                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            SEP 13 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    JOHNNY J. QUINTANA,

                Petitioner - Appellant,

    v.                                                   No. 01-1518
                                                     (D.C. No. 97-Z-1975)
    GENE ATHERTON; ATTORNEY                             (D. Colorado)
    GENERAL OF THE STATE OF
    COLORADO,

                Respondents - Appellees.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
        Petitioner Johnny J. Quintana, a state inmate, seeks a certificate of

appealability (“COA”) that would allow him to appeal from the district court’s

order denying relief on his habeas petition brought under 28 U.S.C. § 2254. We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). Mr. Quintana contends

that he was denied effective assistance of counsel at his trial. But because he has

failed to make a “substantial showing of the denial of a constitutional right,” as

required by 28 U.S.C. § 2253(c)(2), we deny his application for COA and dismiss

the appeal.


                              I. Facts and proceedings

        Mr. Quintana was convicted of aggravated robbery, theft, and crime of

violence for having car-jacked at gunpoint a Jeep Wagoneer in September 1989.

Mr. Quintana is Hispanic, 5’9” tall, and has dark brown hair. At the time of the

car-jacking he was twenty-eight years old and weighed about 180 pounds. The

victim described the car-jacker as being white or Hispanic, around 5’7”-5’9”,

thirty to forty years old, not clean shaven, and having a dark complexion, a

medium to stocky build, and short-to-medium-length, dark brown, wavy or curly

hair. She stated that he wore dark pants and used a black handgun with his right

hand.

        Two other crimes are also of interest. Forty-five minutes after the car-

jacking, a Safeway grocery store was robbed by a man driving the car-jacked

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Jeep. Also, a month later Mr. Quintana and an accomplice were videotaped while

robbing a Radio Shack.

      Witnesses to the Safeway robbery variously described the robber as being

twenty-eight to thirty-two years old, Hispanic, around 5’8”-6’ tall, stocky, and

having a dark complexion and black or dark brown, wavy or curly hair. Some

witnesses recalled the robber sporting a thin, black mustache and being unshaven

or having a half-grown beard; others did not. One witness stated that he “pulled

[his] gun with [his] right hand.” Only one witness stated that she got a “good

look” at the robber; she described him as Hispanic, about 5’9” to 6’ tall, “very

dark complected,” with no facial hair, having dark curly hair, and wearing dark

clothing and carrying a black gun. She was not sure whether he had a mustache.

      Another Safeway witness, Mr. Barnes, saw the robber only for a few

seconds from fifteen feet away, and did not get a good look at him. Immediately

after the robbery he could describe the robber only as being around 5’9”,

Hispanic, stocky, and wearing sunglasses, blue jeans, and a tee shirt.

      Six months after the Safeway robbery, Mr. Quintana was placed in a

line-up, but none of the witnesses to the Safeway robbery positively identified

him as the robber. Mr. Barnes did not observe the line-up.

      A few days before Mr. Quintana’s trial for car-jacking, the prosecutor

sought, over objection, to use the Safeway robbery and Mr. Barnes’ testimony as


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evidence that Mr. Quintana resembled the Safeway robber and thus was also the

person who car-jacked the Jeep. The court ruled that the prosecution could not

introduce such evidence because the crimes were not similar. But the court also

ruled that Mr. Quintana could introduce the evidence defensively if he so desired.

Defense counsel did not introduce any evidence concerning the Safeway robbery,

and Mr. Quintana was convicted.

       After an unsuccessful state post-conviction proceeding in which the court

denied a request for an evidentiary hearing, Mr. Quintana applied for federal

habeas relief. The federal evidentiary hearing on Mr. Quintana’s

ineffective-assistance-of-counsel claim was held ten years after his conviction.

At the hearing, his counsel at trial explained that before trial he had reviewed the

police and investigation reports from the Safeway robbery and read the witness

statements. Since no one had picked Mr. Quintana as the Safeway robber, he

considered whether to present evidence of a “reverse similar” crime. Two closely

connected criminal acts are said to be “reverse similar” if a defendant can present

evidence tending to show he was not involved in one of the crimes, with the hope

of leading the jury to infer that he also was not involved in the other crime.   See

People v. Bueno , 626 P.2d 1167, 1169-70 (Colo. Ct. App. 1981) (noting that when

a defendant offers such evidence, he assumes the risk of the prejudice it may

engender in return for whatever exculpatory value it may have).


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      Counsel testified that one reason he chose not to present evidence regarding

the Safeway robbery was that it could open the door for the prosecution to show

that Mr. Quintana worked with a partner (who could have been the Safeway

culprit) by presenting evidence of the Radio Shack robbery (in which he had a

partner) only one month after the Safeway robbery. Counsel was also concerned

that the Safeway witnesses could change their minds in court about being able to

identify Mr. Quintana as the robber, and such an identification could expose Mr.

Quintana to yet another prosecution. Further, because Mr. Barnes had never been

shown a photo array or line-up, counsel believed there was a risk that Mr. Barnes

might identify Mr. Quintana in court upon seeing him for the first time in person.

      Mr. Quintana raises a single issue in his brief supporting his application for

COA: whether his trial counsel’s assistance was constitutionally ineffective due

to his failure to call the Safeway witnesses. As a related matter, Mr. Quintana

argues that his counsel’s strategy was unreasonable because counsel never spoke

with Mr. Barnes before deciding not to call the Safeway witnesses. (In his

docketing statement Mr. Quintana also raised the issue of whether he is entitled to

habeas relief because the prosecution elicited testimony suggesting Mr. Quintana

had committed other bad acts. That issue was not briefed and is deemed waived.

See Pino v. Higgs, 75 F.3d 1461, 1463 (10th Cir. 1996).)




                                         -5-
                                    II. Discussion

      Mr. Quintana may make a “substantial showing of the denial of a

constitutional right” by demonstrating that the ineffective-assistance-of-counsel

issue raised is debatable among jurists, or that the question presented deserves

further proceedings.   See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).

      In a thorough, sixty-six page report adopted by the district court, the

magistrate judge carefully reviewed the state record as well as the testimony

garnered in the federal evidentiary hearing. Then, applying the controlling rule of

law enunciated in Strickland v. Washington , 466 U.S. 668 (1984), and in several

Tenth Circuit cases interpreting and applying    Strickland, the magistrate judge

concluded that Mr. Quintana had not established that his counsel was ineffective.

In light of the significant risk that calling the Safeway witnesses could backfire,

or lead to the admission of evidence of the Radio Shack robbery, the magistrate

judge concluded that counsel’s decision not to call the Safeway witnesses fell

within the range of reasonable representation.

      The magistrate judge further concluded that any error by defense counsel in

not offering the testimony of the Safeway witnesses made no difference because

the totality of the evidence was so strong that there was not a reasonable

probability that the jury would have had a reasonable doubt regarding

Mr. Quintana’s guilt, even if counsel had introduced that testimony.


                                           -6-
       Mr. Quintana does not challenge the district court’s factual findings or its

summary of witness testimony other than to argue that the district court

fundamentally erred by considering the Safeway witness testimony developed at

the federal evidentiary hearing in reaching its finding that most of the Safeway

witnesses did not get a good look at the robber. We agree that a court must judge

the reasonableness of counsel’s trial strategy as of the time of the conduct.   See

Strickland , 466 U.S. at 690. But the record shows that at the federal evidentiary

hearing the Safeway witnesses mostly repeated their statements made in

1989-1991 during the police and district attorney investigations, and counsel had

reviewed those statements before making his tactical decision. The district court

did not prejudice Mr. Quintana by citing the federal hearing record transcript

instead of the reports and prior statements.

       In response to the court’s conclusion that it was tactically reasonable to

attempt to keep out evidence of other bad acts, including the Safeway and Radio

Shack robberies, Mr. Quintana contends there was no basis for believing either

that more than one person was involved in the car-jacking and Safeway robberies

or that the car-jacker may have turned the Jeep over to a partner before

commission of the Safeway robbery. Thus, he argues, presenting the testimony of

the Safeway witnesses would not have opened the door to evidence of other bad

acts. Mr. Quintana also argues that the risk of the Safeway witnesses identifying


                                             -7-
him in court was insignificant. The magistrate judge’s report, however, sets forth

why a reasonable defense attorney could weigh the risks rather differently and

decide that it was too risky to get into the Safeway robbery at trial. Indeed, the

prosecutor had sought to offer evidence of that robbery, presumably believing that

it strengthened the case against Mr. Quintana. In particular, the descriptions of

the Safeway robber were very similar in many respects to the car-jacking victim’s

description. Mr. Quintana concedes as much when he argues that because “the

descriptions in the [car-jacking and Safeway] robberies were so similar, . . . [it]

cut against the notion that two different people were involved.” Br. at 48.

       Although the district court did not specifically address Mr. Quintana’s

claim that it was objectively unreasonable for counsel to fail to interview

Mr. Barnes before making the decision not to introduce the testimony of the other

Safeway witnesses, we conclude that such an interview was not necessary since

(1) counsel familiarized himself with Mr. Barnes’ testimony from the police and

investigative reports and (2) counsel determined that admission of evidence of

other bad acts would be prejudicial and it would be risky to allow Mr. Barnes to

see Mr. Quintana in person in court.

       In short, Mr. Quintana’s argument is exactly the kind of second-guessing of

reasonable trial strategy expressly forbidden under   Strickland . See 466 U.S. at

689. Upon careful review of Mr. Quintana’s arguments and the relevant record,


                                            -8-
we conclude that the ineffective-assistance-of-counsel issue is not debatable

among jurists, that we would not resolve the issues differently, and that the

question presented does not deserve further proceedings. We deny a COA and

dismiss the appeal.



                                                    Entered for the Court



                                                    Harris L Hartz
                                                    Circuit Judge




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