                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                    October 18, 2013
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 YOOBANG KIM,

              Petitioner - Appellant,

 v.                                                     No. 13-1293
                                              (D.C. No. 1:12-CV-01419-CMA)
 JAMES FALK, Warden of the Sterling                      (D. Colo.)
 Correctional Facility; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

              Respondents - Appellees.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.



      Petitioner and appellant, Yoobang Kim, a state prisoner proceeding pro se,

seeks a certificate of appealability (“COA”) to enable him to appeal the denial of

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. For the following

reasons, we deny Mr. Kim a COA and dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                 BACKGROUND

      Mr. Kim was convicted by a jury of first degree assault, second degree

assault, child abuse resulting in serious bodily injury, and two counts of

committing a crime of violence. He was sentenced to a total of seventy years. 1

The Colorado Court of Appeals affirmed the judgment of conviction on direct

appeal, People v. Kim, No. 04CA2508 (Colo. App. June 25, 2009) (unpublished),

and the Colorado Supreme Court denied certiorari. Mr. Kim then filed a motion

for sentence reconsideration under Colo. R. Crim. P. 35(b), which was denied.

He subsequently filed a motion for post-conviction relief under Colo. R. Crim. P.

35(c), which was denied as successive. The Colorado Court of Appeals affirmed.




      1
        As stated in the unpublished state decision affirming his conviction on
direct appeal, the facts surrounding Mr. Kim’s conviction are as follows:

             In July 2002, defendant attacked his girlfriend (the victim)
      with a golf club and metal pipe after returning from drinks at a local
      bar. The victim’s daughter woke up when she heard them arguing,
      attempted to call the police, and was struck by defendant. The
      victim’s son then woke up, started screaming, and was likewise
      struck in the head by defendant. After the victim was beaten
      unconscious, defendant fled the apartment. The victim and her
      children were taken to the hospital, where the victim remained for
      two weeks due to severe head and facial injuries, including multiple
      fractures and the loss of an eye. When defendant was arrested the
      next day, he admitted striking the victim and her children and told
      police the victim’s flirtatious behavior at the bar had enraged him.

Order at 2; R. Vol. 1 at 233 (quoting People v. Kim, No. 04CA2508, slip op. at 1
(Colo. App. June 25, 2009) (unpublished)).

                                         -2-
People v. Kim, No. 11CA1972 (Colo. App. Feb. 16, 2012) (unpublished).

Mr. Kim did not seek certiorari review.

      Mr. Kim filed the instant petition on May 29, 2012, asserting three claims,

all relating to his right to counsel. His first claim is that he was denied substitute

counsel, in violation of his Sixth Amendment rights. In his second claim he says

he did not knowingly, voluntarily and intelligently waive his right to counsel, in

violation of his Sixth and Fourteenth Amendment rights. Mr. Kim’s third claim

was that he was denied due process when he was not allowed to revoke his waiver

of counsel.

      The district court quoted the lengthy description of the factual background

to Mr. Kim’s three claims, as set forth in the Colorado Court of Appeals’

decision. We excerpt parts of it, as follows:

             Initially, the public defender represented defendant, but later
      alternate defense counsel (“ADC”) represented him after the public
      defender withdrew due to a conflict not at issue here. In March
      2004, defendant filed several pro se motions alleging ADC did not
      know the Korean language or customs; did not spend a reasonable
      amount of time on his case; was lazy; . . . and voiced concerns
      regarding the likelihood of success at trial. Consequently, defendant
      requested removal of ADC and new representation.

             In April 2004, defendant reiterated his complaints at a hearing
      before the trial court denied his motion. The trial court stated it
      would not allow ADC to withdraw . . . explained ADC was conflict-
      free and competent . . . . The trial court then explicitly asked
      defendant if he wanted to have any attorney during the trial, to which
      defendant replied, through his interpreter, that he was “going to
      represent himself.”


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             After defendant stated his desire to represent himself, the court
      told him [of his right to represent himself but informed him that there
      were many pitfalls and dangers of doing so] that the process was far
      from simple and the chance for mistakes was great, that he faced
      forty-eight years incarceration from one count alone and upwards of
      one hundred years if convicted on all counts . . . .

             At the hearing a week later, which occurred less than three
      days before trial was scheduled to begin, defendant again stated that
      he wished to represent himself . . . . The trial court then reconfirmed
      defendant wanted to allow ADC to withdraw as his attorney, and
      defendant unequivocally stated he did. The court asked if he would
      like advisory counsel, in which capacity the prosecutor suggested
      ADC could act, to which defendant replied, “I know it’s very good
      for me to have advisory attorney with me but I hope I can get another
      attorney.” The trial court then . . . continued trial until August 2004.

               In May 2004, when defendant was proceeding pro se, he again
      reiterated to the court ADC’s shortcomings, nearly all of which
      regarded trial strategy, and asked the court what reasons would be
      sufficient to have ADC removed for cause. . . . In August 2004,
      shortly before trial, defendant . . . again reiterated ADC’s deficiencies
      . . . requested another continuance, which the trial court denied.

Order at 3-4; R. Vol 1 at 234-35. As indicated, Mr. Kim ultimately represented

himself at trial, with ADC assisting him, and he was convicted by the jury of the

counts stated above.

      The district court denied Mr. Kim’s habeas petition, concluding that the

Colorado Court of Appeals’ decision was not contrary to or an unreasonable

application of Supreme Court precedent under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). The court also denied Mr. Kim’s request for

COA. This request for a COA followed.




                                         -4-
                                  DISCUSSION

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Clark v.

Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006). 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 requires “a demonstration that . . . includes

showing that reasonable jurists could debate whether (or, for that matter, agree

that) the [application ] 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 evaluating whether Mr. Kim has carried his burden, we undertake “a

preliminary, though not definitive, consideration of the [legal] framework”

applicable to each of his claims. Miller-El, 537 U.S. at 338.

      Furthermore, where, as in this case, the state court addressed the merits of a

petitioner’s claims, AEDPA provides the applicable standard of review. Its

“deferential treatment of state court decisions must be incorporated into our

consideration of a . . . petitioner’s request for a COA.” Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004). Under AEDPA, habeas relief is available only if

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

                                         -5-
light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1). “This highly deferential standard for evaluating state-court rulings

demands that state-court decisions be given the benefit of the doubt.” Hooks v.

Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (further quotations omitted); see

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). Additionally, we presume

under AEDPA that the state court’s determination of a factual issue is correct; the

applicant or petitioner has the burden of rebutting this presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1); Hooks, 689 F.3d at 1163.

      The district court’s 20-page decision applied this deferential standard to the

Colorado Court of Appeals’ decision. The district court’s decision was detailed

and thorough. We cannot improve on it, and we therefore deny Mr. Kim a COA

for substantially the reasons stated in the district court’s decision.



                                   CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter. We

DENY Mr. Kim’s motion to proceed in forma pauperis in this appeal.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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