                                                                  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
 BERNARD JONES,

        Petitioner - Appellant,

 v.                                                            No. 18-1228
                                                      (D.C. No. 1:16-CV-03048-PAB)
 LOU ARCHULETA, Warden; THE                                      (D. Colo.)
 ATTORNEY GENERAL OF THE STATE
 OF COLORADO,

        Respondents - Appellees.
                       _________________________________

            ORDER DENYING A CERTIFICATE OF APPEALABILITY
                    _________________________________

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

       Bernard Jones, an inmate in the custody of the Colorado Department of

Corrections, requests a certificate of appealability (COA) to challenge the denial by the

United States District Court for the District of Colorado of his application for relief under

28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a prisoner in state

custody to appeal from the denial of a writ of habeas corpus). Because Mr. Jones 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 a COA and dismiss the appeal.

       I.     Background and Standard of Review

       In 1997 Mr. Jones was convicted of first-degree sexual assault and possession with

intent to distribute a controlled substance, and he was adjudicated a habitual criminal. He
is serving sentences of 64 years for the sexual assault and 96 years for the controlled-

substance conviction. Mr. Jones contends that he and the victim had consensual sex and

that he did not intend to distribute a controlled substance.

       In 2000 the Colorado Court of Appeals (CCA) denied relief on direct appeal, and

the Colorado Supreme Court denied review. Mr. Jones then sought postconviction relief

under Colorado Rule of Criminal Procedure 35(c), alleging several violations of his

constitutional rights, including ineffective assistance of counsel. The trial court denied

relief, but in 2003 the CCA remanded the case for an evidentiary hearing on claims of

ineffective assistance relating to counsel’s handling of bite-mark evidence, the victim’s

juvenile conviction, and the victim’s alleged gang affiliation. In 2006 the trial court held

an evidentiary hearing on these claims, and then in 2012 it reconvened and completed the

hearing before denying relief. The CCA affirmed and the Colorado Supreme Court

denied review.

       In December 2016 Mr. Jones applied for relief under 28 U.S.C. § 2254. The

district court held that he was not entitled to relief on any claim and denied Mr. Jones’s

motions for additional discovery, an evidentiary hearing, and appointment of counsel.

       In this court Mr. Jones presents a claim of vindictive prosecution and four claims

of ineffective assistance of counsel: (1) failing to investigate and present evidence of the

victim’s gang affiliation; (2) failing to investigate and present evidence of the victim’s

pending juvenile adjudication; (3) failing to have bite-mark evidence tested by a defense

expert; and (4) representing Mr. Jones despite a conflict of interest.




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       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 petition 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 other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that 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 light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(1), (2). As we have explained:


       Under the “contrary to” clause, we grant relief only if the state court arrives
       at a conclusion opposite to that reached by the Supreme Court on a question
       of law or if the state court decides a case differently than the Court has on a
       set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation

marks omitted). Relief is provided under the “unreasonable application” clause “only if

the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.


                                              3
(brackets and internal quotation marks omitted). Thus, a federal court may not grant

relief simply because it concludes in its independent judgment that the relevant state-

court decision applied clearly established federal law erroneously or incorrectly. See id.

at 1196. Rather, “[i]n order for a state court’s decision to be an unreasonable application

of this Court’s case law, the ruling must be objectively unreasonable, not merely wrong;

even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (per

curiam) (internal quotation marks omitted). To prevail, “a litigant must show that the

state court’s ruling was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement.”

Id. (internal quotation marks omitted).

       In addition, AEDPA establishes a deferential standard of review for state-court

factual findings, mandating “that state court factual findings are presumptively correct

and may be rebutted only by ‘clear and convincing evidence.’” Saiz v. Ortiz, 392 F.3d

1166, 1175 (10th Cir. 2004) (quoting 28 U.S.C. § 2254(e)(1)). Further, the Supreme

Court has held that review under § 2254(d)(1), just as review under § 2254(d)(2), “is

limited to the record that was before the state court that adjudicated the claim on the

merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011); see id. at 185 n. 7. “AEDPA’s

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

of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004).




                                             4
       II.    Mr. Jones’s claims

              A. Vindictive Prosecution

       Mr. Jones contends that the prosecutor, Gordon Denison, aggressively prosecuted

this case because of his vindictiveness toward Mr. Jones for successfully challenging a

prior conviction. The state court did not conduct an evidentiary hearing at which Mr.

Jones could develop a record to produce new evidence in support of this claim. Our

review is confined to the state-court record. See Cullen, 563 U.S. at 181. And the only

evidence Mr. Jones points to in support of his claim is meager. All he does is (1) assert

that Mr. Denison refused to offer a plea bargain and (2) note statements by the trial judge

that may suggest that Mr. Denison was an aggressive prosecutor, but not that he was

more aggressive in Mr. Jones’s case than in prior cases. The CCA’s conclusion that this

record did not support a claim of vindictiveness did not constitute an unreasonable

application of federal law or an unreasonable determination of facts. See 28 U.S.C.

§ 2254(d)(1), (2). Mr. Jones now also argues that after taking over the case from a

different prosecutor, Mr. Denison amended the habitual-criminal charges to give Mr.

Jones the maximum aggravated sentence. But Mr. Jones did not raise this argument in

district court, so we decline to address it. See Parker v. Scott, 394 F.3d 1302, 1307 (10th

Cir. 2005) (§ 2254 claims not raised in district court are waived).

              B. Ineffective Assistance

       To prevail on claims of ineffective assistance of counsel, a defendant must show

both that his counsel’s performance was deficient—“that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth


                                             5
Amendment”—and that “the deficient performance prejudiced [his] defense.” Strickland

v. Washington, 466 U.S. 668, 687 (1984). In conducting this analysis, “a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. at 689 (internal quotation marks omitted). Further, to establish that a

defendant was prejudiced by counsel’s deficient performance, he “must show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694. “It is not enough for the

defendant to show that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. “Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700

(emphasis added).

                     1. Gang affiliation of victim

       Mr. Jones first argues that his counsel was ineffective for failing to investigate and

to present evidence about the victim’s gang affiliation. According to Mr. Jones, his trial

strategy was to show that he and the victim had engaged in consensual sex and that the

victim had a motive to lie about it because she belonged to a gang that forbade having sex

with nonmembers. The CCA held that Mr. Jones did not show deficient performance. It

reasoned that defense counsel twice unsuccessfully sought a continuance to pursue an

investigation of the victim’s gang ties and that once the case went to trial, defense


                                              6
counsel could have made a strategic decision not to present the limited evidence he did

have on the gang ties.

       In this court Mr. Jones contends that his counsel’s performance was deficient

because counsel did not call witnesses to support the motions for continuance. If

presented with those witnesses, he argues, the court may have granted a continuance and

given defense counsel time to further investigate this issue before trial. He points to

defense counsel’s testimony that he may have made a mistake by relying on affidavits

and not calling witnesses. But counsel went on to say that he had no recollection of ever

having called witnesses for a continuance motion in any proceeding and that the only

possible mistake he could have made would have been not calling witnesses when the

court insisted on live witnesses. And there is nothing in the record showing that the trial

court had so insisted.

       Mr. Jones also contends that, despite the denial of a continuance, counsel already

had some evidence of the victim’s gang affiliation and should have used it at trial. He

asserts that the district court erred by accepting the state court’s reasoning that defense

counsel may have made a strategic decision not to present this evidence at trial. He

argues that defense counsel clearly did not make such a strategic decision, as shown by

the motions asking for more time to investigate the victim’s gang ties. But that

establishes only that counsel intended to put on evidence if he obtained more than he had.

Mr. Jones has made no showing that the evidence already gathered was admissible or

persuasive. And when counsel has conducted an adequate investigation, the decision




                                              7
whether to put on certain evidence is the sort of decision that is “virtually

unchallengeable” on an ineffective-assistance claim. Strickland, 466 U.S. at 690.

       Moreover, the CCA ruled that Mr. Jones had not shown any prejudice from the

alleged deficient performance. As the CCA pointed out, even Mr. Jones’s own expert

witness could not say that there was a reasonable probability that there would have been a

different outcome if defense counsel had more thoroughly explored the alleged gang ties.

       No reasonable jurist could debate the district court’s rejection of this claim.

                     2. Juvenile adjudication against victim

       Mr. Jones’s second ineffective-assistance claim is that his counsel failed to

impeach the victim’s testimony with evidence of her juvenile adjudication for theft.

According to Mr. Jones, the favorable plea deal she received shortly before Mr. Jones’s

trial could have been portrayed as a possible motive for her changing her testimony about

who provided her with cocaine. (Before accusing Mr. Jones of supplying her and others

with cocaine, the victim allegedly stated to the police that two other people with whom

they were partying had supplied the drug.)

       The CCA gave several reasons for concluding that counsel’s performance was not

deficient: (1) although a charge pending during trial may be evidence of motive or bias,

the victim’s juvenile adjudication was no longer pending at the time of trial; (2) the

record supported the trial court’s finding that the victim’s plea deal was not unusual in a

way that would make her testimony at trial suspicious; and (3) counsel may have made a

reasonable strategic determination not to impeach the victim with this evidence because it




                                              8
could have backfired by highlighting the age gap between the teenage victim and Mr.

Jones, who was in his late 30s.

       No reasonable jurist could debate the district court’s denial of relief on this claim.

                      3. Bite-mark evidence

       Mr. Jones’s third ineffective-assistance claim concerns bite-mark evidence. The

victim had a bite mark on her face and alleged that Mr. Jones had bitten her during the

sexual assault. At trial an expert for the prosecution testified that the bite mark was

consistent with Mr. Jones’s dentition. Mr. Jones’s counsel cross-examined this expert but

did not present a bite-mark expert for the defense. Mr. Jones claims that his counsel was

ineffective for failing to prepare a defense expert to testify. He alleges that counsel failed

to send all the evidence to the defense’s hired expert, Dr. Dial, so that he could conduct

his own testing in time to testify at trial.

       The CCA rejected the claim of deficient performance because Mr. Jones’s counsel

consulted an expert before trial and then reasonably awaited the prosecution’s report

before deciding whether to conduct further testing, tried unsuccessfully to get a

continuance for its expert to test the evidence and to prepare to testify, learned from the

expert that he was unable to exclude Mr. Jones as the source of the bite mark, and, after

all that, made the reasonable strategic decision to attack the prosecutor’s expert on cross-

examination instead of calling a defense expert. The district court concluded that the

CCA’s decision was not based on an unreasonable application of the law or on clearly

erroneous fact-finding, so relief was barred by AEDPA. The district court also denied

Mr. Jones’s motion for additional discovery and an evidentiary hearing on this claim,


                                               9
because review was limited to the state-court record under Cullen, 563 U.S. at 181, and

because the evidence that Mr. Jones sought did not relate to deficient performance.

       In this court Mr. Jones contends that the district court did not address his argument

that the state trial court reneged on a promise to reconvene the remanded Rule 35(c)

proceeding to allow for testimony from Dr. Dial to show deficient performance by

counsel. According to Mr. Jones, Dr. Dial could prove deficient performance by

testifying that counsel failed to send him all the evidence necessary to be ready to testify

at trial; a different expert, Dr. Cardoza, could then prove prejudice by testifying that the

bite-mark evidence exculpated Mr. Jones. But Mr. Jones’s summary of the record is

inaccurate, because the state court promised to reconvene only to hear Dr. Cardoza testify

about the prejudice prong—not to hear Dr. Dial testify about deficient performance. Dr.

Cardoza could not testify to facts relevant to deficient performance because he was not

involved in this case until well after trial.

       In sum, Mr. Jones does not direct us to evidence in the state-court record that

would show that the state court erred in determining that there had not been deficient

performance. No reasonable jurist could debate the district court’s ruling that the CCA’s

rejection of this claim was not based on an unreasonable determination of the facts or was

not contrary to, or involved an unreasonable application of, Strickland.

                      4. Conflict of interest

       Mr. Jones claims counsel was ineffective because of a conflict of interest that

deprived him of the chance to properly weigh his right to testify at trial. He explains that

the public defender’s office representing him at trial had also defended him for two of his


                                                10
prior convictions, and he wished to challenge those convictions before trial so that they

could not be used to impeach him if he testified. He states that the trial court recognized

an “actual conflict of interest” and appointed an attorney to attack these convictions

before trial, but the court allegedly failed to notify this attorney that he had been

appointed. Without help from this appointed counsel, Mr. Jones argues, he could not

weigh whether to testify at trial or whether his prior convictions would be used against

him. The CCA rejected this claim for lack of prejudice. It noted (1) that when the prior

convictions were later challenged by nonconflicted counsel, the challenge failed; and (2)

that Mr. Jones did not testify at trial, so if fear of impeachment had led to his decision not

to testify, the fear was valid. Relying on Cuyler v. Sullivan, 446 U.S. 335 (1980), and

Holloway v. Arkansas, 435 U.S. 475 (1978), Mr. Jones contends that he is entitled to a

reversal despite the clear proof of no prejudice. But those cases both involved attorneys

who represented multiple defendants, a situation not present here. No reasonable jurist

could debate the federal district court’s decision that the decision of the CCA was not

contrary to and did not unreasonably apply clearly established Supreme Court precedent.

              C. Supplemental Reply Brief

       Finally, Mr. Jones argues that the district court abused its discretion by not

granting an enlargement of time to file a supplemental reply brief. But the court

explained that it denied this motion because it had previously granted five extensions of

time to file a reply. We see no abuse of discretion.




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      Reasonable jurists could not debate the correctness of the district court’s denial of

relief under § 2254. We therefore DENY a COA, and DISMISS the appeal.


                                             Entered for the Court


                                             Harris L Hartz
                                             Circuit Judge




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