                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                          February 15, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
TONEY L. BROWN,

      Petitioner - Appellant,

v.                                                           No. 17-1206
                                                   (D.C. No. 1:14-CV-02218-WJM)
DAVID ZUPAN; CYNTHIA H.                                       (D. Colo.)
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
                  _________________________________

      Toney L. Brown, a Colorado state prisoner proceeding pro se,1 seeks a

certificate of appealability (COA) to appeal the district court’s denial of his

application for relief under 28 U.S.C. § 2254. Exercising jurisdiction under

28 U.S.C. §§ 1291 and 2253(a), we deny a COA and dismiss this matter.

      Mr. Brown was convicted of aggravated robbery, first degree criminal

trespass, two counts of third degree assault, false imprisonment, and two habitual

criminal counts. People v. Brown, (Colo. App. No. 03CA0316, May 24, 2007)

      *
         This order is not binding precedent except under the doctrines of law of the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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Because Mr. Brown is proceeding pro se, we construe his filings liberally.
See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
(unpublished). After seeking postconviction relief in state court, Mr. Brown filed his

§ 2254 application asserting eight claims for relief: his Sixth and Fourteenth

Amendment rights were violated because his trial counsel was ineffective (Claim

One); his Sixth Amendment rights were violated because his first public defender

was ineffective (Claim Two); his Sixth and Fourteenth Amendment rights were

violated because his trial counsel had a conflict of interest (Claim Three); his Fourth

Amendment rights were violated because the police improperly attempted to detain

him and seized evidence from his vehicle (Claim Four); his Fifth Amendment rights

were violated because a police officer improperly identified him (Claim Five); his

Sixth and Fourteenth Amendment rights were violated because the prosecution failed

to preserve relevant 911 recordings (Claim Six); his Sixth and Fourteenth

Amendment rights were violated because his appellate counsel was permitted to

withdraw and his retained counsel provided ineffective assistance by failing to raise

issues related to his trial counsel’s ineffectiveness (Claim Seven); and his Sixth and

Fourteenth Amendment rights were violated because certain exculpatory evidence

was not presented at his trial (Claim Eight).

      The district court dismissed all but the second and third claims as procedurally

defaulted because Mr. Brown failed to exhaust them in state court, where they would

now be barred. On Claim Two, the court determined that the performance of

Mr. Brown’s first public defender was not deficient under Strickland v. Washington,

466 U.S. 668, 688 (1984). On Claim Three, the court concluded that the Colorado

Court of Appeals (CCA) did not unreasonably apply clearly established federal law

                                           2
when it determined Mr. Brown’s trial counsel did not have a conflict of interest. In

addition, the court declined to excuse Mr. Brown’s procedural default of Claim Eight

based on arguments of his actual innocence. The court denied a COA.

      Mr. Brown must obtain a COA to appeal the district court’s denial of § 2254

relief. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). A COA may issue “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner

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

the constitutional claim[] debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). When a court dismisses a § 2254 application on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and whether the

court’s procedural ruling was correct. Id. at 484-85. In reviewing a § 2254

application, “[w]e presume that the factual findings of the state court are correct”

unless the petitioner presents clear and convincing evidence to the contrary.

Fairchild v. Workman, 579 F.3d 1134, 1137 (10th Cir. 2009).

Claim One

      The district court determined that although Mr. Brown challenged his trial

counsel’s effectiveness in two postconviction motions, he did not pursue this claim in

his appeals of those postconviction challenges, and therefore the claim, which had

several subparts, was procedurally defaulted. Generally, a prisoner is barred from

obtaining federal habeas review of a claim that he failed to exhaust in state court.

                                           3
See Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, in Martinez v. Ryan,

566 U.S. 1, 9 (2012), the Supreme Court recognized a narrow exception to the

Coleman rule: “Inadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” For the Martinez exception to apply, Mr. Brown must

show that his first postconviction counsel was ineffective under the standards of

Strickland, and he “must also demonstrate that the underlying ineffective-assistance-

of-trial-counsel claim is a substantial one, which is to say that [he] must demonstrate

that the claim has some merit.” Martinez, 566 U.S. at 14.

      Mr. Brown has not shown that his underlying claim against his trial counsel is

substantial.2 “[A]ctual ineffectiveness claims alleging a deficiency in attorney

performance are subject to a general requirement that the defendant affirmatively

prove prejudice.” Strickland, 466 U.S. at 693. To show prejudice, Mr. Brown “must

show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Id. at 694. He argues

that his trial counsel failed to seek suppression of certain physical and identification

evidence, present expert testimony on issues not directly related to his guilt, and

present other testimony that would controvert minor details from his case, but he has

not shown a reasonable probability that the outcome of his trial would have been

different had these strategies been pursued. See id. at 693 (“It is not enough for the

      2
         We may deny COA on a ground that is supported by the record even if it was
not relied on by the district court. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir.
2005).
                                            4
defendant to show that the errors had some conceivable effect on the outcome of the

proceeding.”). Because Mr. Brown has not demonstrated cause for his procedural

default, reasonable jurists could not debate the district court’s dismissal of this claim.

       To the extent Mr. Brown argues that his postconviction appellate counsel were

ineffective for failing to raise issues related to his trial counsel’s effectiveness, their

alleged ineffectiveness cannot be cause for a procedural default because “[t]here is no

constitutional right to an attorney in state post-conviction proceedings.” Coleman,

501 U.S. at 752. The limited exception to Coleman recognized in Martinez, 566 U.S.

at 14, and Trevino v. Thaler, 569 U.S. 413 (2013), does not apply here. See

Middlebrooks v. Carpenter, 843 F.3d 1127, 1136 (6th Cir. 2016) (“[T]he

Martinez-Trevino exception does not apply to save procedural defaults that occur in

appeals from initial-review collateral proceedings.” (internal quotation marks

omitted)). As a result, reasonable jurists could not debate the reasonableness of the

district court’s procedural ruling on this claim.

Claim Two

       Mr. Brown’s first public defender represented him for about three weeks from

shortly after his arrest until the state court granted the public defender’s motion to

withdraw at a preliminary hearing. Mr. Brown argues that the public defender was

ineffective because he did not take appropriate steps to preserve 911 recordings that

were relevant to Mr. Brown’s defense.

       Because the CCA did not decide this claim on the merits and it was not

otherwise procedurally barred, the district court reviewed it de novo. See Gipson v.

                                             5
Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004). “For federal habeas claims not

adjudicated on the merits in state-court proceedings, we exercise our independent

judgment and review the federal district court’s conclusions of law de novo.” Hooks

v. Workman, 689 F.3d 1148, 1163-64 (10th Cir. 2012) (internal quotation marks

omitted). Of course, at the COA stage, we review the district court’s dispositive

ruling solely for debatability, as explained above. See Buck v. Davis, 137 S. Ct. 759,

773 (2017) (“The COA inquiry . . . is not coextensive with a merits analysis.”).

       “To demonstrate ineffective assistance of counsel a petitioner must establish

both (1) that his counsel’s performance fell below an objective standard of

reasonableness, and (2) that there is a reasonable probability that, but for counsel’s

unreasonable errors, the outcome of his appeal would have been different.” Ellis v.

Hargett, 302 F.3d 1182, 1186 (10th Cir. 2002) (citing Strickland, 466 U.S. at 688,

694). In applying the first prong of Strickland, “‘[e]very effort must be made to

evaluate the conduct from counsel’s perspective at the time,” and “counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions in

the exercise of reasonable professional judgment.” Hooks, 689 F.3d at 1186-87

(internal quotation marks omitted). With respect to the second prong, a petitioner

must demonstrate “more than some conceivable effect on the outcome of the

proceeding.” Id. at 1187 (“Reasonable probability is more than mere

speculation . . . .”).

       The district court concluded that it was not unreasonable for the public

defender not to have preserved the 911 recordings before his representation of

                                           6
Mr. Brown ended and that Mr. Brown’s subsequent inability to obtain the recordings

could not be imputed to the public defender. Therefore, the court determined that

Mr. Brown did not present evidence that would overcome the presumption of

reasonableness with respect to the public defender’s performance. The court also

concluded that Mr. Brown had not satisfied his burden of showing that he was

prejudiced by the absence of the recordings at trial because his assertion as to the

value of the recordings was speculative. The court’s conclusion that Mr. Brown is

unable to prevail on either prong of the Strickland test is not debatable.

Claim Three

      The CCA reversed the judgment of conviction from Mr. Brown’s first trial and

remanded the case for a new trial. See People v. Brown, (Colo. App. No. 95CA0177,

Mar. 6, 1997) (unpublished). At his second trial, Mr. Brown was represented by

counsel who had previously supervised his first public defender and another public

defender who represented one of the prosecution’s witnesses. Mr. Brown argues that

these connections created a conflict of interest. But the CCA determined that

Mr. Brown’s trial counsel left the public defender’s office more than four years

before he represented Mr. Brown and also before the office represented the

prosecution witness. Mr. Brown has not presented clear and convincing evidence to

rebut these findings or to support his contentions that a conflict of interest adversely

affected his trial counsel’s performance and that there was collusion among members

of the office. The district court’s ruling that the CCA did not unreasonably apply

clearly established federal law when it rejected this claim is not debatable.

                                            7
Claims Four through Six

      The district court determined that these claims were procedurally defaulted

because Mr. Brown could have raised them in his direct appeal but did not. As with

Claim One, Mr. Brown contends that he can establish cause for failing to raise these

claims because his postconviction appellate counsel was ineffective. However, as

discussed above, there is no constitutional right to an attorney in state postconviction

proceedings under Coleman, and Mr. Brown has not shown that an exception to

Coleman applies here, see Middlebrooks, 843 F.3d at 1136. Therefore, reasonable

jurists could not debate the correctness of the district court’s dismissal of these

claims.

Claim Seven

      The district court ruled that Mr. Brown failed to assert cause for procedurally

defaulting on his claim against his appellate counsel and his retained counsel. In his

filings before this court, Mr. Brown addresses this ruling in only a cursory manner;

he has not demonstrated that reasonable jurists could debate whether this claim

should have been resolved differently or that any issues related to this claim deserve

encouragement to proceed further. See LeFevers v. Gibson, 182 F.3d 705, 725 (10th

Cir. 1999) (“[I]ssues adverted to in a perfunctory manner and without developed

argumentation are deemed waived on appeal.”).

Claim Eight

      In addition to finding Claim Eight procedurally defaulted, the district court

concluded that Mr. Brown failed to make a showing of actual innocence to establish a

                                            8
fundamental miscarriage of justice that would excuse the default. See Schlup v. Delo,

513 U.S. 298, 324 (1995) (requiring that innocence be supported by “new reliable

evidence . . . that was not presented at trial”). Mr. Brown points to various types and

pieces of evidence—including DNA, shoe print, hair fiber, saliva, and testimony—

that he argues support his contention that someone else committed the robbery.

However, none of this evidence “affirmatively demonstrates his innocence,” Phillips

v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999). Therefore, reasonable jurists would

not debate the district court’s conclusion that it falls short of demonstrating “it is

more likely than not that no reasonable juror would have convicted him in the light of

the new evidence,” Schlup, 513 U.S. at 327.

       Accordingly, we deny Mr. Brown’s request for a COA and his motion to

proceed in forma pauperis and dismiss the appeal.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




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