                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                November 22, 2011
                                    TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 NATHAN DUNLAP,

          Petitioner - Appellant,
                                                        No. 10-1422
 v.                                              (D.C. No. 06-cv-00611-JLK)
                                                         (D. Colo.)
 TOM CLEMENTS, Executive
 Director, Colorado Department of
 Corrections,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


      In 1995, Petitioner-Appellant Nathan Dunlap was convicted of two counts

of second-degree kidnapping, aggravated robbery, and theft relating to a 1993

armed robbery at a Burger King restaurant. He was sentenced to 75 years

imprisonment. This conviction was later used as a statutory aggravator in the

penalty phase of Mr. Dunlap’s trial involving the murders of four people at a

Chuck E. Cheese restaurant. See Dunlap v. Zavaras, No. 08-cv-0256, 2010 WL



      *
        This order and judgment is not binding precedent, except under the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.
3341533 (D. Colo. Aug. 24, 2010), appeal pending, No. 10-1424 (10th Cir.

docketed Sept. 14, 2010). The district court denied Mr. Dunlap’s habeas petition

in connection with the Burger King armed robbery. 28 U.S.C. § 2254; Dunlap v.

Zavaras, No. 06-cv-611-JLK, 2010 WL 3328508 (D. Colo. Aug. 24, 2010). Both

parties recognize that this appeal turns on the deference paid the state courts’

resolution of the issues. 28 U.S.C. § 2254(d).

      On appeal, Mr. Dunlap argues that the state court erred in (1) rejecting his

motion for a change of venue because the pretrial publicity about the Chuck E.

Cheese case presumptively or actually prejudiced his ability to obtain a fair trial,

and (2) rejecting his claim that the prosecution’s closing argument constituted

improper vouching which rendered his trial fundamentally unfair. Aplt. Br. 3.

Concerning the first issue, although our order granting a certificate of

appealability (“COA”) can be read to encompass only a pretrial publicity claim

based upon actual prejudice, it is not entirely clear. Therefore, in an abundance

of caution, we read it as encompassing both a presumptive and actual prejudice

claim. 28 U.S.C. § 2253(c); Dunlap v. Clements, No. 10-1422 (10th Cir. Jan. 25,

2011) (case management order). Our jurisdiction arises under 28 U.S.C. §§ 1291

and 2253(a). After carefully considering the arguments, we affirm.

      The parties are familiar with the facts and procedural history of this case so

we need not restate either here. See Dunlap v. Zavaras, 2010 WL 3328508, at *1.

On direct appeal, the Colorado Court of Appeals rejected Mr. Dunlap’s claim that

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the trial court erred by denying his motion to change venue because of prejudicial

pre-trial publicity and the Colorado Supreme Court denied certiorari. People v.

Dunlap, No. 95CR605, (Colo. App. Feb. 5, 1998); 2 (pt. 1) R. 152-58, cert.

denied, No. 98SC221 (Colo. Oct. 19, 1998); 2 (pt. 1) R. 180. On post-conviction

appeal, the Colorado Court of Appeals also rejected the claim that the prosecution

improperly vouched for the prosecution witnesses, deciding that the prosecution’s

characterization of the investigators as experienced and professional was a

permissible inference concerning witness credibility based on the evidence.

People v. Dunlap, 124 P.3d 780, 809-810 (Colo. App. 2004). The Colorado Court

of Appeals also decided that the prosecutor’s statements that investigators tell the

truth and know when someone is lying to them did not constitute plain error given

the relevance of how the witness testimony was procured and the defense theory

of improper pressure on the witness. Id.

      Our review of the district court’s decision is de novo. Welch v. Workman,

639 F.3d 980, 991 (10th Cir. 2011). 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). Section 2254(d) contains difficult

standards to satisfy—a defendant must show that a state court’s ruling is “so

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lacking in justification that there was an error well understood and comprehended

in existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter, 131 S. Ct. 770, 786-87 (2011).

      Factual findings made by state courts are presumed correct unless the

presumption is rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). The more general the rule applied by state courts, the greater range

of outcomes that are permissible given differing facts. Renico v. Lett, 130 S. Ct.

1855, 1864 (2010).

      Our review of the record persuades us that the state courts’ resolution of

Mr. Dunlap’s claims was not “diametrically different” or “mutually opposed” to

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529

U.S. 362, 405-06, 412-13 (2000). Nor did the Colorado courts apply the Supreme

Court’s rules to materially indistinguishable facts and reach a different result. Id.

Finally, no unreasonable determination of the facts pertinent to each claim

occurred. 28 U.S.C. § 2254(d)(2).



                                 I. Pretrial Publicity

      Mr. Dunlap claims that the Colorado Court of Appeals unreasonably

concluded that pretrial publicity about the Chuck E. Cheese murder case neither

presumptively nor actually prejudiced his right to a fair trial in the Burger King

case. Aplt. Br. 13-50. A defendant may establish prejudice by showing either (1)

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pretrial publicity was so pervasive and prejudicial that it created a presumption of

an unfair trial (presumptive prejudice), see Sheppard v. Maxwell, 384 U.S. 333

(1966), or (2) pretrial publicity actually prejudiced the empaneled jury against the

defendant (actual prejudice), see Irvin v. Dowd, 366 U.S. 717 (1961).

A.    Presumptive Prejudice

      Mr. Dunlap argues that the media coverage of the Chuck E. Cheese murders

in the locale of the Burger King trial presumptively prejudiced the jury pool

against him, violating his right to a fair trial. Aplt. Br. 35-44. He maintains that

the Colorado Court of Appeals unreasonably rejected this claim when it found

that most of the publicity pertained to the Chuck E. Cheese case and no opinion

poll had been conducted relating to the Burger King case. The district court held

that the Colorado Court of Appeals had considered all of the publicity in the

record and that neither the pretrial publicity relied upon by Mr. Dunlap nor the

polling data suggested an unreasonable application of federal law by the state

court. Dunlap v. Zavaras, 2010 WL 3328508, at *5.

      In Skilling v. United States, the Supreme Court explained that “[a]

presumption of prejudice . . . attends only the extreme case.” 130 S. Ct. 2896,

2915 (2010). These extreme cases include the televised broadcast of a

defendant’s taped confession to a bank robbery and murder in a small Louisiana

town, see Rideau v. Louisiana, 373 U.S. 723 (1963), excessive exposure during

preliminary court proceedings that “bombarded . . . the community with sights

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and sounds” of the pretrial hearing while media overran the courtroom, see Estes

v. Texas, 381 U.S. 532 (1965), and a case in which the media created a pervasive

“carnival atmosphere” in the courthouse during the trial of a man accused of

bludgeoning his pregnant wife to death, see Sheppard, 384 U.S. at 358. At the

same time, the Court has recognized that given the free flow of information in the

media, jurors may glean information about a defendant. Thus, in Murphy v.

Florida, the Court found that Estes and Sheppard “cannot be made to stand for the

proposition that juror exposure to information about a state defendant’s prior

convictions . . . presumptively deprives the defendant of due process.” 421 U.S.

794, 799 (1975); see also Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994)

(“There is nothing in the record to suggest that this publicity was anything other

than factual reporting. There is no suggestion of a circus atmosphere or lynch

mob mentality, or that a suppressed confession was broadcasted, or of any other

community-wide rush to judgment that infected other trials that have been set

aside for lack of an impartial jury.”).

      While we agree with Mr. Dunlap that the offending publicity may extend

beyond the specific crime for which the defendant is on trial, we cannot agree that

the factors suggested in Skilling for analyzing presumptive prejudice must all be

applied here. 1 Aplt. Br. 40. The relevant inquiry is whether the state court

      1
        In Skilling, the court pointed to four factors that courts have traditionally
considered when making a determination of presumptive prejudice. 130 S. Ct. at
2915-16. These factors include the size and characteristics of the community

                                          -6-
applied the relevant Supreme Court precedent at the time of its decision. Lockyer

v. Andrade, 538 U.S. 63, 71-72 (2003). Moreover, allowing the introduction of

new evidence before the federal habeas court is inconsistent with the principle

that our review is on the state court record. See Cullen v. Pinholster, 131 S. Ct.

1388, 1399 (2011).

      Having reviewed the media coverage, we agree with the district court that

the state court’s decision was not an unreasonable application of clearly

established federal law. See Dunlap v. Zavaras, 2010 WL 3328508, at *5. More

than “knowledge in the community of either the crimes or the putative criminal”

is necessary to establish presumptive prejudice. See Dobbert v. Florida, 432 U.S.

282, 303 (1977). The coverage here is a mixed bag. Certain newspaper articles

reported on earlier plea negotiations (an offer to plead guilty in the Chuck E.

Cheese case for a life sentence), on an alleged confession, and on a threat to a

witness. But the bulk of the coverage was objective and descriptive—some

critical of the prosecution—rather than inflammatory. In fact, “[i]n order for the

reviewing court to reach a presumption that inflammatory pretrial publicity so

permeated the community as to render impossible the seating of an impartial jury,

the court must find that the publicity in essence displaced the judicial process . . .

.” See United States v. McVeigh, 153 F.3d 1166, 1181 (10th Cir. 1998). The



where the crime occurred, the nature of the publicity surrounding the case, the
elapsed time between the crime and the trial, and outcome of the case. Id.

                                          -7-
Colorado Court of Appeals certainly could come to the reasonable conclusion that

such a displacement was lacking here.

B.    Actual Prejudice

      Mr. Dunlap also argues that the Colorado Court of Appeals unreasonably

rejected his claim of actual prejudice by relying mainly on the empaneled jury’s

assurances that they had no opinion about his guilt in either case. Aplt. Br. 13-

14; 44-50. The Colorado Court of Appeals considered Mr. Dunlap’s statistics

indicating that 92% of the 104 prospective jurors were familiar with him from

media coverage, 41% expressed an opinion that he was guilty of the Chuck E.

Cheese homicide, and 14% felt he was guilty of the robbery in this case. Dunlap

v. Zavaras, 2010 WL 3328508, at *5, n.5. Mr. Dunlap relies upon the fact that

two of the jurors were aware that the prosecution planned for the Burger King

case be tried first. Aplt. Reply Br. at 17. He argues that his case is analogous to

the one case in which the Supreme Court found actual prejudice: Irvin v. Dowd.

366 U.S. 717 (1961). The district court determined that the Colorado Court of

Appeals’s resolution of this issue, focusing upon the careful procedures employed

to ensure an impartial jury and actual juror responses, conformed with federal

law. Dunlap v. Zavaras, 2010 WL 3328508, at *6.

      In Irvin, almost 90% of 370 prospective jurors expressed an opinion that

the accused was guilty of the murders charged—a “pattern of deep and bitter

prejudice” in the community. Id. at 727. Further, eight of the twelve empaneled

                                         -8-
jurors thought that the petitioner was guilty. Id. In a different case, however, the

Court did not infer actual prejudice where pretrial publicity revealed the

defendant’s prior confession for murder and conviction, 77% of prospective jurors

had a preconceived opinion about the defendant’s guilt, and eight out of fourteen

empaneled jurors and alternates had at one time formed an opinion about

defendant’s guilt but indicated that they could set it aside. See Patton v. Yount,

467 U.S. 1025, 1029 (1984); see also Gardner v. Galetka, 568 F.3d 862 (10th Cir.

2009) (holding that there was no actual prejudice although 55% of prospective

jurors had formed an opinion about guilt, and four of the twelve empaneled

indicated that they thought defendant was guilty but could decide the case on the

evidence alone).

      In Mr. Dunlap’s case, extreme precaution was taken to avoid juror

prejudice. See Dunlap v. Zavaras, 2010 WL 3328508, at *5. The judge

conducted in camera voir dire and dismissed potential jurors for significant

exposure to pretrial publicity, admissions that they could not be impartial, or

expressed opinions as to guilt. Id. Of the jurors that were eventually empaneled,

though some had heard of Mr. Dunlap and the Chuck E. Cheese murders, none

expressed an opinion about Mr. Dunlap’s guilt in either the Burger King or Chuck

E. Cheese cases, and all assured the judge of their ability to be impartial. Id. As

the court stated in Irvin,

      It is not required . . . that the jurors be totally ignorant of the facts and

                                      -9-
      issues involved. In these days of swift, widespread and diverse methods
      of communication, an important case can be expected to arouse the
      interest of the public in the vicinity, and scarcely any of those best
      qualified to serve as jurors will not have formed some impression or
      opinion as to the merits of the case. This is particularly true in criminal
      cases. To hold that the mere existence of any preconceived notion as
      to the guilt or innocence of an accused, without more, is sufficient to
      rebut the presumption of a prospective juror's impartiality would be to
      establish an impossible standard. It is sufficient if the juror can lay
      aside his impression or opinion and render a verdict based on the
      evidence presented in court.

Irvin, 366 U.S. at 722. The Colorado Court of Appeals’s apparent conclusion that

the jurors here were able to “lay aside” their impressions and render a verdict

based on the evidence is not contrary to federal law. That court correctly focused

on the empaneled jury and the careful procedures employed by the trial judge to

ensure an impartial jury.



                               II. Improper Vouching

      Mr. Dunlap contends that the Colorado Court of Appeals unreasonably

rejected his improper vouching claim when it found the prosecutor’s remarks to

be fair comments on the evidence and on the defense’s theory. Mr. Dunlap argues

that the prosecutor’s comments deprived him of due process because they resulted

in a fundamentally unfair trial. See Darden v. Wainwright, 477 U.S. 168, 181-82

(1986). As evidence of improper vouching, he points to statements during closing

argument that an investigator, detective, and prosecutor were “professional,”

“ethical,” “kn[ew] when someone is lying,” and would not break the law merely

                                        - 10 -
to obtain a conviction. Mr. Dunlap concedes, as he must, that the prosecution was

entitled to rebut his theory that key prosecution witnesses were lying because the

witnesses had been pressured by law enforcement into implicating him. Aplt.

Reply Br. 19. He claims, however, that the rebuttal here was not supported by the

evidence. Id.

      The district court concluded that the actions complained of did not

constitute vouching, and that the Colorado Court of Appeals decision was not

contrary to, or an unreasonable application of, federal law. Dunlap v. Zavaras,

2010 WL 3328508, at *9. Vouching poses the danger that the jury may decide the

case based upon the government’s judgment, rather than on an independent

consideration of the evidence. See United States v. Young, 470 U.S. 1, 18-19

(1985). Courts often distinguish between reasonable responses to defense

theories and comments and improper argument. Id. at 12; see also Bass v. United

States, 655 F.3d 758, 761 (8th Cir. 2011) (differentiating vouching from affirming

witness credibility). Here, there was adequate foundation for the prosecutor’s

statements. See XLV R.P. at 16 (22 years of experience); at 126 (21 years of

experience); XLIV R.P. at 59-68 (witness preparation); XLVI R.P. at 37-44

(investigative processes and why a story might change); XLV R.P. at 27 (officer

had information that conflicted with the witness’s account). In any event, the jury

was instructed by counsel and the judge not to consider arguments made by

counsel as evidence and to decide the case on the evidence. XLVI R.P. at 26; I

                                       - 11 -
R.P. at 350, Jury Instruction No. 6. Therefore, the Colorado Court of Appeals’s

resolution of this issue is not inconsistent with federal law.

      AFFIRMED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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