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

                           FOR THE TENTH CIRCUIT                         April 17, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
TOBY G. CHAVEZ,

             Petitioner-Appellant,

v.                                                         No. 14-2190
                                                (D.C. No. 1:13-CV-00338-JB-SCY)
GERMAN FRANCO; STATE OF NEW                                  (D.N.M.)
MEXICO,

             Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before TYMKOVICH, O’BRIEN, and GORSUCH, Circuit Judges.


      A New Mexico jury convicted Toby Chavez of first degree felony murder and

other crimes after he admitted to shooting and killing an elderly man at a gas station.

The trial court sentenced Mr. Chavez to life plus thirteen and one-half years in

prison. After pursuing direct appeals and several motions for postconviction relief in

the state courts, Mr. Chavez filed this petition for habeas corpus under 28 U.S.C.

§ 2254, claiming ineffective assistance of counsel and various trial court errors. The

district court denied the petition, and Mr. Chavez now seeks a certificate 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       This order is not binding precedent except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
appealability. See 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003).

      We may grant a COA, however, “only if the applicant has made a substantial

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

requires an applicant 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation

marks omitted). If a state court adjudicated a claim on the merits, a federal court

may not grant habeas relief “unless the state-court 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 state court.” Al-Yousif v. Trani,

779 F.3d 1173, 1180 (10th Cir. 2015) (citations omitted) (quoting 28 U.S.C.

§ 2254(d)).

      The district court held that the state courts reasonably rejected Mr. Chavez’s

ineffective assistance of counsel claims, and this conclusion we find ourselves unable

to debate. Even assuming Mr. Chavez’s allegations are true, and even assuming they

suggest constitutionally deficient representation, Mr. Chavez never explains how he

was prejudiced by his attorney’s performance. See Strickland v. Washington,

466 U.S. 668, 687, 694 (1984).


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      Indeed, for each of the claimed errors there are reasons to believe he wasn’t.

Mr. Chavez first argues that his attorney didn’t adequately investigate and impeach a

prosecution witness. But the evidence Mr. Chavez sought to expose — the witness’s

criminal history and a prior inconsistent statement — ultimately made it before the

jury anyway. Next Mr. Chavez argues that his attorney failed to explain the

prosecution’s burden of proof to the jury. But such an explanation was fully

provided by the trial court in its jury instructions. Mr. Chavez suggests that his

attorney should have investigated and presented evidence on his drug addiction and

its effect on his state of mind at the time of the crime. But, as noted by the district

court, presenting this information to the jury may actually have undercut the self-

defense theory on which he relied. Finally, Mr. Chavez claims he wasn’t properly

counseled on his right to testify. From the record, however, it appears that the

account of events he now says he would’ve presented was fully presented to the jury

in other ways. In short, Mr. Chavez hasn’t shown “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. Neither has he carried the added burden of

demonstrating that the state courts’ decision on this score was unreasonable. See

28 U.S.C. § 2254(d)(1).

      Mr. Chavez next asserts three claimed trial errors: denial of a motion to

suppress, bias on the part of the trial judge, and erroneous jury instructions. But as

the district court saw it, the state courts reasonably denied relief on these claims — a


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conclusion that again we find hard to debate. Although Mr. Chavez asserts his

confession should have been suppressed as involuntary, as the district court explained

there is no support for that theory in the record. Mr. Chavez claims to have been

impaired and sleep-deprived, but he exhibited no signs of intoxication, his interview

lasted only twenty-six minutes, and there is no evidence of coercive police activity.

See United States v. Lamy, 521 F.3d 1257, 1261-62 (10th Cir. 2008) (listing factors

relevant to a determination of voluntariness).

      Mr. Chavez claims the trial judge was biased and denied him a fair trial by

repeatedly reprimanding his attorney. But, as the district court and New Mexico

Supreme Court observed, the reprimands occurred outside the presence of the jury

and there is no evidence any alleged bias had any effect on the jury’s verdict. See

United States v. Erickson, 561 F.3d 1150, 1166 (10th Cir. 2009).

      Finally, Mr. Chavez says the trial court’s instructions failed to inform the jury

that a conviction for attempted armed robbery was a prerequisite for a conviction

under the felony murder rule, and failed to instruct the jury on his theory of

provocation, which would have mitigated his culpability. But as the district court

observed, the challenged instructions did not “so infect[] the entire trial that the

resulting conviction violates due process.” Ellis v. Hargett, 302 F.3d 1182, 1186

(10th Cir. 2002) (internal quotation marks omitted). Indeed, the record reflects that

the jury was properly instructed on the felony murder rule and attempted armed

robbery. Likewise, the instructions on voluntary manslaughter and provocation were


                                           -4-
broad enough to capture Mr. Chavez’s theory of provocation. Under these

circumstances, no reasonable jurist could debate the district court’s dismissal of these

claims.1

      The application for a COA is denied and the appeal is dismissed.


                                               ENTERED FOR THE COURT


                                               Neil M. Gorsuch
                                               Circuit Judge




1
       Mr. Chavez raises several other instructional errors for the first time in his
application for a COA. Because they were not presented in his habeas petition in the
district court, we decline to consider them now. See United States v. Viera, 674 F.3d
1214, 1220 (10th Cir. 2012).


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