                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 7, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 RODNEY R. VALENZUELA,

       Petitioner - Appellant,
                                                        No. 11-1480
 v.                                           (D.C. No. 1:10-CV-02681-WJM)
                                                         (D. Colo.)
 ANGEL MEDINA, Warden, L.C.F.;
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner Rodney Valenzuela, a state inmate proceeding pro se, seeks a

certificate of appealability (“COA”) so that he may appeal the district court’s

denial of his 28 U.S.C. § 2254 petition. Because Mr. Valenzuela has not “made a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a COA and dismiss his appeal.



                                    Background

      Mr. Valenzuela was convicted by a Colorado jury of first-degree murder,

kidnapping, attempted robbery, and controlled substance distribution, and was
sentenced to life without the possibility of parole. 1 R. 5. On direct appeal, the

convictions were affirmed. People v. Valenzuela, No. 05CA1992 (Colo. Ct. App.

April 24, 2008), 1 R. 133. The Colorado Supreme Court denied certiorari review.

1 R. 174. He then sought state post-conviction relief which was rejected. People

v. Valenzuela, 09CA1983 (Colo. Ct. App. Sept. 30, 2010). In his federal petition,

Mr. Valenzuela advanced seven claims for relief, each of which the district court

rejected. Valenzuela v. Medina, No. 10-cv-02681-WJM, 2011 WL 4369206 (D.

Colo. Sept. 19, 2011). On appeal, he argues that the district court erred by

rejecting his claims concerning (1) the prosecution’s discussion of his brother’s

confession, (2) the prosecution’s use of various inflammatory and unproven

statements, (3) insufficient evidence on the kidnapping charge, and (4) ineffective

assistance of appellate counsel.



                                     Discussion

      The district court was required to defer to the state court proceedings on

these claims unless they “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law,” or “resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-

(2). Section 2254(d) is difficult to satisfy—a defendant must show that a state

court's ruling is “so lacking in justification that there was an error well

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understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).

Factual findings made by state courts are presumed correct unless the

presumption is rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). Here, the district court’s ultimate resolution of these issues,

dependent upon state court opinions and records, is not reasonably debatable.

A.    Discussion of Brother’s Guilty Plea

      The Colorado Court of Appeals reasoned that a prompt curative instruction

corrected any prejudice from the improper discussion of the guilty plea; the

district court also noted that there was overwhelming evidence of guilt. 1 R. 137;

Valenzuela, 2011 WL 4369206, at *5. Mr. Valenzuela argues that no instruction

could effectively cure the reference to his brother’s plea, and that any error could

not be harmless because the jury was bound to speculate that his brother pled to

first-degree murder. Aplt. Br. 4(a)-(c). This presumes that jurors would ignore

express instructions to disregard the statement, which is not legally supportable.

Penry v. Johnson, 532 U.S. 782, 799 (2001) (appellate courts presume that jurors

follow instructions).

B.    Broader Prosecutorial Misconduct

      Mr. Valenzuela relies on the following as prosecutorial misconduct: (1)

discussion of his brother’s guilty plea, (2) discussion of allegations of threats

made to witnesses in violation of a ruling in limine, (3) use of the term

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“execution” in describing the killing, and (4) encouragement (explicitly or

implicitly) of the jury to protect the community and hold Mr. Valenzuela

accountable. Aplt. Br. 4(c)-(d). We have addressed Mr. Valenzuela’s argument

relating to the guilty plea. The state appellate court reasoned that any prejudice

from the improper discussion of alleged witness threats was mitigated by the trial

court’s curative instruction, and that the trial court did not abuse its discretion in

denying a mistrial. 1 R. 138. It also concluded that the term “execution” was a

permissible comment on the evidence, and that the remaining comments did not

constitute plain error and did not render the trial fundamentally unfair. 1 R. 141.

These conclusions are supported by the record; hence, the district court’s

conclusion that deference is required is not reasonably debatable.

      Mr. Valenzuela further argues that, taken together, these acts constitute

cumulative error sufficient to warrant vacating his conviction and remanding for a

new trial, and that the district court erred by concluding otherwise. Aplt. Br.

4(c)-(d). Cumulative error looks at alleged errors of constitutional dimension

found to be harmless, and aggregates them to assess whether they so permeated

the trial as to deny fundamental fairness. See Young v. Sirmons, 551 F.3d 942,

972 (10th Cir. 2008). Mr. Valenzuela contends that there are “minimally . . . two

clear errors,” Aplt. Br. 4(d), presumably referring to the discussions of his

brother’s guilty plea and the alleged witness threats. The district court erred by

refusing to consider those errors together; however, in light of the Colorado Court

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of Appeals’s strong rejection of the underlying claims on their merits, and against

a backdrop of the entire record, those errors did not render the trial fundamentally

unfair, even when considered together, in light of the prompt curative instructions

and overwhelming evidence of guilt.

C.    Sufficiency of the Evidence for Kidnapping Conviction

      Mr. Valenzuela also argues that the district court erred by rejecting his

argument that there was insufficient evidence to support his kidnapping

conviction. Aplt. Br. 4(d)-(f). The state court applied a standard consistent with

Jackson v. Virginia, 443 U.S. 307, 319 (1979), by evaluating the evidence in the

light most favorable to the State, and concluded that evidence supported the

verdict. Essentially, Mr. Valenzuela urges this court to evaluate the

circumstantial evidence in the light most favorable to him—crediting his version

of events and concluding that he was not a joint participant. Aplt. Br. 4(e).

Nothing Mr. Valenzuela has argued suggests that the state court’s rejection of this

claim is an unreasonable application of federal law, or that the district court erred

by deferring to that rejection.

D.    Ineffective Assistance of Counsel

      Finally, Mr. Valenzuela argues that the district court erred by rejecting his

argument that his state appellate counsel’s failure to raise an argument relating to

an involuntary intoxication defense instruction constituted ineffective assistance

of counsel. Aplt. Br. 4(f)-(g). The state appellate court rejected this claim on the

                                         -5-
basis that Mr. Valenzuela could not show deficient performance, as the jury

instructions as a whole correctly conveyed the law. 1 R. 248-51. Mr. Valenzuela

has not shown that this is an unreasonable application of federal law.

      We DENY Mr. Valenzuela’s request for a COA and DISMISS his appeal.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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