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

                            FOR THE TENTH CIRCUIT                               June 11, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 RAY A. SMITH,

       Petitioner - Appellant,

 v.                                                           No. 18-1362
                                                     (D.C. No. 1:16-CV-02528-RBJ)
 JOHN CHAPDELAINE; THE                                         (D. Colo.)
 ATTORNEY GENERAL OF THE STATE
 OF COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY
                   _________________________________

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.
                  _________________________________

       Ray A. Smith, a Colorado pro se prisoner, seeks a certificate of appealability

(COA) to challenge the district court’s order denying his application for 28 U.S.C. § 2254

habeas relief. We deny a COA and dismiss this matter.

                                      BACKGROUND

       The Colorado Court of Appeals (CCA) summarized this case as follows:

              In January 2008, Smith spent a day drinking with his friend, Phillip
       Patterson, and another man, Jeffrey Crane. Later that day, after Patterson
       had fallen asleep, Smith stabbed Crane to death.
              Smith was arrested and charged with murder. While awaiting trial,
       he made phone calls from jail. During those calls, which were recorded, he

       
         This order is not binding precedent except under the doctrines of law of the case,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.
       asked potential witnesses to testify untruthfully or to avoid appearing at
       trial. Consequently, he was charged with witness tampering.
               At trial [in the Denver District Court], the prosecution entered
       various types of incriminating evidence, including DNA and bloodstain
       evidence, the testimony of various witnesses (including Patterson), Smith’s
       own statements to police and to his girlfriend, and recordings of Smith’s
       calls from jail. Smith testified that he and Crane had struggled over a knife.
       Smith said that he did not remember stabbing Crane, but he “assumed” that
       that had occurred.
               The jury convicted Smith of first degree murder and seven counts of
       tampering with a witness.

R., Vol. I at 164. The trial court sentenced Smith to life without parole on the murder

count, consecutive to six years’ incarceration on the tampering counts. The CCA

affirmed Smith’s convictions.

       Smith then sought state postconviction relief on a variety of theories. After those

claims were rejected, he initiated the current federal habeas proceedings.

       In his § 2254 application, Smith raised eight claims in the district court:

(1) unlawful custodial interrogation; (2) unconstitutional state charging statute; (3) lack

of specificity in the charging documents; (4) ineffective assistance of counsel during plea

negotiations; (5) ineffective assistance of trial counsel; (6) ineffective assistance of

appellate counsel; (7) judicial misconduct; and (8) prosecutorial misconduct. After

thoroughly reviewing and considering the claims, the district court determined that many

were procedurally barred and that the remainder did not warrant habeas relief.

Accordingly, the district court denied Smith’s application for habeas relief and declined

to issue a COA.




                                               2
                                        DISCUSSION
                                  I. Standards of Review

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

537 U.S. 322, 336 (2003). To obtain a COA, a petitioner 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 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 omitted). Where the district court has denied a claim on

procedural grounds, the petitioner must show 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.

       In deciding whether to grant a COA, we incorporate the deferential treatment of

state court decisions required by the Antiterrorism and Effective Death Penalty Act

(AEDPA). See Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir. 2015). Where the

state courts have ruled on the merits of a petitioner’s claims, he is entitled to relief under

AEDPA “only if [their] decision 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 the light of the

evidence presented in the State court proceeding.” Id. (citation and internal quotation

marks omitted). And where the state courts have declined to consider the merits of a


                                               3
federal claim based on independent and adequate state procedural grounds, a federal

court will consider that claim barred and beyond review unless the petitioner can show

cause for the default in state court and resulting prejudice, or a fundamental miscarriage

of justice. See Smith v. Workman, 550 F.3d 1258, 1274 (10th Cir. 2008). Similarly,

“[a]nticipatory procedural bar occurs when the federal courts apply procedural bar to an

unexhausted claim that would be procedurally barred under state law if the petitioner

returned to state court to exhaust it.” Moore v. Schoeman, 288 F.3d 1231, 1233 n.3

(10th Cir. 2002) (internal quotation marks omitted).

       Finally, although we liberally construe Smith’s pro se filings, we “cannot take on

the responsibility of serving as [his] attorney in constructing arguments and searching the

record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

                     II. Custodial Interrogation (Habeas Claim 1)

       On direct appeal to the CCA, Smith argued that the trial court should have

suppressed non-Mirandized statements he made to police the morning after Crane’s

stabbing. In rejecting Smith’s argument, the CCA recounted the pertinent facts as

follows:

             The morning after the stabbing, two Arvada police officers came to
       Smith’s home. They were admitted by Smith’s girlfriend. The officers
       woke Smith and told him that he was a potential witness to a crime in
       Denver.
             Officer Kristin Harris noticed that Smith had a large cut on his hand.
       She asked about the injury, and Smith replied that he had received it the
       previous day. Harris then reported the injury to the Denver Police
       Department and was informed that Smith was a suspect.
             The officers did not initiate further conversation with Smith.
       However, Smith spontaneously asked whether Patterson was okay, and he


                                             4
       changed his story about the cut, saying that it had happened several days
       earlier.
               A short time later, Denver police officers arrived and took Smith to
       the police station, [where he was Mirandized and questioned further].

R., Vol. I at 165. The CCA found no error in the admission of Smith’s non-Mirandized

statements, as he was neither in custody nor subject to interrogation when he made them.

       The federal district court concluded that the CCA’s decision was not contrary to or

an unreasonable application of clearly established federal law. In doing so, the district

court acknowledged Smith’s complaints that Officer Harris told him to not light a

cigarette, that he could not move freely around the house after Denver police arrived, and

that he was never told he could leave. But the district court stated that those

circumstances did not turn his interaction with the Arvada police officers into a custodial

interrogation requiring Miranda warnings.

       Smith has not shown that the district court’s decision is debatable. Unless and

until an individual is subject to custodial interrogation, Miranda does not apply. United

States v. Cash, 733 F.3d 1264, 1276 (10th Cir. 2013). “To be in custody, a person must

be under formal arrest or have his freedom of action curtailed to a degree associated with

formal arrest.” Id. at 1277 (ellipsis and internal quotation marks omitted).

“[I]nterrogation extends only to words or actions that the officers should have known

were reasonably likely to elicit an incriminating response.” Id. (internal quotation marks

omitted).

       Where, as here, officers question a person about the source of an injury in a

non-coercive environment and without restricting his or her freedom of movement,


                                             5
Miranda is generally not implicated. See United States v. Scalf, 725 F.2d 1272, 1276

(10th Cir. 1984). Moreover, “volunteered statements made [even] while in custody but

not in response to questions posed by the police are not subject to the Miranda

exclusionary rule.” United States v. Pettigrew, 468 F.3d 626, 634 (10th Cir. 2006).

       Smith is not entitled to a COA on this claim.

                  III. Colorado’s Charging Statute (Habeas Claim 2)

       After the CCA affirmed his conviction and sentence, Smith returned to the state

trial court, filing successive motions complaining of jurisdictional defects arising from

the district attorney’s office commencing prosecution in the Denver County Court. The

trial court could not ascertain Smith’s legal argument, and it ultimately barred him from

reasserting the argument. The CCA concluded that the argument was barred with respect

to Smith’s conviction and that it was meritless as to his sentence.

       In his federal habeas application, Smith transformed his claim into a vague federal

due-process challenge to Colo. Rev. Stat. § 16-5-205(3), which requires that criminal

charging documents comply with the Colorado criminal-procedure rules. The federal

district court determined that this claim had not been exhausted in state court and would

be barred if Smith attempted to raise it there now. See Colo. R. Crim. P. 35(c)(3)(VII)

(providing generally that “[t]he court shall deny any claim that could have been presented

in an appeal previously brought or postconviction proceeding previously brought”).1


       1
        This rule is both independent and adequate because it is based on Colorado law
and has been applied evenhandedly by the Colorado courts. See LeBere v. Abbott,
732 F.3d 1224, 1233 n.13 (10th Cir. 2013) (collecting unpublished cases determining that
Rule 35(c)(3)(VII) is an independent and adequate state ground precluding federal habeas
                                             6
        We agree that Smith’s federal due-process claim is unexhausted. See Bland v.

Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006) (“[P]resentation of a somewhat similar

claim is insufficient to fairly present a federal claim before the state courts . . . .”); cf. Poe

v. Caspari, 39 F.3d 204, 207 (8th Cir. 1994) (“Jurisdiction is no exception to the general

rule that federal courts will not engage in collateral review of state court decisions based

on state law . . . .”).

        We also agree with the district court’s determination that Smith failed to surmount

the resulting anticipatory procedural bar with a showing of either cause and prejudice or a

miscarriage of justice. Smith cannot rely on ineffective assistance of appellate counsel as

cause because such a claim must itself be exhausted, see Edwards v. Carpenter, 529 U.S.

446, 453 (2000), and Smith never claimed in state court that his appellate counsel was

ineffective. Nor can Smith rely on a miscarriage of justice, as he has not identified new,

reliable evidence of his innocence. See Frost v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir.

2014) (explaining that the miscarriage-of-justice exception requires “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial,” and which

“show[s] that it is more likely than not that no reasonable juror would have convicted the

petitioner in the light of the new evidence” (internal quotation marks omitted)).


review). Smith does not address the exhaustion of his claim; instead, he revisits the
substance of his claim, “assert[ing] that he was brought before a tribunal and judged
unlawfully and bound over for trial so the District Attorney’s Office could rush to secure
a conviction.” Appl. for COA at 11. “A state prisoner bears the burden of showing he
has exhausted available state remedies.” Hernandez v. Starbuck, 69 F.3d 1089, 1092
(10th Cir. 1995).
                                                7
       We conclude that jurists of reason could not debate whether the district court

correctly imposed an anticipatory procedural bar. We, therefore, deny a COA as to

Claim 2.2

                       IV. Ineffective Assistance of Trial Counsel

       To make out an ineffective-assistance claim, a defendant must show that trial

counsel performed deficiently, and that the deficient performance was prejudicial.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

                          A. Plea Negotiations (Habeas Claim 4)

       During his postconviction appeal to the CCA, Smith claimed for the first time that

he received ineffective assistance during plea negotiations because his attorney

inadequately advised him about the strength of the prosecution’s case. The CCA

declined to consider Smith’s claim presented for the first time on appeal from the denial

of postconviction relief. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007)

(declining to consider ineffective-assistance claim not raised in defendant’s

postconviction motion).

       The federal district court found the claim procedurally defaulted, and it recognized

its inability to consider the claim in the absence of cause for the default and actual


       2
         The district court also applied anticipatory procedural bar to Smith’s claims that
his due-process rights were violated because the time of the offense was omitted from the
criminal complaint and information (Habeas Claim 3); that he received ineffective
assistance of appellate counsel (Habeas Claim 6); and that the state judge who presided
over his trial committed misconduct (Habeas Claim 7). The district court determined, for
the reasons noted above in relation to Smith’s second habeas claim, that Smith could not
avoid the procedural bar. Because that determination is not debatable, we deny a COA
on Habeas Claims 3, 6, and 7.
                                              8
prejudice, or a fundamental miscarriage of justice. In assessing cause, the district court

followed the rule that a prisoner may avoid defaulting an ineffective-assistance claim if

the state courts did not appoint counsel in “the initial review proceeding in respect to the

ineffective-assistance-of-trial-counsel claim,” Trevino v. Thaler, 569 U.S. 413, 423

(2013), and the “prisoner [can] demonstrate that the underlying ineffective-assistance-of-

trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate

that the claim has some merit,” Martinez v. Ryan, 566 U.S. 1, 14 (2012).3 The district

court determined, however, that Smith’s ineffective-assistance claim was not substantial.

       Reasonable jurists could not debate this determination. Smith alleged he had been

offered a plea agreement with a likely thirty-two year sentence. When Smith asked

defense counsel whether he should accept the plea agreement and hope that the judge

would instead approve a sixteen-year sentence, defense counsel allegedly responded,

“I can’t tell you that, you have to figure that out for yourself.” R., Vol. II at 382 (brackets

and internal quotation marks omitted). The district court assumed that defense counsel

was deficient, but it found no resulting prejudice because Smith had also alleged that

(1) the prosecutor would not agree to a sixteen-year sentence, as the trial judge would not



       3
         The district court further correctly noted that the Martinez/Trevino rule applies if
the state either (1) “requires that an ineffective assistance of trial counsel claim be raised
in an initial-review collateral proceeding,” Trevino, 569 U.S. at 423 (alterations and
internal quotation marks omitted); or (2) the “state procedural framework, by reason of its
design and operation, makes it highly unlikely in a typical case that a defendant will have
a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal,” id. at 429. Colorado falls in the second category. See Barker v. Raemisch,
757 F. App’x 750, 753 n.2 (10th Cir. 2018) (unpublished and cited here under 10th Cir.
R. 32.1(A) for its persuasive value).
                                              9
approve it; and (2) he (Smith) was reluctant to accept a thirty-two year sentence. Thus,

Smith failed to show a reasonable probability that he would have accepted the plea

agreement if properly advised by counsel. See Missouri v. Frye, 566 U.S. 134, 147

(2012) (explaining that to establish prejudice on an ineffective-assistance claim where a

plea offer has lapsed or been rejected, the defendant “must demonstrate a reasonable

probability” that he would have accepted the putative plea offer and that “the plea would

have been entered without the prosecution canceling it or the trial court refusing to accept

it”).

        Smith is not entitled to a COA on this issue.

                                 B. Trial (Habeas Claim 5)

        The federal district court culled through Smith’s habeas petition and identified

sixteen claims of ineffective assistance of counsel during trial:

        (a) failure to have key evidence tested for fingerprints or DNA; (b) failure
        to subpoena two critical witnesses for Mr. Smith; (c) failure to obtain video
        tape from [the] lobby of [Mr. Smith’s] apartment building; (d) failure to get
        video tape from two city buses that Mr. Smith rode home [from Patterson’s
        apartment]; (e) failure to have Mr. Smith’s BAC tested and the BAC of a
        witness tested; (f) failure to keep two African-American ladies on the jury
        that Mr. Smith wanted; (g) failure to find or present available witnesses,
        including expert witnesses; (h) use of a very vague line of questioning and
        presenting few substantial objections for key prosecution witnesses;
        (i) failure to confirm time-lines of crucial elements and events; and
        (j) failure to present any adversarial challenge by resting without providing
        a defense as promised in opening statement; (k) failure to raise the defense
        of intoxication; (l) failure to object to the prosecutor’s insistence that
        Mr. Smith demonstrate the events surrounding the crime; (m) failure to
        highlight discrepancies in the evidence tending to disprove the
        prosecution’s theory of racial prejudice and jealousy; (n) failure to present
        an alibi defense; (o) failure to present a defense strategy, which compelled
        Mr. Smith to testify to try to defend himself; and (p) failure to object to the


                                              10
       jury handling evidence during deliberation that was not admitted into
       evidence.
R., Vol. I at 361.

1.     Exhausted Ineffective-Assistance Claims

       The district court noted that only two of the claims had been fully exhausted in

state court: failing to find or present available witnesses, including expert witnesses

(subclaim (g)); and providing only vague questions and limited objections to prosecution

witnesses (subclaim (h)). The CCA had summarily rejected those claims as procedurally

defaulted because Smith provided only vague and/or conclusory allegations of ineffective

assistance in the postconviction court. See Osorio, 170 P.3d at 799 (authorizing the

summary denial of an ineffective-assistance claim based on allegations that “are merely

conclusory, vague, or lacking in detail”).

       The federal district court declined, however, to apply procedural bar, given that

the CCA considered Strickland in determining whether Smith’s allegations were

sufficient. Cf. Smith, 550 F.3d at 1274 (“A state procedural default is ‘independent’ if it

relies on state law, rather than federal law.”). Thus, the district court addressed subclaims

(g) and (h) on their merits, and it succinctly determined that Strickland had not been

violated.

       We conclude that a COA is not warranted. “Our review of ineffective-assistance

claims under § 2254 . . . is doubly deferential, deferring both to the state court’s

determination that counsel’s performance was not deficient and to the attorney’s decision

in how to best represent a client.” Goode v. Carpenter, 922 F.3d 1136, 1155 (10th Cir.


                                              11
2019) (ellipsis and internal quotation marks omitted). As the state postconviction court

noted, Smith’s vague claims about witnesses mostly reflected a disagreement with

counsel about trial strategy. In his request for a COA, Smith offers no developed

contrary argument. We therefore conclude that reasonable jurists could not debate

denying habeas relief on subclaims (g) and (h).

2.     Unexhausted Ineffective-Assistance Claims

       As for Smith’s fourteen other allegations of ineffective assistance, the district

court separated them into two groups. In the first group, the district court noted that

Smith had presented ten subclaims to the state postconviction court that he did not appeal

to the CCA (subclaims (b), (d), (e), (f), (i), (j), (k), (m), (n), and (o)). These subclaims

were procedurally defaulted because they were not exhausted in a full round of state

review, see Baldwin v. Reese, 541 U.S. 27, 29 (2004), and would be barred if Smith

returned to state court to assert them, see Colo. R. Crim. P. 35(c)(3)(VII).

       The district court further correctly pointed out that Smith could not use the

Martinez/Trevino rule to show cause for defaulting these claims. See Norris v. Brooks,

794 F.3d 401, 405 (3d Cir. 2015) (observing that an ineffective-assistance claim

“presented on initial collateral review and only waived on collateral appeal” is subject to

the ordinary cause-and-prejudice/miscarriage-of-justice rules). These subclaims were,

therefore, beyond federal habeas review for the same reasons that plagued Smith’s other

defaulted claims. See supra discussion Part III. We conclude that no reasonable jurist

could debate the district court’s resolution of the procedural bar applicable to these ten

subclaims of ineffective assistance of trial counsel.

                                              12
       In the second group, the district court noted that subclaims (a), (c), (l), and (p)

were not raised in the initial state court postconviction proceedings (or on postconviction

appeal to the CCA), and thus, were amenable to the Martinez/Trevino rule for cause—

i.e., substantiality. The district court addressed each subclaim and determined that each

was meritless. We conclude that the district court’s determination is not debatable for the

reasons that follow.

       Subclaim (a) involved defense counsel’s failure to have certain evidence tested for

fingerprints and DNA. The district court concluded that defense counsel’s decision to not

conduct such tests was a reasonable strategic choice, given that DNA evidence already

tied Smith to the murder and there was a chance that further testing might reveal more

incriminating evidence. See Newmiller v. Raemisch, 877 F.3d 1178, 1198 (10th Cir.

2017) (“Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” (brackets and internal quotation marks

omitted)), cert. denied, 139 S. Ct. 59 (2018).

       Additionally, even assuming that counsel performed deficiently, the district court

concluded that Smith was not prejudiced, given the overwhelming evidence of his guilt.

Indeed, the evidence showed that Crane was stabbed multiple times; Crane’s DNA was

found on Smith’s shirt; Smith’s DNA was found on the murder weapon and on Crane;

Smith’s blood was found in Peterson’s sink and apartment stairwell and at the nearby bus

stop; and Smith admitted the stabbing to his girlfriend and later called her from jail,

telling her not to reveal his confession. Reasonable jurists could not debate the district

court’s resolution of subclaim (a).

                                              13
       In subclaim (c), Smith complained that defense counsel failed to obtain a video

tape from the lobby of his apartment, which would have shown Smith returning home

and not leaving again. The district court determined that even if such video existed and

defense counsel should have retrieved it, Smith was not prejudiced because of the

overwhelming evidence of his guilt. Reasonable jurists could not debate the merits of

this subclaim.

       In subclaim (l), Smith asserted that defense counsel was ineffective by not

objecting to the prosecutor’s use of Smith in demonstrations while Smith was being

cross-examined. The district court rejected this claim by noting that defense counsel in

fact objected. And again the district court referenced Smith’s failure to show prejudice

due to the overwhelming evidence of his guilt. The district court’s resolution of this

subclaim is not debatable.

       Finally, subclaim (p) involved defense counsel’s failure to object to the jury’s

handling of a knife. Smith alleged that counsel was ineffective because the knife had not

been admitted into evidence. The district court aptly found the claim meritless because

the knife was in fact admitted into evidence and because Smith failed to show prejudice.

       As Smith failed to show that subclaims (a), (c), (l), or (p) were substantial, the

district court applied procedural bar. We conclude that no reasonable jurist could debate

that application of procedural bar.

       Smith is not entitled to a COA on any of his unexhausted subclaims of ineffective

assistance of trial counsel.



                                             14
                    V. Prosecutorial Misconduct (Habeas Claim 8)

       In a state postconviction motion, Smith claimed that the prosecutor committed

misconduct by “1) repeated[ly] us[ing] . . . the term ‘lie’ and its iterations; 2) making

false and inflammatory comments in closing arguments; and 3) fail[ing] to provide a

theory of defense instruction.” R., Vol. II at 62. The postconviction court found that the

claims were barred because they could have been raised on direct appeal. The CCA

agreed.

       The federal district court found the claims procedurally defaulted, and it concluded

that Smith failed to show cause for the default and actual prejudice or a fundamental

miscarriage of justice. See supra discussion Part III.

       We conclude that Smith is not entitled to a COA on this claim because the district

court’s application of procedural bar is not debatable.

                                       CONCLUSION

       We deny Smith’s application for a COA, and we dismiss this matter. Smith’s

application for in forma pauperis status is granted.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




                                             15
