                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                  October 13, 2016
                                                                 Elisabeth A. Shumaker
                               TENTH CIRCUIT                         Clerk of Court




    SIMON SUE,

              Petitioner-Appellant,

    v.                                                  No. 16-1104
                                              (D.C. No. 1:15-CV-01055-RPM)
    KRIS KLINE, Warden, Kit Carson                       (D. Colo.)
    Correctional Center; CYNTHIA
    COFFMAN, Attorney General for
    State of Colorado,

              Respondents-Appellees.



           ORDER DENYING CERTIFICATE OF APPEALABILITY *



Before KELLY, HOLMES, and MORITZ, Circuit Judges.




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       This order is not binding precedent except under the doctrines of law of the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

      Petitioner-Appellant Simon Sue, a Colorado state prisoner sentenced in

2003 to a term of imprisonment of fifty-three years, seeks a certificate of

appealability (“COA”), with the assistance of counsel, to challenge the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

      In his petition, Mr. Sue contends that he received ineffective assistance of

counsel (“IAC”) when counsel (1) ignored his alleged instructions to file an

appeal in the aftermath of his aggravated sentence (opting instead to pursue a

sentencing reconsideration motion under Colorado state court rules), and (2)

otherwise failed to advise him of his appellate options. The state court denied his

IAC claim on the merits, and the district court denied his § 2254 petition and

declined to issue a COA. Mr. Sue now claims that these decisions ran “clearly”

afoul of Roe v. Flores-Ortega, 528 U.S. 470 (2000), and requests that we issue a

COA on his IAC claims.

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

Sue’s request for a COA and dismiss this matter.

                                         II

      On February 25, 2003, the State of Colorado (“State”) filed a multi-count

amended criminal information in the District Court of Park County, Colorado,

charging Mr. Sue with a laundry list of offenses, including first-degree murder,



                                         2
conspiracy to commit first-degree murder, and witness tampering. 1 See Pet’r’s

App., CD of State Court Pleadings, at 650–61 (Fourth Am. Info., filed Feb. 25,

2003). Faced with the prospect of consecutive life sentences (without the

possibility of parole), Mr. Sue pleaded guilty to three counts of conspiracy to

commit first-degree murder and one count of violating the Colorado Organized

Crime Act, Colo. Rev. Stat. Ann. § 18-17-101 to -109 (“COCA”). See id. at

641–46 (Plea Agreement, signed Feb. 25, 2003); see also Pet’r’s App., CD of

State Court Transcripts, at 998–1015 (Tr. Plea Hr’g, dated Feb. 25, 2003). In

exchange, the State dismissed the remaining charges, and stipulated that “the total

sentence” on all pleaded counts would “be not less than forty years plus five years

of parole” and not more than “sixty years plus five years of parole.” Pet’r’s App.,

CD of State Court Pleadings, at 642 (emphasis added). Nevertheless, at the plea

hearing, the state court judge advised Mr. Sue that [1] the conspiracy counts

carried “a term of imprisonment . . . of anywhere from 16 to 48 years plus a

mandatory five year parole period,” [2] the COCA count carried “a presumptive

range of anywhere from 8 to 24 years plus 5 years of parole,” [3] the possible

sentencing ranges could be increased or decreased, depending upon any finding of

1
       The State filed the initial Information on April 30, 2001, an Amended
Information on August 28, 2001, a Second Amended Information on January 28,
2002, and a Third Amended Information on August 16, 2002. See Pet’r’s App.,
CD of State Court Pleadings, at 17–22 (Info., filed Apr. 30, 2001), 64–72 (Am.
Info., copy transmitted Aug. 30, 2001), 122–32 (Second Am. Info., filed Jan. 28,
2002), 289–99 (Third Am. Info., filed Aug. 16, 2002). The operative one here is
the Fourth Amended Information, filed on February 25, 2003. See id. at 650–61.

                                         3
aggravating or mitigating circumstances, and [4] the plea had the effect of

waiving, in primary part, his right to appeal. Pet’r’s App., CD of State Court

Transcripts, at 1004–08 (Tr. Plea Hr’g, dated Feb. 25, 2003). Mr. Sue advised the

court, in turn, that he was executing the plea agreement knowingly and

voluntarily and that he had received adequate assistance and consultation from his

attorneys, Kaufman and Levinson, LLC, regarding his plea. See id. at 1012–13.

                                         A

      Based on a finding of aggravating circumstances (essentially, the palpable

risk of recidivism), and following testimony concerning the culpability of Mr.

Sue’s co-conspirators (Isaac Grimes, Jonathan Matheny, and Glenn Urban), on

August 26, 2003, the state court judge sentenced Mr. Sue to three concurrent

forty-five-year terms of imprisonment on the conspiracy counts and a consecutive

eight-year term of imprisonment on the COCA count, followed by a mandatory

five-year parole period. See id. at 1016–1285 (Tr. Sentencing Hr’g, dated Aug.

26, 2003). In addition, the state court judge advised him of his right to appeal

from the sentence and resultant judgment of conviction, and to obtain, if eligible,

court-appointed counsel for purposes of an appeal. See id. at 1284.

      Rather than file an appeal, on December 24, 2003, Mr. Sue’s retained trial

counsel, Kaufman & Levinson, LLC, filed a motion to reduce his sentence under




                                         4
Colorado Rule of Criminal Procedure 35(b), 2 on the grounds that state prosecutors

advanced inconsistent positions during the sentencing of Mr. Sue and one of his

co-conspirators, Jonathan Matheny. See Pet’r’s App., CD of State Court

Pleadings, at 949–51 (Mot. for Reduction of Sentence, filed Dec. 24, 2003).

More specifically, Mr. Sue’s trial counsel took issue with the fact that, during his

sentencing, state prosecutors argued as an aggravating circumstance that Mr. Sue

was “responsible for planning and implementing the [underlying] murders[,]” and

then took the diametrically opposite position during Mr. Matheny’s sentencing

that he (and not Mr. Sue) “actually planned and created the protocol for the

[underlying] homicides.” Id. at 949.

      However, on June 29, 2004, James A. Castle, Esq., replaced Kaufman &

Levinson LLC as counsel for Mr. Sue. See id. at 685 (Substitution of Counsel,

filed June 29, 2004). Mr. Castle then moved to amend the Rule 35(b) motion to

2
       Colorado Rule of Criminal Procedure 35(b) provides the procedural
mechanism for a criminal defendant to seek reconsideration of a sentence, and
specifically states, in relevant part, that the sentencing court

             may reduce the sentence provided that a motion for reduction of
             sentence is filed (1) within 126 days (18 weeks) after the
             sentence is imposed, or (2) within 126 days (18 weeks) after
             receipt by the court of a remittitur issued upon affirmance of the
             judgment or sentence or dismissal of the appeal, or (3) within
             126 days (18 weeks) after entry of any order or judgment of the
             appellate court denying review or having the effect of upholding
             a judgment of conviction or sentence.

Colo. R. Crim. P. 35(b).


                                          5
advance the argument that Blakely v. Washington, 542 U.S. 296 (2004)—a case

decided nearly one year after Mr. Sue’s sentence—rendered the aggravated

sentence “unconstitutional.” Id. at 687–89 (Mot. to Amend Mot. Filed Pursuant

to Col. R. Crim. P. Rule 35(B) & for Continuance of Currently Scheduled Hr’g on

the Mot., filed June 29, 2004). On September 21, 2004, however, Mr. Castle

moved to withdraw as counsel at Mr. Sue’s request, see id. at 690–91 (Mot. to

Withdraw as Counsel for the Def., filed Sept. 21, 2004), 692–93 (Notice of Intent

to Withdraw, filed Sept. 21, 2004), 694 (Order, dated Sept. 21, 2004); Mr. Sue

then withdrew the Rule 35(b) motion filed through prior counsel, in favor of

proceeding on his own contemporaneously-filed motion for correction of an

illegal sentence under Colorado Rule of Criminal Procedure 35(a). 3 See id. at 704

(Mot. to Withdraw[] Mot. of 35(b), filed Oct. 26, 2004), 706–10 (Mot. to Correct

Sentence, filed Oct. 26, 2004).

                                         B

      In his pro se motion (“Sue I”), Mr. Sue argued (like his prior counsel) that

the state court’s imposition of an aggravated sentence ran afoul of his Sixth




3
      Colorado Rule of Criminal Procedure 35(a) provides the means for
correcting an illegal sentence, and states that the sentencing court “may correct a
sentence that was not authorized by law or that was imposed without jurisdiction
at any time and may correct a sentence imposed in an illegal manner within the
time provided . . . for the reduction of sentence” under Colorado Rule of Criminal
Procedure 35(b). Colo. R. Crim. P. 35(a).

                                         6
Amendment right under the principles espoused in Apprendi v. New Jersey, 530

U.S. 466 (2000), and interpreted in Blakely. See id. at 706–10. On February 28,

2005, however, the state court found that his sentence did not violate either

decision, because Mr. Sue “implicitly and specifically admitted” to the

aggravating factors by “knowing[ly]” stipulating to “a sentence in the aggravating

range.” Pet’r’s App., Vol. I, at 18–21 (Tr. Rule 35 Hr’g, dated Feb. 28, 2005).

On appeal, the Colorado Court of Appeals (“CCA”) affirmed, finding Blakely

inapplicable to sentences—like Mr. Sue’s—that became final before June 24,

2004 (i.e., the date Blakely was issued), and determining, in any event, that Mr.

Sue’s sentence comported with Apprendi because it rested within the “applicable

statutory maximum, as that term was understood before the announcement of

Blakely.” Id. at 22–24 (Order, dated Feb. 1, 2007).

                                          C

      During the pendency of the appeal, Mr. Sue’s new counsel, Antony M.

Noble, Esq., filed a petition for post-conviction relief under Colorado Rule of

Criminal Procedure 35(c), 4 arguing, in relevant part, that Mr. Sue’s counsel at the

time of sentencing (Kaufman & Levinson, LLC) provided ineffective assistance

by failing to object to the aggravated sentence and by failing to file a direct


4
       Under certain circumstances, Colorado Rule of Criminal Procedure 35
allows criminal defendants to mount collateral attacks to their conviction and/or
sentence, even after exhausting their direct appeal rights. See Colo. R. Crim. P.
35(c).

                                          7
appeal (“Sue II”). See Pet’r’s App., CD of State Court Pleadings, at 838–44 (Pet.

for Post-Conviction Relief Pursuant to Crim. P. 35(c), filed Aug. 21, 2006).

Following resolution of the initial appeal, the state court conducted an evidentiary

hearing on Mr. Sue’s motion, which spanned several nonconsecutive days. See

Pet’r’s App., CD of State Court Transcripts, at 1365–1454 (Tr. Evidentiary Hr’g,

dated May 2, 2008), 1455–82 (Tr. Evidentiary Hr’g, dated June 23, 2008),

1483–1650 (Tr. Evidentiary Hr’g, dated Aug. 22, 2008).

      During the first day of the evidentiary hearing, May 2, 2008, Mr. Sue

testified that his trial counsel went through the plea agreement with him “page by

page” and “section by section,” and explained to him that, in signing the plea

agreement, he stipulated to a sentence between forty and sixty years and waived

any appeal other than on the grounds of an illegal sentence, an illegal plea, and/or

the imposition of a sentence beyond the agreed-upon range. Id. at 1385–88.

Nevertheless, Mr. Sue detailed his view that he received an unfair sentence that

differed from what he bargained for, and claimed that he instructed his trial

counsel, following sentencing, “to do something about” it—and specifically

advised that he “want[ed] an appeal.” Id. at 1399; accord id. at 1428 (restating

his claim that he told trial counsel that he “want[ed] an appeal” of his sentence).

Mr. Sue then claimed that he reiterated his concerns through three subsequent

telephone calls, in which he inquired more generally about the status of his



                                          8
case—without mentioning the term “appeal”— and raised the prospect that his

sentence ran afoul of Apprendi. See id. at 1400–03, 1426–36.

      During the second day of substantive testimony, August 22, 2008, Mr.

Sue’s prior counsel at the time of sentencing (and shortly thereafter), Rick

Levinson, Amy Kaufman, and James Castle, testified concerning their

recollections of the handling of Mr. Sue’s case. See generally id. at 1492–1584.

Mr. Levinson stated, for his part, that the length of the sentence “upset” Mr. Sue,

and that he understood that Mr. Sue wanted counsel “to take action on the

sentence[,]” but couldn’t recall any specific mention of an appeal. Id. at

1513–14. In addition, Mr. Levinson explained that he and his partner, Ms.

Kaufman, made the strategic decision to pursue a reduction of sentence on the

inconsistency issue, because they reasoned that their chances for relief were

greater through that vehicle than a direct appeal or the pursuit—at the outset—of

the potential Apprendi issue. See id. at 1518–20 (testifying that counsel decided

not to pursue an Apprendi challenge, out of concern that the sentencing court

could have gotten “to the same place in terms of the number of years” even in the

absence of the “aggravation,” and because they had some concerns that

resentencing could have resulted in a greater term of imprisonment), 1523

(explaining counsel’s belief that they had “a very good substantive” Rule 35(b)

“motion for reduction of sentence”), 1527–29 (reiterating the same belief and the

perceived risks of pursuing a different path for relief). More specifically, Mr.

                                         9
Levinson stated that they “made a judgment call” that their motion constituted an

“effective avenue for relief for Mr. Sue,” and they believed that, by reserving a

sentencing challenge on illegality grounds under Rule 35(a) (or perhaps Rule

35(c)), they “had constructed a mechanism to get two shots at the [sentence]

reduction apple.” Id. at 1527; see also id. at 1521 (making essentially the same

assertion about “tak[ing] another bite at the apple”).

      Ms. Kaufman then testified on her own recollections of Mr. Sue’s

sentencing. See id. at 1533–64. At that time, Ms. Kaufman acknowledged that

she discussed post-conviction motions with Mr. Sue on many occasions, but

denied recalling “a specific conversation” on the issue of an “appeal.” Id. at

1544–45. Beyond that, Ms. Kaufman explained that the concept of an “appeal”

means different things to non-lawyers, and claimed that she generally viewed

vague expressions along those lines to mean the filing of a Rule 35(b)

motion—which she did. 5 Id. at 1545–46. Nevertheless, she emphasized that she

would have “immediately referred” any client to an appellate lawyer, if he or she

said “I want to do a direct appeal on my illegal sentence.” Id. at 1559.



5
       Like Mr. Levinson, Ms. Kaufman emphasized that she poured over the plea
agreement with Mr. Sue, and stated that her general practice would have been to
discuss at length any issue touched upon by the plea agreement, whether related
to an appeal or otherwise. See Pet’r’s App., CD of State Court Transcripts, at
1555–57. She could not, however, recall whether she actually counseled Mr. Sue
on the appellate process and noted that it was unlikely that she specifically
advised him that he had forty-five days in which to file an appeal. See id.

                                          10
      Finally, Mr. Castle testified regarding his brief post-sentencing

representation of Mr. Sue. See id. at 1565–84. During his testimony, Mr. Castle

detailed the advice he provided on potentially withdrawing the guilty plea (post-

sentencing), see id. at 1568–70, and on pursuing potential post-conviction relief,

see id. at 1572–73. In connection with that process, Mr. Castle explained that he

reviewed the “enormous” defense file, determined that prior counsel had been

“extremely thorough to the point of almost being overdone,” and filed a motion to

correct a sentence in order to preserve the “aggravation” issue for appellate

review. Id. at 1572–77. Nevertheless, he stated that he did not complete any

further review (of the potential Apprendi issue or otherwise), because Mr. Sue

(and his family) asked him to withdraw. See id. at 1575, 1579–81.

      Following the testimony, the state court denied Mr. Sue’s motion, and made

two critical findings. See id. at 1621–25. First, the state court dispensed with the

notion that Mr. Levinson, Ms. Kaufman, or Mr. Castle had provided ineffective

assistance. More specifically, the state court reasoned that trial counsel did not

act ineffectively in failing to file a notice of appeal, because

             an appeal may mean many things to many different defendants.
             Appeal could mean [a motion under] 35(a), (b) or (c). Appeal
             could mean a direct appeal. Appeal could mean a writ of habeas
             corpus. Appeal means a second call to many defendants and to
             many lay people as well. Counsel, all three counsel, but mostly
             Kaufman and Levinson because they had more opportunity to, sat
             back, analyzed this, analyzed what would be most effective,
             analyzed the option of using a 35(b), decided that a direct appeal
             would not be effective, discussed this matter numerous

                                              11
              times . . . discussed the possibility of appeal possibly resulting in
              a longer sentence, discussed many different scenarios, many
              different outcomes, and . . . specifically . . . discussed issues with
              Mr. Sue, they didn’t ignore Mr. Sue, they didn’t ignore his calls.

Id. at 1621–22. The state court then addressed Mr. Sue’s testimony that he

wanted an “appeal” and Ms. Kaufman’s contrary testimony, and determined that it

need not adopt any particular version of events,

              because, again, as Ms. Kaufman said, an appeal can mean a lot
              of things. And there was a lot -- well, the emotional level in the
              courtroom with counsel and with the defendant was very high.
              But in any case, I have no doubt in my mind that both Kaufman
              and Levinson discussed this matter with each other, discussed
              what the best strategy would be, discussed this matter, and did
              return phone calls, and did speak to both the parents and to the
              defendant and to, in fact, the two brothers as she testified.

Id. at 1622. In other words, the state court credited Ms. Kaufman’s testimony and

its own experiences and observations, and found that counsel did not act

ineffectively, because they “discussed” and “chose[]” “avenues of appeal in the

general sense,” and because “nothing they did” prejudiced Mr. Sue. Id. at

1622–23. Stated more succinctly, the state court concluded that, “although they

didn’t file a notice of intent to file an appeal within 45 days,” counsel made “a

competent, strategic decision. And that[] [was] why it didn’t happen.” Id. at

1623.

        Turning then to the “more difficult” issue of whether Sue II qualified as a

successive request for relief, the state court reasoned that Mr. Sue “fully and

finally resolved” the issues presented in Sue II in his earlier Sue I matter. Id. at

                                            12
1625. As a result, the state court concluded that the Sue II motion “must be

dismissed” as successive. 6 Id. On appeal, the CCA affirmed, finding that Sue I

and Sue II raised “essentially . . . the same claim and [sought] the same relief –

reduction of his sentence because it was illegally aggravated under Apprendi and

Blakely.” Pet’r’s App., Vol. I, at 42 (Order, dated Mar. 11, 2010) (citations

omitted). For that reason, the CCA disposed of the appeal on successiveness

grounds, and did not reach the merits of Mr. Sue’s IAC claims. 7 See id. at 43

(“Because we have concluded that the trial court properly denied [Mr. Sue’s]

motion as successive, we need not address [his] claims of ineffective assistance of

counsel.”).

                                         D

      Following the affirmance, on October 8, 2010, Mr. Sue filed another pro se

motion for post-conviction relief under Colorado Rule of Criminal Procedure

35(c), contending that his post-conviction attorneys “failed him” by improperly




6
       Based on this conclusion, Mr. Sue takes the view, as detailed below, that
the state court resolved the Sue II motion on procedural grounds, without reaching
the merits of Mr. Sue’s IAC claim. See Pet’r’s Br. at 8. We reject that contention
for the reasons set forth infra note 10.
7
       The Colorado Supreme Court then denied Mr. Sue’s petition for a writ of
certiorari on October 18, 2010. See Pet’r’s App., CD of State Court Pleadings, at
1215 (Order, dated Oct. 18, 2010).


                                         13
litigating the effectiveness of trial counsel (“Sue III”). 8 Pet’r’s App., CD of State

Court Pleadings, at 1151–67 (Motion for Relief under Rule 35(c), filed Oct. 8,

2010). In opposition, the State argued that Mr. Sue’s third Rule 35(c) must be

denied as successive to Sue I and Sue II. See id. at 1240–41. On June 8, 2011,

the state court denied Mr. Sue’s Sue III motion on the grounds that his IAC

claims (against trial counsel and/or post-conviction counsel) lacked merit,

principally because Mr. Sue voluntarily “entered a plea of guilty” and received a

sentence “within the stipulated range.” Pet’r’s App., Vol. I, at 44–45 (Order,

dated June 8, 2011).

      On appeal, the CCA evaluated Mr. Sue’s IAC claims under the two-prong

test set forth in Strickland v. Washington, 466 U.S. 668 (1984) (and interpreted in

Flores-Ortega), and noted the “controverted testimony” concerning whether Mr.

Sue “specifically instructed his [trial] counsel to file an appeal on his behalf.”

See id. at 52–54 (Order, dated Jan. 16, 2014). Nevertheless, because the factual

record supported the finding that trial counsel consulted with Mr. Sue on his

“options,” and because Mr. Sue “never asked about the status of any appeal



8
       Given the pendency (at that time) of his certiorari petition with the
Colorado Supreme Court, Mr. Sue simultaneously filed a request to hold his
motion in abeyance and for the appointment of counsel. See Pet’r’s App., CD of
State Court Pleadings, at 1213–14 (Request to Hold Mot. in Abeyance & for
Appointment of Counsel, filed Oct. 8, 2010). On December 9, 2010, the state
court appointed Mr. Noble to represent Mr. Sue (again) in his post-conviction
proceedings. See id. at 1234 (Order, filed Dec. 9, 2010).

                                          14
following the sentencing hearing,” the court found no ineffectiveness in trial

counsel’s decision to pursue a post-conviction motion rather than an appeal. Id.

at 54–57. The Sue III court therefore concluded that Mr. Sue “necessarily could

not succeed” on his claim that post-conviction counsel rendered ineffective

assistance in failing to pursue IAC claims against trial counsel, and affirmed the

trial court’s denial of Mr. Sue’s motion. Id. at 57. The Supreme Court of

Colorado then denied his petition for writ of certiorari on September 8, 2014. See

Pet’r’s App., Vol. 1, at 405 (Order, dated Sept. 8, 2014).

                                            E

      On May 19, 2015, Mr. Sue filed the underlying § 2254 petition in federal

district court arguing, as he did in the prior state court proceedings, that his trial

counsel violated his Sixth Amendment right to effective assistance of counsel, by

failing to file a direct appeal. See id. at 3–15 (Appl. for a Writ of Habeas Corpus

Pursuant to 28 U.S.C. § 2254, filed May 19, 2015). On July 29, 2015, the State

filed an initial response; significantly, it stated that it did “not assert that [Mr.

Sue’s] claim [was] unexhausted, procedurally defaulted, or barred by the

applicable statute of limitations.” Id. at 63 (Respondents’ Initial Response, filed

July 29, 2015).

      Following the parties’ merits briefing, the district court denied the petition,

as well as a motion for reconsideration filed by Mr. Sue and his request for the



                                           15
issuance of a COA. 9 See Pet’r’s App., Vol. II, at 372–74 (Order for Dismissal,

dated Jan. 25, 2016), 388 (Order Denying Mot. to Vacate & Reconsider Order for

Dismissal and J., filed Mar. 4, 2016), 389 (Order Denying Mot. to Alter or Amend

Findings, dated Mar. 4, 2016). This timely appeal followed. See id. at 390

(Notice of Appeal, filed Mar. 31, 2016).

                                           II

      Mr. Sue may not appeal from the district court’s denial of his § 2254

petition unless we grant a COA. See 28 U.S.C. § 2253(c)(1)(A); Davis v.

Roberts, 425 F.3d 830, 833 (10th Cir. 2005); see also Gonzalez v. Thaler, --- U.S.

----, 132 S. Ct. 641, 649 (2012) (citing the “‘clear’ jurisdictional language . . . in



9
       The district court denied the petition due to Mr. Sue’s failure “to show
prejudice from ineffective assistance of counsel by failing to get his approval for
not filing a direct appeal.” Pet’r’s App., Vol. 2, at 374 (Order, filed Jan. 25,
2016) (emphasis added). In other words, while the state court addressed only the
first Strickland prong (i.e., trial counsel’s performance), the district court
addressed only the second Strickland prong (i.e., prejudice). Suffice it to say, we
decline to follow the particulars of the district court’s analysis here. It is the
district court’s ultimate resolution of Mr. Sue’s habeas petition that is our focus.
See Whitmore v. Parker, 484 F. App’x 227, 236 (10th Cir. 2012) (“adopting a
different rationale, [but] agree[ing] with the district court’s ultimate rejection of
[the habeas] claim”). And, as explicated infra, we deny Mr. Sue a COA because
we conclude that reasonable jurists could not debate that ultimate resolution. See
Self v. Milyard, 522 F. App’x 435, 437 n.2 (10th Cir. 2013) (noting that we can
deny a COA “so long as we are confident in the correctness of the district court’s
ultimate resolution of his habeas claims—and we are”); see also Brown v.
Roberts, 501 F. App’x. 825, 830 (10th Cir. 2012) (“While we arrive at that
conclusion through a somewhat different path than that employed by the district
court, we find that reasonable jurists could not disagree with the district court’s
ultimate resolution in dismissing the petition.”).

                                          16
§ 2253(c)(1)”). In order to obtain a COA, Mr. Sue must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also

Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). In other words, he must

demonstrate “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, 529 U.S. at 484 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4

(1983)).

      In addition, because Mr. Sue filed his federal habeas petition after the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), the provisions of AEDPA must “be incorporated into our

consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938

(10th Cir. 2004); see also Smith v. Duckworth, 824 F.3d 1233, 1240–41 (10th Cir.

2016); Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012). More

specifically, where the state court adjudicated the merits of the claim, as here, 10

10
       Mr. Sue argues that, because the state courts denied his later post-
conviction motions—at least in part—as improper successive requests for relief,
there has been no adjudication on the merits, and thus no basis to subject the state
court decisions to AEDPA deference. See, e.g., Pet’r’s Br. at 14–15 (arguing that
“the state courts did not decide the merits of his claim”). Looking exclusively to
Sue II, Mr. Sue specifically submits that the state courts resolved his claims (and,
by derivation, the issues raised here) on solely procedural grounds, because the
CCA affirmed the state trial court’s successive finding, and declined to reach his
IAC claims. See id. at 23–26. Mr. Sue’s position, however, effectively asks us to
brush aside the later decision by the CCA in Sue III, on the basis that Sue III
                                                                          (continued...)

                                          17
an applicant is not entitled to relief unless he can demonstrate that “the state

court’s resolution of his claims 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.’” Smith,

824 F.3d at 1241 (quoting Hooks, 689 F.3d at 1163); see also 28 U.S.C.

§ 2254(d)(1), (2) (source of the second-level internal quotation). In applying that

rubric, we limit our review “to the record . . . before the state court that

adjudicated the claim on the merits,” Cullen v. Pinholster, 563 U.S. 170, 181

(2011), and afford state-court factual findings a presumption of correctness

rebuttable only by “clear and convincing evidence,” Hooks, 689 F.3d at 1163

(quoting 28 U.S.C. § 2254(e)(1)).



(...continued)
concerned the ineffective assistance of post-conviction counsel, rather than trial
counsel. See id. at 10 (arguing that Sue III “is irrelevant in this habeas
proceeding”). Nevertheless, in Sue III, the CCA rightly deemed the two iterations
of Mr. Sue’s IAC claims inextricably linked, because the claims against post-
conviction counsel rested upon the manner in which they pursued the IAC claims
against trial counsel. See generally Pet’r’s App., Vol. 1, at 46–57. Indeed,
evaluating Strickland and the evidentiary record on trial counsel’s performance,
the CCA specifically concluded that trial counsel had not been ineffective—and
therefore determined that Mr. Sue’s IAC claims against post-conviction counsel
“necessarily” failed. Id. at 57. In other words, the CCA squarely addressed the
merits of the IAC claims that Mr. Sue raises in this federal proceeding, and we
must apply AEDPA deference to that analysis. See Ryder ex rel. Ryder v.
Warrior, 810 F.3d 724, 746 (10th Cir. 2016) (concluding that “when a state court
analyzes appellate counsel ineffectiveness as an excuse for procedural default, we
must afford AEDPA deference to that analysis”).

                                           18
      In other words, AEDPA erects a formidable and “highly deferential

standard for evaluating state-court rulings,” and “demands that state-court

decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19,

24 (2002) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

                                              III

      In his habeas petition, Mr. Sue advances two interconnected positions.

First, he argues that his trial counsel plainly violated his Sixth Amendment right

to effective assistance of counsel, as interpreted in Flores-Ortega, by failing to

file an appeal or to adequately advise him of his appellate options, despite his

“demonstrated . . . interest in appealing.” Pet’r’s Br. at 14–22. In the alternative,

he argues that the state court’s disposition of his IAC claim ran contrary to, or

involved an unreasonable application of, Flores-Ortega, and rested upon an

unreasonable determination of the facts. See id. at 26–33.

      In view of the highly deferential standard for evaluating state-court

dispositions, we deny his request for a COA and dismiss this matter.

                                         A

      We review Mr. Sue’s claim of ineffective assistance of counsel under the

well-known rubric of Strickland. See Byrd v. Workman, 645 F.3d 1159, 1167

(10th Cir. 2011). In other words, Mr. Sue “must show both that his counsel’s

performance ‘fell below an objective standard of reasonableness’ and that ‘the


                                         19
deficient performance prejudiced the defense.’” Id. at 1167 (emphasis omitted)

(quoting Strickland, 466 U.S. at 687–88). “These two prongs may be addressed in

any order, [but the] failure to satisfy either is dispositive.” Hooks, 689 F.3d at

1186.

        In this case, we focus—as the state court did—on the first Strickland

prong—viz., the performance inquiry. Our review of counsel’s performance under

the first prong of Strickland is a “highly deferential” one, Hooks, 689 F.3d at

1186 (citations omitted), and “we begin with a strong presumption that counsel

‘rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” Ryder, 810 F.3d at 741 (quoting Strickland,

466 U.S. at 690). Surmounting this obstacle proves, in any procedural setting,

“not an ‘easy task.’” Hooks, 689 F.3d at 1187 (citations omitted). A state

prisoner in the § 2254 context, however, faces an even greater challenge, because

our review becomes “doubly deferential.” Byrd, 645 F.3d at 1168 (quoting

Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). More specifically, “when

assessing a state prisoner’s ineffective-assistance-of-counsel claim[] on habeas

review, ‘[w]e defer to the state court’s determination that counsel’s performance

was not deficient and, further, defer to the attorney’s decision in how to best

represent a client.’” Hooks, 689 F.3d at 1187 (second alteration in original)

(citations omitted). In other words, the question becomes “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard[,]”

                                          20
not whether “counsel’s actions were reasonable.” Harrington v. Richter, 562 U.S.

86, 105 (2011). Given this heavily deferential standard, we discern nothing

unreasonable in the state court’s Strickland determination.

      In this case, the CCA in Sue III dispensed with Mr. Sue’s ineffectiveness

challenge on the grounds that Flores-Ortega concerned primarily, if not

exclusively, a situation in which a lawyer “disregards a specific instruction from

the defendant to file an appeal,” and because there existed some record support

for the notion that counsel “consulted with [Mr. Sue] and his family about their

[various] options” and that Mr. Sue never inquired into “the status of any appeal

following the sentencing hearing.” Pet’r’s App., Vol. 1, at 53–56. In finding that

trial counsel did not perform deficiently, the CCA made three critical factual

determinations. First, it credited testimony of Mr. Sue’s trial lawyers “that they

had no recollection of an instruction to file a direct appeal, and that had [Mr. Sue]

made such a request, they would have engaged separate appellate counsel for

him.” Id. at 54. In light of this evidence, the Sue III court reasoned that Mr. Sue

uttered at most an unclear request for an appeal. See id. Second, it found “record

support” for the conclusion that trial counsel did indeed consult with Mr. Sue and

his family about his post-conviction options. Id. at 54–55. Finally, it determined

that trial counsel made a reasoned strategic decision in pursuing a motion for

reduction of sentence, in lieu of other available post-conviction options—and

indeed, found “no basis to conclude that [trial] counsel’s decision to proceed with

                                         21
a Crim. P. 35(b) motion amounted to ineffective assistance of counsel.” Id. at

54–57.

      In reviewing the state court’s ultimate determination—viz., its conclusion

that trial counsel did not render ineffective assistance—we must credit these

factual findings, unless rebutted by clear and convincing evidence. See Hooks,

689 F.3d at 1164. Mr. Sue, however, has made no such showing. Rather, he

states his disagreement with these factual findings, but offers virtually no

evidence to substantiate his disagreement, much less any clear and convincing

evidence. See, e.g., Pet’r’s Br. at 31–33 (challenging the state court’s factual

findings, but pointing to virtually no evidence to buttress these challenges). Mr.

Sue points only to his own testimony, and argues little more than that the state

court made “unanchored” factual findings. Id. at 31. This line of argument alone,

however, falls far short of rebutting the presumptive correctness of the state

court’s factual findings. See 28 U.S.C. § 2254(e)(1) (“[A] determination of a

factual issue made by a State court shall be presumed to be correct. The applicant

shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.”); see also Smith, 824 F.3d at 1238 n.2 (concluding that

petitioner failed to rebut presumption favoring state court’s factual findings);

Byrns v. State of Utah, 166 F.3d 346 (10th Cir. 1998) (unpublished table decision)

(rejecting petitioner’s factual narrative, because he presented “no evidence to

rebut the state court’s factual findings”).

                                          22
      In view of these unrebutted facts, we can find nothing unreasonable in the

CCA’s conclusion that Flores-Ortega does not avail Mr. Sue. In Flores-Ortega,

the Supreme Court applied the Strickland rubric to a case involving counsel’s

failure to file a notice of appeal, and determined that “a lawyer who disregards

specific instructions from the defendant to file a notice of appeal acts in

a . . . professionally unreasonable” manner—i.e., renders deficient performance.

528 U.S. at 477. Nevertheless, the Supreme Court recognized that the deficiency

inquiry becomes somewhat more nuanced where, as the state court found here,

“the defendant has not clearly conveyed his wishes one way or the other.” Id.

      In addressing that issue, the Court determined that two paradigmatic

scenarios emerge. See id. at 478. If, on the one hand, “counsel has consulted

with the defendant, the question of deficient performance” becomes “easily

answered: [c]ounsel performs in a professionally unreasonable manner only by

failing to follow the defendant’s express instructions with respect to an appeal.”

Id. (citation omitted). If, however, there has been no consultation, “a

constitutionally imposed duty to consult with the defendant about an appeal”

arises in the face of “reason to think either (1) that a rational defendant would

want to appeal (for example, because there are nonfrivolous grounds for appeal),

or (2) that this particular defendant reasonably demonstrated to counsel that he

was interested in appeal.” Id. at 480.



                                          23
      In applying this decision to Mr. Sue’s IAC claim, the CCA concluded—as a

factual matter—that the record reflected no clear instruction to file an appeal and

credibly suggested that trial counsel did indeed consult with Mr. Sue. See R.,

Vol. I, at 54–55. In other words, the CCA found no factual basis—whether

through the failure of Mr. Sue’s trial lawyers to file an appeal or their

consultation with Mr. Sue—to conclude that his trial lawyers’ conduct ran afoul

of Flores-Ortega’s principles. We see nothing unreasonable in the CCA’s

interpretation and application of Flores-Ortega, particularly given Mr. Sue’s

failure to rebut the state court’s underlying factual findings.

      Against that backdrop, we conclude that the state court reasonably

concluded that trial counsel satisfied Strickland’s deferential standard.

Consequently, reasonable jurists could not debate the correctness of the district

court’s resolution of Mr. Sue’s § 2254 petition or conclude that there were any

issues raised therein that deserved encouragement to proceed further.

                                          IV

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

dismiss this matter.

                                                     Entered for the Court



                                                     JEROME A. HOLMES
                                                     Circuit Judge

                                          24
