                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 21, 2013
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 TRAVIS RASHAD BARNES,

          Petitioner-Appellant,
 v.
                                                        No. 12-1371
 WARDEN JOHN DAVIS, Warden;                    (D.C. No. 1:11-CV-02760-REB)
 THE ATTORNEY GENERAL OF                                  (D. Colo.)
 THE STATE OF COLORADO,

          Respondents-Appellees.


                        ORDER DENYING CERTIFICATE
                            OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Petitioner-Appellant Travis Rashad Barnes, a prisoner in Colorado state

custody, proceeding pro se, 1 seeks a certificate of appealability (“COA”) to

challenge the district court’s denial of his application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Mr. Barnes also seeks leave to proceed in forma

pauperis. Having thoroughly reviewed the relevant law and the record, we deny

      *
              This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Barnes is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).
Mr. Barnes’s application for a COA, deny his request to proceed in forma

pauperis, and dismiss this matter.

                                          I

       Mr. Barnes was convicted by a jury in Denver County District Court of two

counts of first-degree murder. He was sentenced to two consecutive life terms in

prison without parole. The Colorado Court of Appeals affirmed the judgment

against Mr. Barnes on direct appeal. The Colorado Supreme Court denied

certiorari.

       Subsequently, Mr. Barnes filed a post-conviction motion in state trial court

pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, collaterally

attacking the judgment against him. The trial court denied the motion, the

Colorado Court of Appeals affirmed this denial, and the Colorado Supreme Court

denied certiorari.

       Mr. Barnes then filed a pro se Application for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254. In his application, Mr. Barnes asserted three

claims: (1) the trial court violated his Sixth Amendment confrontation rights by

allowing the prosecution to present hearsay evidence without calling the out-of-

court declarant as a witness; (2) trial counsel was ineffective for failing to object

and renew his motion for a mistrial after the prosecution rested without calling

the out-of-court declarant as a witness; and (3) direct appeal counsel was

ineffective for failing to properly raise the Confrontation Clause claim on direct

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appeal.

      Each claim arises from the direct examination of Mr. Barnes’s girlfriend at

trial. Specifically, the prosecutor asked the girlfriend whether she recalled telling

her friend that she was afraid that her boyfriend, Mr. Barnes, would break in

through her window. See R. at 443–44 (Order on Appl. for Writ of Habeas

Corpus, dated Sept. 6, 2012) (quoting the relevant colloquy between the

prosecutor and Mr. Barnes’s girlfriend). Mr. Barnes’s trial counsel objected and

moved for mistrial—notably, just once—arguing that the prosecutor was trying to

introduce hearsay without having the friend testify; 2 the prosecutor responded that

the questions were necessary to lay the foundation for impeaching the girlfriend’s


      2
              In considering the viability of a Confrontation Clause claim, we note
some lack of clarity as to whether a hearsay statement of Mr. Barnes’s girlfriend
was actually admitted into evidence, although it appears that only the prosecutor
injected the statement in his examination of the girlfriend. Compare R. at 443
(“Q: Specifically, . . . do you recall telling [the friend], . . . , that night, that you
were afraid of your boyfriend coming in the window?” (alterations in original)),
with id. at 111–12 (Opening Br. of Def.-Aplt., filed Nov. 29, 2011) (referring to
“improper prosecutorial questioning that elicited inadmissible [hearsay]
evidence”). However, as noted infra, the Colorado Court of Appeals resolved the
Confrontation Clause question on the basis of whether the statement was
testimonial. Consequently, we also direct our focus to that question and need not
definitively opine on whether the statement was actually hearsay and admitted
into evidence. See id. at 448 (“[T]he Colorado Court of Appeals concluded that
the prosecutor’s reference to the girlfriend’s statement did not violate the
Confrontation Clause because it was not testimonial.” (citation omitted) (internal
quotation marks omitted)). Cf. Littlejohn v. Trammell, 704 F.3d 817, 838 (10th
Cir. 2013) (“Despite his oblique references to the Confrontation Clause, Mr.
Littlejohn does not actually claim that such a violation took place—only that the
prosecutor’s ‘comments were akin to a violation of the Confrontation Clause.’”
(quoting Aplt. Littlejohn’s Opening Br. at 51)).

                                          -3-
testimony with the friend’s testimony, and the trial court overruled trial counsel’s

objection.

      The State contended, and the district court agreed, that Mr. Barnes’s first

claim for relief was procedurally defaulted in the state courts—viz., counsel on

direct appeal did not raise the Confrontation Clause claim in his opening brief and

instead raised the claim for the first time in the reply brief. 3 Nonetheless, because

“[a] habeas petitioner may establish cause for his procedural default by showing

that he received ineffective assistance of counsel in violation of the Sixth

Amendment,” Banks v. Reynolds, 54 F.3d 1508, 1514 (10th Cir. 1995), and

because Mr. Barnes asserted in his third claim that his appellate counsel was

ineffective, the district court determined that Mr. Barnes may be able to

demonstrate cause for his procedural default of his first claim based on his

allegations in his third claim.

      However, the district court concluded, consistent with the Colorado Court

of Appeals’s holding, that Mr. Barnes’s third claim failed on the merits—the

admission of the alleged hearsay statement did not raise Confrontation Clause



      3
              “In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991).

                                         -4-
concerns as it was non-testimonial, 4 and therefore, appellate counsel’s failure to

raise the issue on direct appeal did not result in constitutionally deficient

performance. Because Mr. Barnes’s ineffective assistance claim lacked merit, the

district court concluded that Mr. Barnes had failed to establish cause for the

procedural default of his Confrontation Clause claim.

      The district court then proceeded to address the merits of Mr. Barnes’s

second claim, and concluded, as did the Colorado Court of Appeals, that trial

counsel was not constitutionally ineffective for failing to renew a motion for

mistrial after admission of the alleged hearsay statement—again, the statement

was non-testimonial, and Mr. Barnes’s girlfriend denied ever stating that she was

afraid of Mr. Barnes, making it unlikely that the statement caused prejudice to

Mr. Barnes. Accordingly, the district court dismissed Mr. Barnes’s case with

prejudice.

      Mr. Barnes seeks to appeal from the district court’s denial of his § 2254

petition.




      4
             See generally Crawford v. Washington, 541 U.S. 36, 59 (2004)
(“Testimonial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.”); United States v. Smalls, 605 F.3d 765, 778 (10th
Cir. 2010) (analyzing Crawford and its progeny with respect to the meaning of
the term “testimonial”).

                                         -5-
                                          II

      A COA is a jurisdictional prerequisite to our review of the merits of

a § 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49

(2012) (discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)).

We will issue a COA only if the applicant makes “a substantial showing of the

denial of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th

Cir. 2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted);

accord Clark, 468 F.3d at 713. An applicant “satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude that the issues

presented are adequate to deserve encouragement to proceed further.” Dulworth

v. Jones, 496 F.3d 1133, 1136–37 (10th Cir. 2007) (quoting Miller-El v. Cockrell,

537 U.S. 322, 327 (2003)) (internal quotation marks omitted).

      When the district court denies relief “on procedural grounds, the applicant

faces a double hurdle. Not only must the applicant make a substantial showing of

the denial of a constitutional right, but he must also show ‘that jurists of reason

would find it debatable . . . whether the district court was correct in its procedural

ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Gonzalez, 132 S. Ct.

at 648.

                                         -6-
                                         III

      Mr. Barnes seeks a COA from our court, alleging the following: (1) the

district court erred by dismissing his case with prejudice based on its conclusion

that his Confrontation Clause claim lacked merit; (2) the district court erred by

concluding that the Confrontation Clause claim was procedurally defaulted; and

(3) the district court misrepresented the facts of appellate counsel’s deficient

performance.

      Pursuant to the analytic framework that the Supreme Court has established,

most notably in Miller-El and Slack, we have carefully reviewed Mr. Barnes’s

combined opening brief and application for COA as well as the record, including

the district court’s thorough order denying Mr. Barnes’s § 2254 petition. Based

upon this review, we conclude that Mr. Barnes is not entitled to a COA on any of

his claims because he has not made a substantial showing of the denial of a

constitutional right. For substantially the same reasons articulated by the district

court, reasonable jurists could not debate whether his § 2254 petition should have

been resolved in a different manner, and the issues that Mr. Barnes seeks to raise

on appeal are not adequate to deserve encouragement to proceed further.

      Mr. Barnes also seeks to proceed in forma pauperis. However, he has not

demonstrated “the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624,

627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,

                                        -7-
812 (10th Cir. 1997)) (internal quotation marks omitted). Therefore, we decline

to grant this relief.

                                       IV

       For the foregoing reasons, we deny Mr. Barnes’s request for a COA, deny

his motion to proceed in forma pauperis, and dismiss this matter.



                                     ENTERED FOR THE COURT


                                     Jerome A. Holmes
                                     Circuit Judge




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