                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                    November 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court

 ROBIN V. TALLY,

              Petitioner - Appellant,
                                                          No. 06-1523
       v.                                                   D. Colo.
 JOE ORTIZ, Director, Colorado                     (D.C. No. 06-cv-188-REB)
 Department of Corrections; RON
 LEYBA, Warden, San Carlos
 Correctional Facility, Pueblo,
 Colorado; JOHN SUTHERS, Attorney
 General, State of Colorado,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                       & DISMISSING APPEAL


Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Robin Tally filed a 28 U.S.C. § 2254 petition for a writ of habeas corpus.

The district court denied the petition as well as Tally’s request for a certificate of

appealability (COA). Tally renews his request for a COA here. See 28 U.S.C.
§ 2253(c)(1)(A). We deny a COA and dismiss this incipient appeal.

                                I. BACKGROUND

      Tally repeatedly shot a former co-worker on August 24, 1995. He initially

pled not guilty, but later changed his plea to not guilty by reason of insanity.

Pursuant to a court order, Tally entered the Colorado Mental Health Center on

December 14, 1995. He was discharged at the end of January 1996. Dr. David

Johnson, a certified forensic psychiatrist, concluded Tally suffered from a

“personality persecutorial type trait,” but was sane at the time of the shooting.

(R. Vol. V at 7.) Tally was committed a second time in February 1996 to

determine his competency to stand trial. In March, Dr. Johnson determined Tally

was not competent to stand trial due to the development of a delusional disorder.

The delusional disorder affected Tally’s interpretation of reality to the point he

was unwilling to accept the victim’s death. When attempts at counseling proved

unsuccessful, Dr. Johnson prescribed medication for the disorder but Tally

refused the medication.

      Tally became increasingly agitated and, on May 2, 1996, made threats to

the staff. As a result, he was administered psychotropic medication pursuant to

emergency protocol. The prosecution moved the court to continue the involuntary

medication beyond the ten-day emergency period. The court held a hearing on

May 13, 1996, to address Tally’s need for medication and the possible side

effects. Dr. Johnson testified Tally had “shown extremely dangerous behavior”

                                         -2-
and opined that if medication were to cease Tally would become increasingly

dangerous to others. (Id. at 20.) After a detailed discussion of the likelihood and

possible side effects of the medication, Dr. Johnson reiterated the administration

of anti-psychotic medication was necessary to prevent a significant and likely

long term deterioration in Tally’s medical condition and to prevent the likelihood

of Tally causing serious bodily injury to others at the institution. Finally, Dr.

Johnson averred the treatment was the least intrusive alternative and Tally’s need

for the medication was sufficiently compelling to override any legitimate interest

in refusing treatment. The court granted the prosecution’s motion, determining

continuing involuntary medication was the least intrusive means available to

prevent significant deterioration in Tally’s condition and to protect others.

      In August 1996, Dr. Johnson reported Tally had been restored to

competency, in large part due to the continuing involuntary medication.

Following a hearing, the court determined Tally was competent but ordered the

involuntary medication be continued. In October 1996, Tally moved to

discontinue the medication, claiming he could not be medicated against his will

after being found competent. The trial court denied the motion without a hearing,

adopting its findings from the May hearing that the medication was necessary to

maintain Tally’s competency and to protect others.

      Tally’s trial began on January 6, 1997. The jury found him guilty of first

degree murder and Tally was sentenced to life imprisonment without parole. The

                                          -3-
Colorado Court of Appeals affirmed his conviction. People v. Tally, 7 P.3d 172

(Colo. App. 1999) (Tally I), cert. denied sub nom., Tally v. Colorado, 535 U.S.

1082 (2002). Tally filed a motion in state district court to vacate his conviction

pursuant to Rule 35 of the Colorado Rules of Criminal Procedure. The district

court denied the motion without a hearing on June 17, 2003. Tally appealed to

the Colorado Court of Appeals which affirmed in an unpublished decision.

People v. Tally, No. 03CA1723, 2005 WL 1119765 (Colo. App. May 12, 2005).

The Colorado Supreme Court denied Tally’s subsequent petition for certiorari.

Tally v. People, No. 05SC583, 2006 WL 381421 (Colo. Jan 17, 2006).

       Thereafter, Tally filed a § 2254 petition in the United States District Court

for the District of Colorado asserting seven claims. The district court dismissed

the petition, concluding the rulings of the Colorado Court of Appeals on six of his

claims were not contrary to clearly established federal law and the remaining

claim was procedurally barred. Tally v. Ortiz, No. 06-cv-00188, 2006 WL

3201313 (D. Colo. 2006) (Tally II). The district court denied Tally’s request for a

COA.

                    II. CERTIFICATE OF APPEALABILITY

       A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 336 (2003). We will issue a COA only if Tally makes a

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

§ 2253(c)(2). To make this showing, he must establish that “reasonable jurists

                                          -4-
could debate whether . . . the petition should have been resolved [by the district

court] 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)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, Tally must demonstrate both that “jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Id. “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Id. We review the district court’s factual findings for clear error and its

legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         Tally wishes to present five issues on appeal, contending the trial court

erred in: (1) allowing the prosecution to use Tally’s silence during a sanity

examination as evidence of guilt in violation of his right to remain silent and his

right to due process; (2) foreclosing Tally’s right to cross-examine Dr. Johnson as

to the reason for Tally’s silence during the sanity examination; (3) failing to hold

an evidentiary hearing or make required findings prior to denying Tally’s request

to cease his involuntary medication; (4) determining Tally’s waiver of his right to

                                           -5-
testify was voluntary; and (5) concluding Tally’s challenge to the constitutionality

of Colorado’s competency provision was procedurally barred.

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

“work[ed] substantial changes” to the power of federal courts to grant habeas

corpus relief. Felker v. Turpin, 518 U.S. 651, 654 (1996). “AEDPA limited

rather than expanded the availability of habeas relief.” Fry v. Pliler, 127 S.Ct.

2321, 2327 (2007); 28 U.S.C. § 2254(d)(1). It allows a state court decision to be

set aside on federal habeas review only if it is “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” Fry, 127 S.Ct. at 2326. 1 The statute sets

forth preconditions, it is not “an entitlement.” Id. at 2327.

      “‘[C]learly established Federal law’ in § 2254(d)(1) refers to the ‘holdings,

as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant

state-court decision.’” Carey v. Musladin, 127 S.Ct. 649, 653 (2007) (quoting

Williams v. Taylor, 529 U.S. 362, 412 (2000)). To be “contrary to” clearly

established Federal law, the state court must apply “a rule that contradicts the

governing law set forth in [Supreme Court] cases” or “confront[] a set of facts

that are materially indistinguishable from a decision of [the] Court and


      1
        Tally’s counsel are to be complimented. They restricted their argument to
United States Supreme Court cases. It is a refreshing change from what is
unfortunately typical – citation to and argument based upon cases from inferior
federal courts, state courts and a host of other irrelevant authorities.

                                          -6-
nevertheless arrive[] at a result different from [Supreme Court] precedent.”

Williams, 529 U.S. at 405-06. When the court confronts facts that are merely

similar to those in a Supreme Court precedent, a different result is not contrary to

clearly established Federal law. See Lockyer v. Andrade, 538 U.S. 63, 74 (2003).

      “The unreasonable application clause of § 2254(d)(1) applies when 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.” Holland v. Jackson, 542 U.S. 649, 652 (2004) (quotations and citation

omitted). The state court’s application must be “objectively unreasonable,” and

will not be overturned because it is merely erroneous or incorrect. Lockyer, 538

U.S. at 75 (“The gloss of clear error fails to give proper deference to state courts

by conflating error (even clear error) with unreasonableness.”); see Bell v. Cone,

535 U.S. 685, 699 (2002). This standard represents “a substantially higher

threshold.” Schriro v. Landrigan, 127 S.Ct. 1933, 1939 (2007).

      Finally, § 2254(d) requires “state court decisions be given the benefit of

the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2003). “[R]eadiness to

attribute error is inconsistent with the presumption that state courts know and

follow the law.” Id. Indeed, we are required to “presume the correctness of state

courts’ factual findings unless applicants rebut this presumption with clear and

convincing evidence.” Schriro, 127 S.Ct. at 1940 (quotations omitted). With

these standards in mind, we address Tally’s claim.

                                          -7-
                                III. DISCUSSION

A.     Fifth Amendment Right to Remain Silent

       When Tally pled not guilty by reason of insanity, the trial court advised

him:

       A defendant who places his or her mental condition at issue by
       pleading not guilty by reason of insanity . . . waives any claim to
       confidentiality or privilege as to communications made by you to a
       physician or psychologist in the course of an examination . . . for the
       purpose of any trial or hearing on the issues of such mental
       condition. . . .

       You shall have the privilege against self incrimination during the
       course of an examination pursuant to this order. The fact that you
       are not cooperative with a psychiatrist or other personnel conducting
       the examination may be admissible in your trial on the issues of
       insanity or competency.

(R. Vol. III at 5.) 2



       2
        The advisement conforms with Colo. Stat. Ann. § 16-8-106(2)(b) which
provides:

      The defendant shall have a privilege against self-incrimination during
      the course of an examination under this section. The fact of the
      defendant’s noncooperation with psychiatrists and other personnel
      conducting the examination may be admissible in the defendant’s
      trial on the issues of insanity or competency and in any sentencing
      hearing . . . .
Colo. Stat. Ann. 16-8-107(1.5)(a) provides in relevant part:

       [E]vidence acquired directly or indirectly for the first time from a
       communication derived from the defendant’s mental processes during
       the course of a court-ordered examination . . . is admissible only as
       to the issues raised by the defendant’s plea of not guilty by reason of
       insanity, and the jury, at the request of either party, shall be so
       instructed; . . .

                                         -8-
      When Dr. Johnson evaluated Tally to determine his mental state at the time

of the crime, Tally remained silent on the advice of counsel. At trial, Dr. Johnson

testified as follows:

      Q:     Were you able to interview Mr. Tally for the issue of sanity?

      A:     No, I was not.

      Q:     And was that because he refused to talk with you?

      A:     Yes.

(R. Vol. XII at 762.) Dr. Johnson explained how he was able to form an opinion

despite Tally’s lack of communication:

      I actually have done other cases like this where the defendant has not
      wanted to talk to me about the incident or offense, or for whatever
      reason. Sometimes I feel like I can form an opinion anyway and
      sometimes I can’t. If I can’t form an opinion, I will just say that. I
      will just tell the Court . . . because the defendant wouldn’t talk to me,
      I’m not able to form an opinion within a reasonable degree of
      medical certainty. However, in this case, I feel I could form a
      reasonable opinion because I had such an abundance of other
      information.

(Id. at 763.) He stated he paid particularly close attention to the video tape

interview taken about an hour after Tally turned himself in. Tally claims the

admission of this testimony violated his right to remain silent and was contrary to

Wainwright v. Greenfield, 474 U.S. 284 (1986) and Doyle v. Ohio, 426 U.S. 610

(1976). The Colorado Court of Appeals rejected this argument because “[a]

defendant’s sanity is not an element of the offense. Hence, a defendant’s right

against self-incrimination is not implicated when testimony is admitted only for


                                          -9-
the purpose of establishing defendant’s sanity.” Tally I, 7 P.3d at 182. Moreover,

“[u]nlike in . . . Wainwright v. Greenfield, . . . in which the defendants had been

affirmatively assured that their silence could not be used against them, no such

advice was given defendant here. On the contrary, he was specifically informed

that if he refused to cooperate with the examining physician, such

non-cooperation could be referred to at his trial.” Id. The federal district court

determined the conclusions of the Colorado Court of Appeals were not contrary to

nor involve an unreasonable application of clearly established federal law. The

district court was correct.

      Tally concedes he was advised that his non-cooperation could be used at

trial. He contends he was not advised, however, that the exercise of his right

against self-incrimination could be considered the equivalent of non-cooperation.

While we question Tally’s rationale that failing to speak to the psychiatrist, for

whatever reason, could be considered cooperation, the fact remains his silence

was not used to overcome his insanity plea or establish his guilt. Therefore, this

case is distinguishable from Wainwright and the other Supreme Court cases cited

by Tally. See Wainwright, 474 U.S. 284, 292 (1986) (“it is fundamentally unfair

to promise an arrested person that his silence will not be used against him and

thereafter to breach that promise by using the silence to impeach his trial

testimony. It is equally unfair to breach that promise by using silence to

overcome a defendant's plea of insanity.”) The prosecutor’s questioning allowed

                                         -10-
Dr. Johnson to explain why he believed he could make a sanity determination

without being able to communicate with Tally. While Dr. Johnson made a

comparison between Tally’s initial silence and his later loquaciousness at the time

he was declared incompetent, he was referring to the difference in Tally’s

demeanor on the video tape and his later behavior, not Tally’s silence during the

interview.

      In addition, there is no Supreme Court case stating the admission of

statements made – or not made – in a mental evaluation violates the Fifth

Amendment. Indeed, the cases appear to indicate otherwise. For example, in

Buchanan v. Kentucky, the Court held the state’s use of a psychiatric report solely

to rebut defendant's “mental status” defense did not violate defendant's Fifth or

Sixth Amendment rights. 483 U.S. 402 (1987). The Court reasoned,“if a

defendant requests [a psychiatric] evaluation or presents psychiatric evidence,

then, at the very least, the prosecution may rebut this presentation with evidence

from the reports of an examination the defendant requested. The defendant would

have no Fifth Amendment privilege against the introduction of this psychiatric

testimony by the prosecution.” Id. at 422-23. In Estelle v. Smith, the Court

distinguished a judge-ordered competency exam used in sentencing without notice

of his right to remain silent from “sanity examination[s] occasioned by a

defendant’s plea of not guilty by reason of insanity.” 451 U.S. 454, 465 (1981).

The Court noted, “[w]hen a defendant asserts the insanity defense and introduces

                                        -11-
supporting psychiatric testimony, his silence may deprive the State of the only

effective means it has of controverting his proof on an issue that he interjected

into the case.” Id. Tally has not demonstrated the state court violated clearly

established federal law.

B.    Right to Present the Reason for Tally’s Silence

      Tally claims he was deprived of due process and his rights under the

Confrontation Clause when the trial court did not allow him to solicit from Dr.

Johnson or Dr. Atwell the reason he remained silent during the initial interview.

Tally cites, inter alia, Delaware v. Van Arsdall, 475 U.S. 673 (1986) and

Chambers v. Mississippi, 410 U.S. 284 (1973). The Colorado Court of Appeals

and the federal district court agreed the trial court did not err because the reason

for Tally’s silence was irrelevant. We agree as well.

       While trial judges “retain wide latitude” in determining the scope of

cross-examination, “a criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the part of the

witness, and thereby to expose to the jury the facts from which jurors . . . could

appropriately draw inferences relating to the reliability of the witness.” Van

Arsdall, 475 U.S. at 679, 680 (quotations and citation omitted). In Van Arsdall,

the trial court precluded any inquiry into the possible bias of a primary witness.

The Court concluded that “cutting off all questioning about an event . . . that a

                                         -12-
jury might reasonably have found furnished the witness a motive for favoring the

prosecution in his testimony, the court’s ruling violated respondent’s rights

secured by the Confrontation Clause.” Id. at 679. Similarly, in Chambers, the

defense was not allowed to present reliable evidence that a witness for the state

had orally and through a written confession (later rescinded), admitted guilt for

Chambers’ charged offense. The trial court refused to allow Chambers to cross-

examine the witness on credibility. The Court held that preventing Chambers

from presenting critical evidence “denied him a trial in accord with traditional

and fundamental standards of due process.” Chambers, 410 U.S. at 302.

      Tally’s attempt to equate evidence of counsel’s advice to remain silent with

the crucial credibility evidence in Van Arsdall and Chambers is a stretch and

ultimately unavailing. Neither Dr. Johnson nor Dr. Atwell testified that Tally’s

silence during Dr. Johnson’s first interview in any way affected their opinion as

to whether Tally was sane at the time of the offense. Moreover, Tally does not

suggest such cross-examination was needed to show bias or test the credibility of

either witness. Thus, the Colorado Court of Appeals’ determination was not

contrary to or an unreasonable application of clearly established federal law.

C.    Involuntary Medication

      Tally claims the trial court violated his right to due process as established

in Riggins v. Nevada, 504 U.S. 127 (1992), when it denied his motion to rescind

the order for involuntary medication without a hearing. The Colorado Court of

                                         -13-
Appeals rejected this claim, noting the “administration of the drug was

specifically found to be required to prevent defendant from seriously harming

himself or others and to prevent a further deterioration in his mental condition.

And, those justifications remained valid even after the court determined that the

drug had had the additional effect of restoring defendant to a [competent] mental

state . . . .” Tally I, 7 P.3d at 176-77. The appellate court recognized the

importance of Tally’s physical impression to the jury and the probability that it

would be altered by the medication. However, it concluded the jurors were given

substantial evidence of Tally’s “mental state at or about the time of the killing

and how the antipsychotic drug worked upon him to change that mental state.”

Id. at 177. The federal district court agreed, noting: “Except for the effect of the

medication on Tally [restoration of competency], nothing in the record indicates

that any of the bases for the trial court’s May, 1996, order had changed

significantly as of November, 1996.” Tally, 2006 WL 3201313 at *6.

      Tally argues the trial court’s reliance on the May evidentiary hearing was

erroneous and, once Tally requested another evidentiary hearing, the court was

required to make specific findings of fact as to the effect of the drugs on Tally’s

demeanor at trial and his ability to assist in his own defense. Further, Tally

contends the facts in this case are materially indistinguishable from Riggins. We

disagree.

      The Supreme court stated, “[t]he question whether a competent criminal

                                         -14-
defendant may refuse antipsychotic medication if cessation of medication would

render him incompetent at trial is not before us.” Riggins, 504 U.S. at 136.

These are precisely the facts here. Indeed, the holding in Riggins is that due

process is satisfied “if the prosecution had demonstrated, and the District Court

had found, that treatment with antipsychotic medication was medically

appropriate and, considering less intrusive alternatives, essential for the sake of

Riggins' own safety or the safety of others.” Id. at 135. Moreover, in Sell v.

United States, the Court expanded on the Riggins holding and concluded “the

Constitution permits the Government involuntarily to administer antipsychotic

drugs to a mentally ill defendant facing serious criminal charges in order to

render that defendant competent to stand trial, but only if the treatment is

medically appropriate, is substantially unlikely to have side effects that may

undermine the fairness of the trial, and, taking account of less intrusive

alternatives, is necessary significantly to further important governmental

trial-related interests.” 539 U.S. 166, 179 (2003).

       The trial court’s evidentiary hearing in May specifically addressed the

factors required by the Supreme Court in Riggins and Sell. Tally does not submit

any evidence rebutting the state district court’s conclusions that the medication

was necessary for the safety of others and to maintain his competency. He does

not claim the medication was not medically appropriate, nor has he submitted

evidence the medication prevented his involvement in his defense. In fact,

                                         -15-
counsel conceded if Tally were not medicated he would not be competent. Thus,

the facts here are distinguishable from those in Riggins and Sells. Further, neither

Riggins nor Sells requires the court to hold a second evidentiary hearing without

some showing of changed circumstances. Consequently, the Colorado Court of

Appeals’ decision was not contrary to the Supreme Court’s clearly established

law.

D.     Voluntary Waiver

       During trial, out of the presence of the jury, the court fully advised Tally of

his right to testify at trial. Tally stated he understood, and had made “a free and

voluntary choice” not to testify. (Vol. XII at 918.) However, three days later,

Tally stated his decision was not “altogether a voluntary one,” claiming he might

have made a different decision if he were not being medicated because his

medication prevented him from undergoing direct and cross-examination. (Id. at

920.) Tally claims the trial court erred in concluding his waiver was voluntary.

He argues the Colorado Court of Appeals’ decision to the contrary violates clearly

established law as stated in, inter alia, Godinez v. Moran, 509 U.S. 389 (1993),

and Brooks v. Tennessee, 406 U.S. 605, 613 (1972).

       In Godinez, the Supreme Court stated, “[t]he focus of a competency inquiry

is the defendant’s mental capacity; the question is whether he has the ability to

understand the proceedings. The purpose of the ‘knowing and voluntary’ inquiry,

by contrast, is to determine whether the defendant actually does understand the

                                          -16-
significance and consequences of a particular decision and whether the decision is

uncoerced.” 509 U.S. at 401 n.12 (citation omitted). Contrary to Tally’s

assertion, the Colorado Court of Appeals considered both components referenced

in Godinez. First, it addressed Tally’s “competency” to voluntarily waive his

right to testify stating “nothing beyond his ambiguous statement gave any

indication that [Tally’s] mental condition had deteriorated since the trial court’s

prior determination that he was competent.” Tally I, 7 P.3d at 179. The appellate

court next considered whether Tally actually understood the significance and

consequences of his decision:

      [T]he very nature of [the] statement suggested that [Tally] was fully
      capable of understanding the proceeding and acting intelligently with
      respect to the advisement he had been given. [Tally’s] recognition
      that, if he had not been on medication, his reaction to the Curtis
      advisement might have been different did not suggest, in any way,
      that he was not then competent.

Id. The Colorado court’s application of the law was not objectively unreasonable

or contrary to Supreme Court holdings.

E.    Procedural Bar

      Tally maintains the federal district court erred in concluding his due

process challenge to Colorado’s statutory competency provision was procedurally

barred. He claims the Colorado Court of Appeals refused to reach this issue in

his second appeal because the issue had been decided in his first appeal.

      “The procedural default doctrine and its attendant ‘cause and prejudice’



                                         -17-
standard are grounded in concerns of comity and federalism, and apply alike

whether the default in question occurred at trial, on appeal, or on state collateral

attack, . . .” Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (citations and

quotations omitted). Tally is required to “demonstrate cause for his state-court

default of any federal claim, and prejudice therefrom, before the federal habeas

court will consider the merits of that claim.” 3 Id.

      In People v. Tally, 03CA1723 (May 12, 2005) (unpublished), the Colorado

Court of Appeals determined “the issue of [Tally’s] competency was fully and

finally litigated in the trial court and on direct appeal. Although [Tally] asserted

a different legal argument in his post-conviction motion, specifically, that the

competency standard was unconstitutional, it was based on the same underlying

issue, whether [Tally] was competent to stand trial.” (Petitioner’s Appx. at 24-

25.) The court concluded Tally was “precluded from further raising the issue of




      3
         There is one exception to that rule, “the circumstance in which the habeas
petitioner can demonstrate a sufficient probability that our failure to review his
federal claim will result in a fundamental miscarriage of justice.” Edwards, 529
U.S. at 451. However, the Supreme Court has recognized this narrow exception
in cases “where a constitutional violation has probably resulted in the conviction
of one who is actually innocent of the substantive offense” and in death penalty
cases where “the applicant could show by clear and convincing evidence that, but
for a constitutional error, no reasonable juror would have found the petitioner
eligible for the death penalty under the applicable state law.” Dretke v. Haley,
541 U.S. 386, 393 (2004) (citations and quotations omitted). Neither situation
exists here.


                                          -18-
his mental competency in a Crim. P. 35 proceeding.” 4 Id. In essence, the

Colorado Court of Appeals concluded the factual basis for the constitutional claim

was resolved and his legal argument was not specifically raised in prior

proceedings. Because Tally has not presented cause for his failure to raise the

constitutionality of the statute below, the remainder of Tally’s argument is

procedurally barred.

      The district court’s order of dismissal is not “reasonably debatable.” Slack,

529 U.S. at 484. Tally has failed to make a sufficient showing that he is entitled

to a COA. His request for a COA is DENIED and the nascent appeal is

DISMISSED.

                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge




      4
         Rule 35(c) states in relevant part: “The court shall deny any claim that
was raised and resolved in a prior appeal or postconviction proceeding on behalf
of the same defendant, . . . The court shall deny any claim that could have been
presented in an appeal previously brought or postconviction proceeding
previously brought . . .” Colo. R. Crim. P. 35(c)(vi) & (vii).


                                        -19-
