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

                            FOR THE TENTH CIRCUIT                          December 17, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 FREDERICK BARKER,

       Petitioner - Appellant,

 v.                                                           No. 18-1251
                                                    (D.C. No. 1:15-CV-00595-RPM)
 RICK RAEMISCH, Executive Director,                            (D. Colo.)
 Colorado Dept. of Corrections; TRAVIS
 TRANNI, Warden, Colorado State
 Penitentiary; CYNTHIA COFFMAN,
 Attorney General, State of Colorado,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges.
                  _________________________________

       Frederick Barker, a Colorado state prisoner appearing pro se, seeks a

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

28 U.S.C. § 2254 petition for post-conviction relief. We deny his application for a

COA.




       *
        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and judgment is not binding precedent, except under the doctrines of law of the case,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. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                     I.     Background

      A jury convicted Frederick Barker of two counts of felony murder, one count

of second degree murder, and two counts of aggravated robbery in the District Court

for the City and County of Denver, Colorado. The state court sentenced Barker to

two consecutive terms of life in prison without parole. The Colorado Court of

Appeals (“CCA”) affirmed the convictions on direct appeal.

      Barker then filed a pro se motion for post-conviction relief pursuant to

Colorado Rule of Criminal Procedure (“Rule”) 35(c). The district court denied relief,

and the CCA affirmed.

      With assistance of counsel, Barker filed an Application for a Writ of Habeas

Corpus in the United States District Court for the District of Colorado. There, Barker

claimed violations of, among other things, his Sixth Amendment rights. Specifically,

Barker alleged his trial counsel was ineffective because counsel failed to: (1) retain

an expert to analyze a tape recording; (2) properly raise and preserve Barker’s right

to confront witnesses; and (3) object to the joinder of two cases. The district court

denied Barker’s Application for a Writ of Habeas Corpus. The district court also

declined to issue Barker a COA, concluding that Barker did not make a substantial

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

      Barker, again proceeding pro se, appeals the district court’s denial of a COA.

He claims his Sixth Amendment rights were denied through: (1) ineffective

assistance of trial and appellate counsel, and (2) denial of post-conviction counsel.

Barker specifically alleges that trial counsel failed to advise him of his right to offer

                                            2
relevant evidence regarding the voluntariness of his confession, prevented him from

testifying, failed to investigate evidence that could have corroborated his defense,

and failed to move to dismiss the case or move for sanctions after alleged violations

of his right to a speedy trial. Barker further contends his appellate counsel was

ineffective when counsel failed to appeal the trial court’s refusal to instruct the jury

on an alibi defense.

                                 II.    Standard of Review

      A COA is a jurisdictional prerequisite to our review of a habeas application.

28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Under

the Antiterrorism and Effective Death Penalty Act (“AEDPA”), “[w]e will issue a

COA ‘only if the applicant has made a substantial showing of the denial of a

constitutional right.’” Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009)

(quoting 28 U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show

‘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.’” United States v.

Taylor, 454 F.3d 1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). Our “inquiry does not require [a] full consideration of the factual

or legal bases adduced in support of the claims,” but rather “an overview of the

claims” and “a general assessment of their merits.” Miller-El, 537 U.S. at 336.

      “Under AEDPA, we may grant an application for a writ of habeas corpus on

behalf of an individual in state custody on a claim that was adjudicated on the merits

                                            3
in the state court only if the state court’s 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 light of the evidence presented in the State court proceeding.’”

Gonzales v. Hartley, 397 F. App’x 483, 486 (10th Cir. 2010) (quoting 28 U.S.C. §

2254(d)(1)(2)).

                                         III.       Analysis

       A. Claims Barker failed to raise in his § 2254 application are forfeited.

       In his application to this Court for a COA, Barker abandons certain arguments

made below and advances new theories in an attempt to secure a COA. Specifically,

Barker attempts to raise the following ineffective assistance of counsel arguments for

the first time on appeal: (1) that trial counsel failed to advise him of his right to offer

relevant evidence regarding the voluntariness of his confession, prevented him from

testifying, and failed to investigate evidence that could have corroborated his

defense, and (2) that appellate counsel failed to appeal the trial court’s refusal to

instruct the jury on an alibi defense.

       Claims not raised in the initial § 2254 application are considered forfeited.

See United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012). And Barker does

not request on appeal that we review these claims for plain error. Thus, we deny his

request for a COA on these forfeited claims. Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application



                                                4
on appeal—surely marks the end of the road for an argument for reversal not first

presented to the district court.”).

       B. Barker’s remaining claims do not support the grant of a COA.

       Barker has two remaining claims that he made in his original § 2254

application: an ineffective assistance of counsel claim based on failure to object to an

alleged speedy trial violation and a post-conviction denial of counsel claim. 1 For the

reasons that follow, neither claim justifies the grant of a COA in this case.

       1. Because Barker did not raise his speedy trial violation claim in his Rule
          35(c) motion, he cannot raise it for the first time on appeal to this court.

       Barker argues his trial counsel was constitutionally ineffective for failing to

object to an alleged speedy trial violation. This claim was raised on appeal of the

denial of the Rule 35(c) motion, but the CCA, citing People v. Goldman, 923 P.2d

374, 375 (Colo. App. 1996), refused to address it because Barker did not properly

raise it in his Rule 35(c) motion.

       A prisoner who fails to satisfy state procedural requirements forfeits his right

to present his claim in federal habeas. Murray v. Carrier, 477 U.S. 478, 485–92,

(1986). The procedural default doctrine applies regardless of whether the default

occurred at trial, on appeal, or on state collateral review. Edwards v. Carpenter, 529

U.S. 446, 451 (2000). Procedural default is an independent and adequate state

ground for denying habeas relief. Hain v. Gibson, 287 F.3d 1224, 1230 (10th Cir.




       The district court did not address either of Barker’s remaining claims,
       1

although he argued these claims in his Application for a Writ of Habeas Corpus.
                                            5
2002). It prevents us from reviewing Barker’s defaulted claim unless he can

demonstrate both “cause for the default and actual prejudice as a result of the alleged

violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

       A defendant may show cause for setting aside a procedural default in his first

petition for post-conviction relief with respect to an ineffective assistance of trial

counsel claim raised in that petition when the defendant shows: (1) either (a) “under

state law, claims of ineffective assistance of counsel must be raised in an initial-

review collateral proceeding,” Martinez v. Ryan, 566 U.S. 1, 17 (2012), or (b) the

“state procedural framework, by reason of its design and operation, makes it highly

unlikely in a typical case that a defendant will have a meaningful opportunity to raise

a claim of ineffective assistance of trial counsel on direct appeal,” Trevino v. Thaler,

569 U.S. 413, 429 (2013)); 2 (2) either (a) “the state courts did not appoint counsel in

the initial-review collateral proceeding for a claim of ineffective assistance at trial,”

Martinez, 566 U.S. at 14, or (b) “appointed counsel in the initial-review collateral

proceeding, where the claim should have been raised, was ineffective under the

standards of Strickland v. Washington, 466 U.S. 668 (1984),” id.; and (3) “the

underlying ineffective-assistance-of-counsel claim is a substantial one, which is to

say that . . . the claim has some merit.” Id.



       2
         “Colorado courts have expressed a preference for defendants to raise
ineffective assistance of trial counsel claims in collateral review proceedings, [but]
they do not require defendants to do so.” Linzy v. Faulk, 602 F. App’x 701, 702 n.3
(10th Cir. 2015) (internal quotation marks omitted). Thus, in these circumstances
defendants out of Colorado fall within the rule articulated in Trevino. Id.
                                            6
       Assuming for the sake of this appeal that Barker can satisfy the first two

prongs, he cannot satisfy the third prong.

       To demonstrate ineffective assistance of counsel a petitioner must establish

both (1) that his counsel’s performance fell below an objective standard of

reasonableness, and (2) that there is a reasonable probability that, but for counsel’s

unreasonable errors, the outcome of his appeal would have been different.

Strickland, 466 U.S. at 687.

       Barker cannot establish the third prong—that his claim has some merit—

because he fails to meet the first prong of Strickland. Barker contends his counsel

performed deficiently because counsel requested a continuance instead of objecting

and moving for a new trial after learning the prosecution did not timely disclose

certain evidence. Without more, his bare assertion does not satisfy Strickland’s first

prong. We have held that failure to make a speedy trial objection and instead move

for a continuance does not make counsel’s performance fall “below an objective

standard of reasonableness” as measured by “prevailing professional norms.” United

States v. Rushin, 642 F.3d 1299, 1309 (10th Cir. 2011). In developing trial strategy,

“counsel is entitled to balance limited resources in accord with effective trial tactics

and strategies, or, in other words, to critically undertake a cost/benefit analysis of any

proposed course of action.” Id. at 1308 (internal quotations omitted) (emphasis in

original).

       When counsel focuses on some issues to the exclusion of others, there is
       a strong presumption that he did so for tactical reasons rather than
       through sheer neglect . . . . That presumption has particular force where

                                             7
      [as here] a petitioner bases his ineffective-assistance claim solely on the
      trial record, creating a situation in which a court may have no way of
      knowing whether a seemingly unusual or misguided action by counsel
      had a sound strategic motive.

Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam) (internal quotations

omitted).

      Barker cannot show that his counsel’s request for a continuance fell below an

objective standard of reasonableness. Therefore, he cannot establish that his claim

has some merit and he cannot show cause. Thus, he cannot overcome the procedural

default and is not entitled to a COA with respect to this issue.

      2. Barker’s claim pursuant to Rule 35(c) concerns a question of state law that
         is unreviewable in this application and of federal law that is not clearly
         established.

      Barker also argues that the Sixth Amendment and Colorado statute entitled

him to appointment of post-conviction counsel when he filed petitions for relief

pursuant to Rule 35(c). The CCA held that this argument was improperly raised and

denied it on the merits.

      Under AEDPA “a COA may issue only when the applicant ‘has made a

substantial showing of the denial of a constitutional right.’” Taylor, 454 F.3d at 1078

(quoting 28 U.S.C. § 2253(c)(2) (emphasis added)). As discussed above, Barker’s

state law claim does not give rise to the issuance of a COA.

      Turning to Barker’s constitutional claim, generally “[t]here is no constitutional

right to an attorney in state post-conviction proceedings.” Coleman, 501 U.S. at 752.

In Martinez, the Supreme Court left open the question of whether a constitutional


                                            8
right to counsel exists when a defendant filed a petition for post-conviction relief

asserting a claim for ineffective assistance of trial counsel in a state where a

defendant may only bring an ineffective assistance of counsel claim in such a

petition. Martinez, 566 U.S. at 9 (“This is not the case, however, to resolve whether

that exception [for ineffective assistance of counsel claims that may only be raised in

a petition for post-conviction relief] exists as a constitutional matter.”). The Supreme

Court has not revisited that issue since Martinez. Under the circumstances, no

reasonable jurist could debate whether the CCA’s determination that Barker had no

constitutional right to counsel was contrary to clearly established Federal law, as

determined by the Supreme Court of the United States. Accordingly, Barker is also

not entitled to a COA with respect to this issue.

                                     IV.    Conclusion

For the foregoing reasons, Barker’s application for a COA is DENIED. 3


                                             Entered for the Court


                                             Joel M. Carson III
                                             Circuit Judge




      3
        Because we deny the application for a COA, we additionally deny Barker’s
request to proceed in forma pauperis.
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