Colorado

Court of Appeals concluded that it was within the trial court’s discretion to

conclude that the challenged juror would render an impartial verdict. 1 R. 40. On

direct appeal Mr. Humes had also argued that he was denied a fair trial because

he was forced to use a peremptory challenge to excuse the juror, and he ultimately

used all of his peremptory challenges. The federal district court concluded that

any potential constitutional error was cured by the juror’s removal.   Humes,

2010 WL 4507470, at *11. Because Mr. Humes removed the allegedly biased

juror by way of a peremptory challenge he did not actually contend, the district

                                         -5-
court concluded, that any of the jurors were biased or impartial. Id. at *10-11.

The district court’s conclusion that no constitutional problem was posed once

Humes removed the juror by way of peremptory challenge is not reasonably

debatable. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“[W]e reject the

notion that the loss of a peremptory challenge constitutes a violation of the

constitutional right to an impartial jury.”).

      We DENY a COA and DISMISS the appeal. We GRANT Mr. Humes’s

motion to proceed IFP.


                                         Entered for the Court


                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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