                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 24, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT


 ANTHONY J. LUCERO,

       Petitioner - Appellant,
                                                          No. 13-1300
 v.                                               (D.C. No. 12-CV-01919-RM)
                                                           (D. Colo.)
 ANGEL MEDINA, Warden; JOHN W.
 SUTHERS, The Attorney General of
 the State of Colorado,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HOLMES, and MATHESON, Circuit Judges.


      Petitioner-Appellant Anthony Lucero, a Colorado state inmate proceeding

pro se, seeks to appeal from the district court’s denial of his petition for writ of

habeas corpus. 28 U.S.C. § 2254; Lucero v. Medina, 2013 WL 2338478 (D. Colo.

May 29, 2013); reconsideration denied, 2013 WL 3010826 (D. Colo. June 17,

2013). We deny a certificate of appealability (“COA”) and dismiss the appeal.



                                     Background

      In 1987, Mr. Lucero was convicted by a jury and sentenced to life in prison

for felony murder, attempted aggravated robbery, and two counts of crime of
violence arising from a failed bank robbery that resulted in the killing of an off-

duty police officer working as a bank security guard. R. 193, 438. The Colorado

Court of Appeals vacated the attempted aggravated robbery conviction and one

count of crime of violence but affirmed Mr. Lucero’s remaining convictions. See

People v. Lucero, No. 87CA1261 (Colo. App. May 16, 1991), R. 437-49; see also

People v. Lucero No. 91SC456 (Colo. May 11, 1992), R. 401-02. Mr. Lucero

then sought post-conviction relief in state court, which was denied. R. 379; see

People v. Lucero, No. 08CA1973, 2011 WL 3505422 (Colo. App. Aug. 11, 2011)

cert. denied, No. 11SC851, 2012 WL 2394388 (Colo. June 25, 2012).

      In his federal habeas petition, Mr. Lucero raised seven claims for relief, all

of which the district court denied either on the merits, as procedurally defaulted,

or because they were not cognizable federal habeas claims. R. 8-9, 563-82, 701-

35. He renews three of the claims in his opening brief and request for a COA: (1)

competency to stand trial, (2) ineffective assistance of counsel, and (3) the failure

to appoint counsel and provide free transcripts in order to pursue an evidentiary

hearing on his competency and ineffective assistance of counsel claims.



                                     Discussion

      In order for this court to grant a COA, Mr. Lucero must make “a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that

“reasonable jurists could debate whether (or, for that matter, agree that) the

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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 and citation

omitted). Where the district court rejected Mr. Lucero’s claims on the merits, he

must demonstrate that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Id.

      Like the district court, we must 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); accord Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (recognizing the “highly

deferential” standard of review to state-court determinations under § 2254). State

court findings of fact are presumed correct, absent clear and convincing evidence

otherwise. 28 U.S.C. § 2254(e)(1).

      Having carefully reviewed Mr. Lucero’s three claims, the district court’s

analysis, and the record, we are persuaded that the district court’s resolution is

not reasonably debatable, given the appropriate level of deference for state court

factual findings and legal resolution of federal claims. See Lucero, 2013 WL

2338478 at *6-*12. The state appellate court concluded that a competency

hearing was not required because an earlier psychiatric evaluation determined he

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was competent to stand trial, despite suffering from schizophrenia; Mr. Lucero

was not tried while incompetent; and Mr. Lucero could not show deficient

performance of counsel or prejudice on competency. See Dusky v. United States,

362 U.S. 402, 402 (1960); see also Miles v. Dorsey, 61 F.3d 1459, 1472-73 (10th

Cir. 1995); R. 198-200, 205-14, 200-205. In addition, counsel’s decision not to

further investigate and pursue Mr. Lucero’s mental health was reasonable under

the circumstances. See Strickland v. Washington, 466 U.S. 688, 691 (1984); R.

201-02. Finally, the district court properly resolved these two claims based on a

review of the existing record, making an evidentiary hearing unnecessary.

      Accordingly, we DENY a COA and DISMISS the appeal.

      We GRANT the motion for Mr. Lucero to proceed in forma pauperis.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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