                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               November 23, 2011
                                 TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 RAYMOND MARTINEZ,

              Petitioner - Appellant,
                                                       No. 11-1208
 v.                                           (D.C. No. 1:09-CV-02421-REB)
                                                      (D. Colorado)
 ARISTEDES ZAVARAS, Executive
 Director, Colorado Department of
 Corrections; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Defendant Raymond Martinez, a Colorado state prisoner proceeding pro se,

seeks a certificate of appealability (COA) to appeal the denial of his 28 U.S.C.

§ 2254 application for habeas relief. See 28 U.S.C. § 2253(c)(1)(A) (requiring

COA to appeal denial of application). We deny his request for a COA and

dismiss this appeal.

I.    BACKGROUND

      The Colorado Court of Appeals summarized as follows the facts leading to

the charges against Defendant:
      [D]efendant was wanted on a warrant for escape. Defendant emerged
      from a house police officers were watching, and the officers
      approached him. During the ensuing chase, [D]efendant displayed a
      weapon, and he was shot by an officer. A cocaine pipe, 8.5 ounces
      of cocaine, and $3,698.28 in cash were found on his person.

Judgment, People v. Martinez, No. 03CA1307 (Colo. App. Sept. 15, 2005)

(unpublished) (R., Vol. 1 pt. 2 at 304). In May 2003 a jury found Defendant

guilty of first-degree assault on a peace officer, possession of cocaine with intent

to distribute, and possession of cocaine. After a bench trial he was convicted on

four habitual-criminal counts. The state trial court sentenced him to two

concurrent 64-year terms on the assault and the intent-to-distribute convictions

and to a 24-year concurrent term on the possession conviction.

      Defendant appealed to the Colorado Court of Appeals. It affirmed except

that it vacated the conviction for possession of a controlled substance and

remanded the case to the trial court with instructions (1) to merge the charge of

possession into the charge of possession with intent to distribute and (2) to vacate

the 24-year sentence on the possession charge. On January 17, 2006, the

Colorado Supreme Court denied Defendant’s petition for a writ of certiorari.

      After the trial court vacated the 24-year sentence, Defendant filed a

postconviction motion for reconsideration of his sentence. See Colo. R. Crim. P.

35(b). The trial court denied the motion, and Defendant did not appeal. In

November 2006 he filed a postconviction application under Colo. R. Crim. P.

35(c), and the trial court again denied relief. This time, Defendant appealed. But

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because he failed to file an opening brief, the Colorado Court of Appeals

dismissed the appeal on March 20, 2009.

      On October 13, 2009, Defendant filed his § 2254 application in the United

States District Court for the District of Colorado. Defendant raised five claims:

(1) the trial court violated his Sixth Amendment right to counsel by failing to

conduct an appropriate inquiry and grant his requests for substitute counsel; (2)

he had a right to have his habitual-criminal counts tried to a jury; (3) he was

unfairly prejudiced at trial by the admission of a photograph of a drug scale and

by having to wear a taser unit; (4) he was subjected to double jeopardy because

possession of a controlled substance is a lesser-included offense of possession of

a controlled substance with intent to distribute; and (5) he received ineffective

assistance of trial counsel in several respects.

      The district court dismissed Defendant’s fourth claim as moot (which

Defendant conceded); and it dismissed his fifth claim as procedurally barred

because (a) he had failed to exhaust his ineffectiveness claim when he did not

submit a timely brief to the Colorado Court of Appeals on his appeal of the denial

of his state postconviction application, (b) any future claim would be time-barred

in state court, and (c) he had failed to present adequate grounds to overcome the

procedural default. Following the reasoning of the state appellate court, the

district court then denied Defendant’s remaining claims on the merits. It rejected

claim one because Defendant had failed to show that his counsel actively

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represented conflicting interests or that his relationship with counsel had

deteriorated sufficiently to jeopardize his right to effective assistance of counsel.

On claim two it held that under Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 542 U.S. 296 (2004), state trial courts may make factual

findings regarding a defendant’s prior convictions and impose an enhanced

sentence based on those findings. And on claim three it held that (a) the drug-

scale photograph did not render his trial fundamentally unfair because the

photograph was relevant, not unduly inflammatory, and cumulative; and (b) the

trial court did not abuse its discretion in requiring him to wear a taser unit

because he had defied orders from correctional officers, and the trial judge took

effective steps to prevent the jury from knowing that he was wearing the device.

      Defendant now seeks a COA from this court on claims one, two, three, and

five. He also asks for an evidentiary hearing on claims one and three. But

because he did not request an evidentiary hearing below, his request is not

properly before us and we will not consider it. See Fairchild v. Workman, 579

F.3d 1134, 1144 (10th Cir. 2009) (applicant “is required to properly request an

evidentiary hearing in the district court, because we ordinarily do not decide

issues raised for the first time on appeal”).

II.   DISCUSSION

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

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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, the 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,

the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show

“that jurists of reason would find it debatable . . . whether the district court was

correct in its procedural ruling.” Id. “Where a plain procedural bar is present and

the district court is correct to invoke it to dispose of the case, a reasonable jurist

could not conclude either that the district court erred in dismissing the petition or

that the petitioner should be allowed to proceed further.” Id.

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

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

federal court can grant habeas relief only if 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 “was based on an unreasonable determination of the facts in




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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.

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

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “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.” Id. (brackets and internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. For those parts of Defendant’s

claims that were adjudicated on the merits, “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).

      The district court’s opinions below are thorough and persuasive, and

Defendant has not pointed to any flaw in the analysis. No reasonable jurist could

debate the correctness of the district court’s decision, and we deny Defendant’s

request for a COA.


                                         -6-
III.   CONCLUSION

       We DENY Defendant’s application for a COA and dismiss the appeal. We

GRANT Defendant’s motion to proceed in forma pauperis.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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