                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 22 2004
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 DONNIE E. RUSSELL,

              Petitioner - Appellant,

       v.                                                No. 04-1144
                                                (D. Ct. No. 02-WM-529 (BNB))
 GARY WATKINS; ATTORNEY                                    (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

              Respondents - Appellees.


                                        ORDER


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      Petitioner-Appellant Donnie E. Russell was convicted in state court of

attempted murder, sexual assault, kidnapping, robbery, burglary, arson, and

commission of a crime of violence. Mr. Russell filed a 28 U.S.C. § 2254 petition

(“habeas petition”) in the District Court, which was denied. The District Court

also denied Mr. Russell’s request for a certificate of appealability (“COA”) in its

order dated April 22, 2004. He filed a renewed application for a COA with this

Court pursuant to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1)–(2). After

examining the record in this case, Mr. Russell’s motion is DENIED.

      A COA can only issue “if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this

standard, a petitioner must demonstrate “that jurists of reason could disagree with

the district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed

further.” Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

      In the District Court and on appeal, Mr. Russell alleges four constitutional

violations. He claims: (1) his Fourteenth Amendment right to due process was

violated by the state’s bad faith destruction or suppression of evidence relating to

latent finger prints, palm prints, a hammer, and a fifteen-year-old witness; (2) his

Fourth and Fifth Amendment rights were violated when the trial court denied his

motion to suppress statements made to the arresting officer and to the Oklahoma

City police; (3) his Sixth Amendment right to effective assistance of counsel was

violated when his attorney failed to present adequately Mr. Russell’s theory of the

case, to investigate an alibi defense, and to present a closing argument to the

jury; 1 and (4) his Sixth Amendment right to effective assistance of counsel was

violated on direct appeal and on post-conviction review.

      The Magistrate Judge found that the state appellate court’s determination of

claims one and two were not contrary to, or an unreasonable application of,


      1
        Mr. Russell separated these issues into two different claims. Since he, as
well as the Magistrate and District Court, treated them as overlapping, we treat
the claims as one claim for purposes of this appeal.

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federal law; nor was it an unreasonable determination of the facts in light of the

evidence presented at trial. He found that some parts of claim three were

procedurally barred and that Mr. Russell failed to show cause and prejudice or a

fundamental miscarriage of justice. With respect to the other parts of claim three,

the Magistrate Judge found that the state appellate court’s determination of the

claim was not contrary to, or an unreasonable application of, federal law; nor was

it an unreasonable determination of the facts in light of the evidence presented at

trial. The Magistrate Judge found that parts of claim four were procedurally

barred and that Mr. Russell failed to show cause and prejudice or fundamental

miscarriage of justice, and that other parts of claim four failed to present a federal

claim. Upon de novo review, the District Court accepted the Magistrate Judge’s

report and recommendations and denied Mr. Russell’s request for a COA. Mr.

Russell then requested that this Court issue a COA. We deny this request as to

each of Mr. Russell’s four claims because no reasonable jurist could disagree with

the District Court’s resolution. See id. at 327.

      With respect to Mr. Russell’s due process claim, we reach the same result

as the District Court but with slightly different reasoning. A state violates a

defendant’s due process rights when it fails to disclose evidence that is material

to the defendant’s guilt. Brady v. Maryland, 373 U.S. 83, 87 (1963). Evidence is

considered material to the defendant’s guilt when it “possess[es] an exculpatory


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value that was apparent before the evidence was destroyed and [is] of such a

nature that the defendant would be unable to obtain comparable evidence by other

reasonably available means.” California v. Trombetta, 467 U.S. 479, 489 (1984)

(citations omitted). If the evidence does not possess apparent exculpatory value

before its destruction, however, it may be considered only “potentially useful”

evidence; and in that case, due process will not be implicated unless the defendant

shows that the police acted in bad faith in failing to preserve it. Arizona v.

Youngblood, 488 U.S. 51, 58 (1988).

      Mr. Russell alleges that the evidence relating to latent finger prints, palm

prints, and a hammer was material to his guilt and should have been presented to

the state court. This evidence, however, does not possess the exculpatory value

required by Brady. Instead, the evidence is more properly categorized as

“potentially useful.” See id. at 57 (“potentially useful evidence” is evidence “of

which no more can be said than that it could have been subjected to tests, the

result of which might have exonerated the defendant”). Because the exculpatory

value of this evidence was not apparent before it was destroyed, establishing a

due process claim requires showing bad faith on the part of the police in their

failure to preserve such evidence. Id. at 58. Mr. Russell, however, does not

allege any instances of bad faith with respect to the police’s failure to collect

fingerprints or palm prints at the crime scene or from instrumentalities of the


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crime or in its failure to preserve the hammer for evidence. Therefore, the police

did not violate Mr. Russell’s due process rights in failing to preserve that

evidence.

         Mr. Russell also alleges that a fifteen-year-old witness’s statement was

material and should not have been suppressed. For the suppression of this

statement to create a due process violation, the statement must be both

exculpatory and the evidence not obtainable by other reasonable means. Id. at 57.

We need not determine whether the statement was exculpatory because the state

trial court made a finding of fact that the witness and information were available

to the defendant. We presume the correctness of the state court’s finding of fact

unless Mr. Russell rebuts this presumption by clear and convincing evidence,

which he fails to do. See 28 U.S.C. § 2254(e)(1). Mr. Russell, therefore, fails to

show that the statement meets the constitutional level of materiality mandated by

Brady; as such, its suppression did not violate his due process rights.

         With respect to Mr. Russell’s three remaining claims, we deny a COA for

substantially the reasons given by both the District Court and the Magistrate

Judge.

         Mr. Russell also argues that the District Court abused its discretion by

failing to grant his motion for partial summary judgment, to grant him an

evidentiary hearing, to rule on his motion for discovery and expansion of the


                                           -5-
record, and to rule on his motion for appointment of counsel. We review the

District Court’s order and the Magistrate Judge’s recommendations, which were

adopted by the District Court, and find no abuse of discretion in the District

Court’s refusal to grant Mr. Russell’s motions for summary judgment, an

evidentiary hearing, expansion of the record or discovery. Finally, we grant Mr.

Russell’s motion to proceed in forma pauperis on appeal and deny his motion for

appointment of counsel.



                                       ENTERED FOR THE COURT,


                                       Deanell Reece Tacha
                                       Circuit Judge




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