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

                                    TENTH CIRCUIT                                 June 18, 2019

                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
  TERRANCE L. JOHNSON,

                Petitioner - Appellant,

  v.                                                           No. 19-1044
                                                      (D.C. No. 1:16-CV-02731-LTB)
  RICK RAEMISCH; PHIL WEISER,                                 (D. Colorado)
  Attorney General of the State of
  Colorado,

                Respondents - Appellees.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY *


Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.



       Terrance L. Johnson, a Colorado state prisoner acting pro se,1 seeks a certificate of

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

under 28 U.S.C. § 2254. Specifically, Mr. Johnson contests the district court’s denial of

his motion for reconsideration regarding his case’s dismissal and a magistrate judge’s


       *
        This order is not binding precedent, except under the doctrines of law of the case,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 10th Circuit Rule 32.1.
       1
         Because Mr. Johnson appears before us pro se, we liberally construe his
pleadings. Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994). “[T]his rule of
liberal construction stops, however, at the point at which we begin to serve as his
advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
refusal to appoint counsel. Exercising our jurisdiction under 28 U.S.C. § 1291, we deny

Mr. Johnson’s application for a COA.

                                        BACKGROUND

       The State of Colorado charged Mr. Johnson with two counts of sexual assault of

an at-risk victim. These charges arose in connection with statements made by the sixteen-

year-old, developmentally disabled daughter of Mr. Johnson’s friend that Mr. Johnson

had engaged in sexual intercourse with her on two occasions—once in the garage of her

home and once in her bedroom. A jury found Mr. Johnson guilty of the bedroom incident

but not guilty of the incident alleged to have occurred in the garage. The Colorado Court

of Appeals affirmed Mr. Johnson’s conviction on direct appeal.

       Mr. Johnson then filed a pro se postconviction motion pursuant to Colo. Crim. P.

35(c), claiming his trial counsel had provided ineffective assistance in a number of ways,

including by failing to investigate and present certain defense witnesses, including Joseph

Burnham, and by failing to secure an expert witness to challenge the prosecution’s

medical evidence. The state postconviction court appointed counsel to represent Mr.

Johnson, and appointed counsel submitted a brief in support of Mr. Johnson’s 35(c)

motion. This brief reiterated Mr. Johnson’s argument that trial counsel had been

ineffective for failing to call Mr. Burnham but made no mention of trial counsel’s failure

to secure an expert witness. Later, at a hearing before the state postconviction court, Mr.

Johnson’s appointed counsel withdrew the assertion that trial counsel had been

ineffective for failing to investigate or call Mr. Burnham “because the [trial counsel’s]

file reflected Mr. Burnham had spoken with [trial counsel].”

                                                 2
       The state postconviction court ultimately denied Mr. Johnson’s 35(c) motion. It

noted that Mr. Johnson had withdrawn his ineffective-assistance claim regarding the

alleged failure to investigate or to call Mr. Burnham but did not address Mr. Johnson’s

claim that trial counsel had provided ineffective assistance by failure to secure an expert

witness.

       Mr. Johnson appealed the denial of his 35(c) motion to the Colorado Court of

Appeals (“CCA”). In the opening brief, postconviction appellate counsel argued that

Mr. Johnson’s trial counsel had failed to investigate and present testimony from alibi

witnesses, not including Mr. Burnham, and failed to subpoena another witness. Although

the postconviction appeal brief noted in a “statement of the facts and case” that trial

counsel had been “faulted for not securing an expert witness to refute the [prosecution

expert’s] medical testimony,” the brief does not claim that trial counsel had provided

ineffective assistance by neglecting to do so. ROA at 208.

       The CCA affirmed the postconviction court’s denial of Mr. Johnson’s 35(c)

motion without addressing trial counsel’s failure to call Mr. Burnham or failure to secure

an expert witness.

       Mr. Johnson then commenced the present action by filing pro se a petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. At the district court’s direction, Mr.

Johnson filed an amended petition raising two claims for ineffective assistance of trial

counsel, based on (1) counsel’s failure to investigate and present Mr. Burnham as an alibi

witness, and (2) counsel failure to secure an expert witness to testify regarding the

medical evidence.

                                                 3
       The district court found that Mr. Johnson had not exhausted either claim in state

court. Because Mr. Johnson had not presented either claim for resolution to the CCA, the

district court found he had failed to invoke “one complete round of the State’s established

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Any further

attempt by Mr. Johnson to exhaust these claims would be untimely or otherwise barred

by Colorado’s rules of criminal procedure, and therefore the district court held Mr.

Johnson’s claims subject to an anticipatory procedural bar. The district court further

noted that Mr. Johnson had not established cause and prejudice for the default or

demonstrated that failure to consider the claim would result in a fundamental miscarriage

of justice. And because Mr. Johnson had not yet alleged that his initial-review

postconviction counsel had been ineffective, the rule in Martinez v. Ryan, 566 U.S. 1

(2012)—that “[i]nadequate assistance of counsel at initial-review collateral proceedings

may establish cause for [procedural default]”—did not apply. Id. at 9. The district court

denied a COA.

       Mr. Johnson filed a motion for reconsideration, arguing that his initial-review

postconviction counsel and appellate postconviction counsel had been ineffective,

justifying application of the Martinez rule. The district court denied this motion as well,

noting that Fed. R. Civ. P. 60(b), which authorizes motions to alter or amend final

judgments, is “not an appropriate vehicle” for advancing new arguments. Lebahn v.

Owens, 813 F.3d 1300, 1306 (10th Cir. 2016). Nevertheless, in consideration of Mr.

Johnson’s pro se status, the district court explained why Mr. Johnson’s Martinez

arguments failed. With respect to Mr. Johnson’s first claim for ineffective assistance

                                                 4
regarding the failure to investigate or call Mr. Burnham, the district court explained Mr.

Johnson had not shown that the claim has “some merit,” Martinez 566 U.S. at 14,

because the state court record indicates that trial counsel did contact Mr. Burnham,

suggesting the decision not to call him to testify was strategic, and in any event Mr.

Burnham’s testimony would have been merely corroborative. With respect to Mr.

Johnson’s second claim of ineffective assistance, the district court noted that Martinez

does not excuse defaults based on the ineffective assistance of postconviction counsel.

       Mr. Johnson timely filed a combined opening brief and application for a COA.2


       2
          In his COA application and notice of appeal, Mr. Johnson purports to challenge
the district court’s order denying reconsideration rather than the district court’s order
dismissing his petition for relief pursuant to § 2254. As the district court observed,
however, a motion for reconsideration is not an appropriate vehicle for new arguments,
and Mr. Johnson’s motion for reconsideration (and the new arguments he asserted
therein) could properly be rejected on that basis. Lebahn v. Owens, 813 F.3d 1300, 1306
(10th Cir. 2016) (“[A] Rule 60(b) motion is not an appropriate vehicle to advance new
arguments or supporting facts that were available but not raised at the time of the original
argument.”). Strictly applying the 60(b)(1) standard would severely limit our
consideration of Mr. Johnson’s claims, since errors raised in a motion for reconsideration
must typically be “obvious and apparent on the record . . . to justify 60(b)(1) relief.” Id.
        We have discretion, however, to treat an appeal from a postjudgment order as an
appeal from a final judgment. Ward v. San Diego Cty., 791 F.2d 1329, 1331 (9th Cir.
1986) (citing Foman v. Davis, 371 U.S. 178, 181 (1962)) (“[C]ourts of appeal may treat
an appeal from a postjudgment order as an appeal from the final judgment.”). In
consideration of Mr. Johnson’s pro se status, therefore, we will treat Mr. Johnson’s
appeal from the district court’s motion for reconsideration as an appeal from the district
court’s underlying dismissal of his petition for relief pursuant to § 2554, and like the
district court, we will explain why Mr. Johnson’s Martinez arguments, raised for the first
time in his motion for reconsideration, would fail even if they had been properly raised in
his original § 2254 petition.
        Relatedly, Mr. Johnson claims the district court should have construed his motion
for reconsideration as a “subsequent habeas petition” or a second amended petition. Aplt.
Br. at 18. But construing the motion for reconsideration as a subsequent petition would
have deprived the district court of jurisdiction to address his claims. Yellowbear v.
Michael, 570 F. App’x 798, 799 (10th Cir. 2014) (unpublished) (“In the absence of
                                                 5
                            CERTIFICATE OF APPEALABILITY

       To appeal the district court’s denial of his § 2254 petition, Mr. Johnson must first

obtain a COA, which is available only if Mr. Johnson can establish “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Making this

showing requires Mr. Johnson to 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)). Here, the district court concluded Mr. Johnson had

failed to meet his burden and denied him a COA.

       When the district court has disposed of a claim on procedural grounds, such as

failure to exhaust, we will issue a COA only when the petitioner meets a two-part

standard, showing both 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.” Slack,

529 U.S. at 478; see Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (“If the

application was denied on procedural grounds, the applicant faces a double hurdle.”).




[authorization from the court of appeals] . . . a district court lacks jurisdiction to address
the merits of a second or successive § 2254 claim.”). And the district court could not have
considered the motion for reconsideration as an amended § 2254 petition because it had
already denied Mr. Johnson’s § 2254 petition, although it effectively did so by explaining
why Mr. Johnson’s new Martinez arguments would have failed even if they had been
raised in his initial petition.
                                                  6
                                            ANALYSIS

       To successfully challenge a state conviction, a § 2254 petitioner must demonstrate

either that he has exhausted all available remedies in state court or that “there is an

absence of available State corrective process” or “circumstances exist that render such

process ineffective to protect” his rights. 28 U.S.C. § 2254(b)(1).3

       In general, a petitioner’s federal constitutional claim “has been exhausted when it

has been ‘fairly presented’ to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th

Cir. 2006). “[T]he crucial inquiry is whether the substance of the petitioner’s claim has

been presented to the state courts in a manner sufficient to put the courts on notice of the

federal constitutional claim.” Prendergast v. Clements, 699 F.3d 1182, 1184 (10th Cir.

2012) (internal quotation marks omitted). To fairly present a claim, and therefore to

exhaust it, state prisoners “must give the state courts one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate

review process.” O’Sullivan, 526 U.S. at 845 (emphasis added); see Young v. Westbrooks,

702 F. App’x 255, 258 (6th Cir. 2017) (explaining claims were procedurally defaulted

when they were raised during initial state postconviction proceeding but not “re-raised by

[the petitioner] on state postconviction appeal”).

       When a petition contains unexhausted claims, a federal court may apply an

“anticipatory procedural bar” to those claims if “the court to which the petitioner would


       3
         Mr. Johnson does not argue either “absence of available State corrective process”
or that “circumstances exist that render such process ineffective.” 28 U.S.C.
§ 2254(b)(1)(i), (ii). Accordingly, he must have exhausted all available state-court
remedies to challenge his conviction on federal habeas.
                                                  7
be required to present his claims in order to meet the exhaustion requirement would now

find the claims procedurally barred.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir.

2000) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). This anticipatory

bar will preclude a claim from federal habeas review if the claim has “been defaulted in

state court on an independent and adequate state procedural ground, unless the petitioner

can demonstrate cause and prejudice or a fundamental miscarriage of justice.” Anderson

v. Sirmons, 476 F.3d 1131, 1140 (10th Cir. 2007) (internal quotation marks omitted).

       The district court determined that Mr. Johnson failed to exhaust either of his

ineffective-assistance claims because he had not invoked “one complete round of the

State’s established appellate review process.” O’Sullivan, 526 U.S. at 845. Because the

state court would now find them procedurally barred,4 and because Mr. Johnson could

show neither cause and prejudice nor a fundamental miscarriage of justice, the district


       4
          The district court concluded that Colorado state courts would find any attempt by
Mr. Johnson to file an additional postconviction 35(c) motion exhausting his claims
untimely based on Colo. Rev. State. § 16-5-402, which provides that defendants
convicted of felonies other than class 1 felonies have three years in which to collaterally
attack the validity of their convictions. See Colo. Rev. Stat. § 16-5-402(1). Mr. Johnson’s
conviction became final when it was affirmed on appeal in 2011, and thus the time period
in which he could file a 35(c) motion expired in 2014. People v. Johnson, No.
07CA2321, 2011 WL 553752, at *1 (Colo. App. Feb. 17, 2011); see People v. Hampton,
876 P.2d 1236, 1240 (Colo. 1994) (holding a conviction becomes final for purposes of
§ 16-5-402 “after a defendant’s appeal has been exhausted”).
        Alternatively, Colo. R. Crim. P. 35(c)(3)(VII) requires Colorado state courts to
“deny any claim that could have been presented in . . . [a] postconviction proceeding
previously brought.” Colo. R. Crim. P. 35(c)(3)(VII) (listing various exceptions
inapplicable here). Since each of Mr. Johnson’s two ineffective-assistance claims were, in
fact, raised in his 35(c) motion, Colo. R. Crim. P. 35(c)(3)(VII) would require the state
court to deny any attempt by him to re-raise and exhaust these claims in a future 35(c)
motion.

                                                8
court further concluded that both claims were subject to an anticipatory procedural bar

and precluded from federal habeas review. Mr. Johnson concedes that neither of his

ineffective-assistance were exhausted in state postconviction proceedings. Accordingly,

we review only the district court’s application of an anticipatory procedural bar to

preclude Mr. Johnson’s claims from federal habeas review.5

1. Anticipatory Procedural Bar

       We apply an anticipatory bar to “issues that have been defaulted in state court on

an independent and adequate state procedural ground, unless the petitioner can

demonstrate cause and prejudice or a fundamental miscarriage of justice.” Anderson, 476

F.3d at 1140 (internal quotation marks and citation omitted).6 Mr. Johnson does not


       5
         Separately, Mr. Johnson contends the district court “should have seen that the
[Colorado] postconviction court mechanically applied Strickland” and the Colorado
postconviction court should have used a “fundamental fairness” rather than an “outcome
determinative” standard to assess Strickland’s prejudice prong in regard to Mr. Johnson’s
claim of ineffective assistance of trial counsel. But the district court did not reach the
merits of Mr. Johnson’s ineffective-assistance-of-trial-counsel claims because it
determined those claims had not been exhausted, and “a state prisoner’s federal habeas
petition should be dismissed if the prisoner has not exhausted available state remedies as
to any of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). And to
the extent that Mr. Johnson argues Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)
changed Strickland’s prejudice prong as pertinent to our analysis, he is incorrect. In
Weaver, the court merely “assume[d], as [the petitioner] ha[d] requested, that even if
there is no showing of a reasonable probability of a different outcome, relief still must be
granted if the defendant shows that attorney errors rendered the trial fundamentally
unfair.” Id. at 1903–04. The Court confirmed that “To demonstrate prejudice in most
cases, the defendant must show ‘a reasonable probability that . . .the result of the
proceeding would have been different’ but for attorney error.” Id. at 1903 (quoting
Strickland v. Washington, 466 U.S. 668, 695 (1984).
       6
        Contrary to Mr. Johnson’s argument, he is not entitled to a stay under Rhines v.
Weber, 544 U.S. 269 (2005). Under Rhines, districts courts have discretion to stay and
abate habeas proceeding to allow petitioners to exhaust unexhausted claims. See id. at
                                                 9
challenge the independence or adequacy of Colo. Rev. State. § 16-5-402 or Colo. R.

Crim. P. 35(c)(3)(VII), and our case law would not support such a challenge. See LeBere

v. Abbott, 732 F.3d 1224, 1233 n.13 (10th Cir. 2013) (listing unpublished cases finding

Rule 35(c)(3)(VII) to be an independent and adequate state ground precluding federal

habeas review). Nor does Mr. Johnson allege that a “fundamental miscarriage of justice”

excuses his defaults.7 Only the cause and prejudice exception remains, application of

which turns upon Martinez.

       Martinez establishes that “[i]nadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s procedural default of a claim

of ineffective assistance at trial.” 566 U.S. at 9. For Martinez to apply, Mr. Johnson must



273–79. But, as discussed below, Mr. Johnson’s unexhausted claims are subject to an
anticipatory procedural bar because the claims would be “barred under state law if the
petitioner returned to state court” in an attempt to exhaust them. Moore v. Schoeman, 288
F.3d 1231, 1233 n.3 (10th Cir. 2002). Any such attempt by Mr. Johnson would be futile
based on Colo. Rev. Stat. § 16-5-402 or Colo. R. Crim. P. 35(c)(3)(VII). This remains
true despite Mr. Johnson’s recent apparent filing of a successive 35(c) motion in
Colorado district court. Moreover, as discussed below, Mr. Johnson has not established
cause for his failure to exhaust, making a stay under Rhines inappropriate. See Rhines,
544 U.S. at 277 (“[S]tay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims first in
state court.”).
       7
         Although Mr. Johnson’s application to this court uses the phrase “fundamental
miscarriage of justice,” Aplt. Br. at 10, his argument overwhelmingly focuses on the
cause and prejudice exception articulated in Martinez v. Ryan, 566 U.S. 1 (2012).
Furthermore, the fundamental miscarriage of justice exception only excuses a failure to
exhaust when “a constitutional violation has probably resulted in the conviction of one
who is actually innocent,” Selsor v. Kaiser, 22 F.3d 1029, 1034 (10th Cir. 1994)
(quotation marks and citation omitted), and Mr. Johnson has conceded that his claim of
actual innocence is “insufficient on its face with the current supporting facts,” ROA at
380, so the exception would not apply even if he had raised it.
                                                10
show both that his initial-review postconviction counsel was ineffective and that his

underlying ineffective-assistance-of-trial-counsel claim is “substantial,” “which is to say

that [Mr. Johnson] must demonstrate that the [underlying] claim has some merit.” Id. at

14.

        The district court concluded that Martinez could not excuse the default of either of

Mr. Johnson’s claims because (1) his first claim lacks “some merit” and (2) his second

claim was defaulted by appellate post-conviction counsel, rather than initial-review

postconviction counsel. We review each of these conclusions under our COA standard in

turn.

        a. Alibi Witness Burnham Claim

        Reasonable jurists could not debate the district court’s application of an

anticipatory procedural bar to Mr. Johnson’s first claim that his trial counsel provided

ineffective assistance by failing to investigate and present Mr. Burnham as a witness.

Mr. Johnson’s underlying ineffective-assistance-of-trial-counsel claim lacks “some

merit,” and is therefore not so substantial as to justify application of Martinez. Id. at 14.

        To succeed on his ineffective-assistance-of-trial-counsel claim, Mr. Johnson

would need to prove deficient performance and prejudice. Strickland v. Washington, 466

U.S. 668, 687 (1984). To show prejudice, Mr. Johnson “must show 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.

        In his § 2254 application to the district court, Mr. Johnson claimed he spent time

with Mr. Burnham on the day of the alleged sexual assault, and Mr. Burnham’s testimony

                                                  11
“would have accounted for [Mr. Johnson’s] whereabouts during the late afternoon and

early evening.” ROA at 324. “This alibi testimony would have supported [Mr. Johnson’s]

claim of actual innocence” because “if [Mr. Burnham] were present at trial . . . he would

have testified that [Mr. Johnson] was at a different location at the time the alleged event

occurred [i.e., late that night, or early the next morning].” Id. at 325. Burnham’s

testimony, therefore, would support the alibi defense Mr. Johnson raised at trial—that

Mr. Johnson had spent the night and following morning at his fiancée’s house.

       The district court explained that Mr. Johnson could not show prejudice stemming

from counsel’s decision not to present Mr. Burnham as an alibi witness.8 Even assuming

Mr. Burnham’s testimony would have been credible and favorable, it would have been

merely duplicative of Mr. Johnson’s testimony and that of his fiancée, who both testified

that Mr. Johnson had not spent the night in the alleged victim’s house.

       In his application for a COA, Mr. Johnson now claims Mr. Burnham’s testimony

“would neither have corroborated the alibi nor conflicted with it,” because he spent time

with Mr. Burnham in the late afternoon and early evening, but the alleged assault

occurred “in the middle of the night.” Aplt. Br. at 21. Instead, Mr. Johnson claims that


       8
         The district court also observed, contrary to Mr. Johnson’s suggestion, that the
record indicates trial counsel investigated Mr. Burnham as a potential witness. The state
postconviction court noted that Mr. Johnson “initially claimed that another alibi witness,
Joseph Burnham was not contacted, but withdrew that assertion at the Rule 35 hearing,
no doubt because [trial counsel’s] file reflected that Mr. Burnham had spoken with [trial
counsel].” ROA at 364. Although Mr. Johnson now criticizes this conclusion by the state
postconviction court as “factually incorrect,” Aplt. Br. at 20, § 2254 requires federal
habeas courts to presume the correctness of a state court’s factual determinations.
28 U.S.C. § 2254(e)(1). Mr. Johnson has “the burden of rebutting the presumption of
correctness by clear and convincing evidence,” id., which he has not done.
                                                12
Mr. Burnham would have testified “to the events of the day, [Mr. Johnson and his

fiancée’s plans] for the evening, and the things he saw and heard.” Aplt. Br. at 23. He

suggests this testimony would have served to impeach that of the alleged victim and her

mother, who testified at trial that Mr. Johnson had spent the night in their house.

       Mr. Johnson’s revised arguments in his application to this court do not undermine

the district court’s conclusion on Strickland’s prejudice prong. To the extent that

Mr. Burnham’s testimony would corroborate Mr. Johnson’s alibi, his testimony would be

both cumulative, see Hanson v. Sherrod, 797 F.3d 810, 832 (10th Cir. 2015) (“Many of

our cases have refused to find prejudice when the evidence not presented would have

been cumulative of the evidence the jury already heard.”), and of marginal value, since

Mr. Burnham could not testify to Mr. Johnson’s location at the time of the alleged

assault. To the extent that Mr. Burnham would not corroborate that alibi but would testify

to other events of the day in question, Mr. Johnson has not explained how that testimony

would affect the jury’s verdict, or how it would impeach the victim or her mother’s

crucial testimony that Mr. Johnson spent the evening at their home.

       Vague, speculative, and conclusory allegations will not satisfy an applicant’s

burden under Strickland’s prejudice prong. Stafford v. Saffle, 34 F.3d 1557, 1564 (10th

Cir. 1994); see Kidwell v. Martin, 480 F. App’x 929, 934 (10th Cir. 2012) (unpublished)

(“We have repeatedly stated that such conclusory allegations do not satisfy Strickland’s

prejudice element.”). Reasonable jurists could not debate whether such inconsistent and

speculative allegations suffice to show a “reasonable probability” that with

Mr. Burnham’s testimony the jury’s verdict would have been different. Strickland, 466

                                                13
U.S. at 687. Accordingly, they could not debate whether Mr. Johnson has alleged a

sufficiently “substantial” ineffective-assistance-of-trial-counsel claim to justify

application of Martinez, and the district court appropriately applied an anticipatory

procedural bar to this unexhausted claim. See 566 U.S. at 14.

       b. Expert Witness Claim

       Reasonable jurists also could not debate the district court’s application of an

anticipatory procedural bar to Mr. Johnson’s second claim that his trial counsel provided

ineffective assistance by failing to secure an expert witness. The district court concluded

that Mr. Johnson preserved this claim at the postconviction initial-review stage but later

defaulted it on postconviction appeal, at which point Martinez does not apply.

       Martinez establishes a narrow exception to the general rule of Coleman v.

Thompson, 501 U.S. 722, 757 (1991), that ineffective assistance in postconviction

proceedings does not qualify as cause to excuse a procedural default. It treats ineffective

assistance of postconviction counsel as cause “to overcome the default of a single

claim—ineffective assistance of trial counsel—in a single context,” Davila v. Davis, 137

S. Ct. 2058, 2062 (2017), i.e., when, under state law, that claim “must be raised in an

initial-review collateral proceeding.” Martinez, 566 U.S. at 17. The Supreme Court has

declined to expand the Martinez rule to other contexts and reiterated its “highly

circumscribed, equitable” nature. Davila, 137 S. Ct. at 2066. Thus, Martinez can only

excuse procedural defaults that occur on postconviction initial review, not defaults that

occur on postconviction appeal. See Martinez, 566 U.S. at 16 (“The holding in this case

does not concern attorney errors in other kinds of proceedings, including appeals from

                                                 14
initial-review collateral proceedings.”); see also Middlebrooks v. Carpenter, 843 F.3d

1127, 1136 (6th Cir. 2016) (“[T]he Martinez-Trevino exception does not apply to save

procedural defaults that occur in ‘appeals from initial-review collateral proceedings.’”

(quoting Martinez, 566 U.S. at 16)); Brown v. Zupan, 724 F. App’x 657, 660 (10th Cir.

2018) (unpublished) (same).

       As the district court observed, Mr. Johnson raised his claim of trial counsel’s

ineffective assistance for failure to secure an expert witness in his motion for

postconviction relief pursuant to Colo. Crim. P. 35(c). In this motion, Mr. Johnson

claimed that “trial counsel was ineffective for not securing [an] . . . expert witness”

because the state’s expert had “inaccurately reported that there was 6–7” vaginal

penetration and that a standard 6” vaginal speculum was used to determine the depth of

penetration.” State Record at 252. He suggested that a defense expert could have “take[n]

measurements of his genitalia prior to . . . trial to compare with [the] medical report” and

testified about the different sizes of specula used “to accommodate women with vagina[s]

of various sizes.” Id. He further asserted that a defense expert could have testified that the

alleged victim had “a[n] intact hymen . . . disproving her allegations of sexual

intercourse,” and trial counsel’s failure to secure such an expert violated his Sixth

Amendment right. Id. at 252–53. These assertions sufficed to preserve Mr. Johnson’s

second claim of ineffective assistance before the initial-review state postconviction court.

See Bland, 459 F.3d at 1011 (“‘Fair presentation’ means that the petitioner has raised the

‘substance’ of the federal claim in state court.”).



                                                 15
       Mr. Johnson’s assigned postconviction counsel then filed a brief in support of

Mr. Johnson’s 35(c) motion, omitting any discussion of the expert-testimony issue. Nor

did the initial-review state postconviction court address the issue. Nevertheless, a state

court’s failure “to mention a federal claim does not mean the claim was not presented to

it.” Dye v. Hofbauer, 546 U.S. 1, 3 (2005) (per curiam); see Smith v. Digmon, 434 U.S.

332, 333 (1978) (per curiam) (“It is too obvious to merit extended discussion that

whether the exhaustion requirement . . . has been satisfied cannot turn upon whether a

state appellate court chooses to ignore in its opinion a federal constitutional claim

squarely raised in petitioner's brief in the state court . . . .”).

       Mr. Johnson’s postconviction appeal brief, however, did not raise trial counsel’s

failure to secure an expert as grounds for an ineffective assistance claim. Although the

brief noted that Mr. Johnson had initially “faulted” trial counsel in his 35(c) motion for

failing to secure an expert, 9 the brief argued only that trial counsel had been ineffective

for failing to investigate two potential alibi witnesses and failing to secure the presence of

another witness who would have testified to, among other things, a lack of honesty on the

part of the victim’s mother.

       Thus, Mr. Johnson defaulted his second claim of ineffective assistance on

postconviction appeal, not initial review. Martinez does not excuse defaults that occur on


       9
         Mr. Johnson appears to suggest that the state trial court itself “faulted” trial
counsel for not consulting an expert. The record does not support this contention.
Although, as discussed above, Mr. Johnson’s postconviction appeal brief states that
counsel was “faulted for not securing an expert witness to refute the medical testimony,”
it only cites Mr. Johnson’s initial 35(c) motion for this proposition, suggesting that it was
Mr. Johnson, not the trial court, that “faulted” counsel for failing to secure an expert.
                                                     16
postconviction appeal, see Middlebrooks, 843 F.3d at 1136, and therefore reasonable

jurists could not debate whether Mr. Johnson has established cause for his procedural

default, and the district court correctly applied an anticipatory procedural bar to

Mr. Johnson’s second claim of ineffective assistance.

        MOTIONS TO APPOINT COUNSEL, PROCEED IN FORMA PAUPERIS,
                AND SUPPLEMENT THE RECORD ON APPEAL

       In addition to seeking a COA, Mr. Johnson appeals the district court’s refusal to

appoint counsel, and he makes a renewed motion to appoint counsel as well as motions to

supplement the record on appeal and proceed in forma pauperis. We consider each of

these additional issues in turn.

       “[T]here is no constitutional right to counsel beyond the appeal of a criminal

conviction, and . . . generally appointment of counsel in a § 2254 proceeding is left to the

court's discretion.” Swazo v. Wyo. Dep't of Corr. State Penitentiary Warden, 23 F.3d 332,

333 (10th Cir. 1994). The district court denied Mr. Johnson’s request for appointment of

counsel as moot after denying his motion for reconsideration. The district court did not

abuse its discretion in denying this request after concluding based on settled law that Mr.

Johnson had not exhausted his claims and could not establish cause for his procedural

default; appointed counsel could serve no further purpose. We therefore affirm the

district court’s refusal to appoint counsel, and we deny Mr. Johnson’s motion to appoint

counsel on appeal for the same reasons.10 See Rucks v. Boergermann, 57 F.3d 978, 979


       10
          Mr. Johnson complains that the district court failed to “find facts specially and
state separately its conclusions of law” with respect to its ruling on his motion for
appointment of counsel and various other objections and issues, citing Fed. R. Civ. P. 52.
                                                 17
(10th Cir. 1995) (affirming denial of appointment of counsel when review of record

revealed that appellant “has a firm grasp of the fundamental issues in his case and

appears to be capable of presenting his case intelligently and coherently,” “the issues in

[the] case were not particularly complex,” and “even with appointed counsel, [the

appellant] had little likelihood of prevailing on the merits”).

       Mr. Johnson also moves to supplement the record on appeal with a variety of

additional documents, including an objection to the district court’s denial of his motion to

proceed in forma pauperis on appeal. We have reviewed these materials and conclude

they are unnecessary to the resolution of the issues before us. We therefore deny

Mr. Johnson’s request to supplement the record on appeal. See Prost v. Anderson, 636

F.3d 578, 582 (10th Cir. 2011) (denying motion to supplement record because the

“proffered materials are not necessary to the resolution of this appeal”); Leatherwood v.

Allbaugh, 861 F.3d 1034, 1051 (10th Cir. 2017) (“We will not consider material outside

the record that was not before the district court unless it is necessary to truly disclose

what occurred in the district court.” (internal quotation marks and alteration omitted)).

       Finally, Mr. Johnson filed a motion to proceed in forma pauperis on appeal, which

the district court denied. “In order to succeed on his motion, an appellant must show a

financial inability to pay the required filing fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”


Aplt. Br. at 15, 16. But Rule 52 governs bench trials, not habeas proceedings, and the
district court otherwise adequately explained the rulings we affirm here. See Fed. R. Civ.
P. 52 (“In an action tried on the facts without a jury or with an advisory jury, the court
must find the facts specially and state its conclusions of law separately.”).
                                                  18
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Mr. Johnson has not met

this burden; our review of the record reveals no non-frivolous argument in support of his

appeal. Accordingly, we also deny Mr. Johnson’s motion to proceed in forma pauperis on

appeal.

                                        CONCLUSION

      Because Mr. Johnson fails to make a substantial showing of the denial of a

constitutional right, we DENY his request for a COA and DISMISS the appeal. We also

DENY Mr. Johnson’s appeal of the district court’s decision not to appoint counsel, his

renewed motion to appoint counsel on appeal, and his motions to supplement the record

and proceed in forma pauperis.

                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




                                               19
