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

                                    TENTH CIRCUIT                          February 6, 2013

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 BRUCE EDWARD PETERSON,
                                                             No. 12-1436
           Petitioner–Appellant,                    (D.C. No. 1:11-CV-03003-RBJ)
                                                              (D. Colo.)
 v.

 RAE TIMME; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

           Respondents–Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Bruce Edward Peterson, a state prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his 28 U.S.C. § 2254

petition for writ of habeas corpus, and seeks leave to proceed in forma pauperis (“IFP”).

We deny a COA, deny the motion to proceed IFP, and dismiss the appeal.

       *
         This order is not binding precedent except under the doctrines of law of the case,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 Peterson is proceeding pro se, we construe his pleadings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops,
however, at the point at which we begin to serve as his advocate.” United States v.
Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
                                              I

       Peterson was convicted in Colorado state court of enticement of a child, attempted

sexual assault, and indecent exposure. Peterson filed both a postconviction motion under

Colo. R. Crim. P. 35(c) and a direct appeal. The Colorado Court of Appeals denied the

Rule 35(c) motion and affirmed the conviction. Peterson petitioned the Colorado

Supreme Court for writ of certiorari, which was denied on November 15, 2010.

       In November 2011, Peterson filed a § 2254 habeas petition in the United States

District Court for the District of Colorado. Peterson’s petition alleged: (1) judicial

misconduct by the trial court; (2) an unreasonable verdict unsupported by the evidence;

and (3) ineffective assistance of counsel. On April 5, 2012, the district court dismissed

Peterson’s first two claims as procedurally barred after determining that Peterson failed to

exhaust state remedies. The district court also ordered further briefing on the ineffective

assistance of counsel claim.

       In October 2012, the district court denied Peterson’s ineffective assistance of

counsel claim. Holding that Peterson’s claims were conclusory and that they failed to

show prejudice, the court issued a final judgment dismissing Peterson’s habeas petition.

       Peterson makes two arguments on appeal. He claims that the district court erred in

dismissing his ineffective assistance of counsel claim and contends that the prosecution

failed to disclose exculpatory evidence.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a
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COA. 28 U.S.C. § 2253(c)(1). We will grant a COA only if Peterson shows “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) (quotations omitted). To prevail on the merits, Peterson must demonstrate that the

state court’s adjudication of his claims either “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented” or was

“contrary to, or involved an unreasonable application of, clearly established Federal law.”

§ 2254(d)(1), (2).

                                              A

       Peterson contends that he was denied effective assistance of counsel at the trial

level. Peterson claims that his attorney was unethical and inadequately prepared, did not

call witnesses as requested by Peterson, had a conflict of interest, and failed to object to

various allegedly improper aspects of his trial.

       To establish ineffective assistance of counsel based on a conflict of interest,

Peterson must show that “a conflict of interest actually affected the adequacy of his

representation.” Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980).

       To establish ineffective assistance of counsel based on his other claims, Peterson

must meet the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, Peterson must prove that his “counsel’s representation fell below an

objective standard of reasonableness” and that “any deficiencies in counsel’s
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performance [were] prejudicial to the defense.” Id. at 688, 692. To establish prejudice,

Peterson must demonstrate a “reasonable probability that, but for counsel’s

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

The Colorado Court of Appeals concluded that Peterson had not met his burden under

Strickland; under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), that

result must be upheld “so long as fairminded jurists could disagree on the correctness of

the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quotation

omitted).

       We agree with the district court that Peterson has failed to demonstrate ineffective

assistance of trial counsel. First, Peterson has not established that a conflict of interest

“actually affected the adequacy of his representation.” Cuyler, 446 U.S. at 349.

Peterson’s conclusory allegation that there was a conflict of interest, without more, is

insufficient. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Second,

Peterson does not explain how his trial counsel’s alleged three visits, failure to return his

phone calls, and failure to object at trial prejudiced him such that there is a “reasonable

probability” that the “result of the proceeding would have been different.” Strickland,

466 U.S. at 694. Finally, we reject Peterson’s claim that trial counsel’s failure to call and

subpoena witnesses and surveillance tapes constituted ineffective assistance of counsel

because he has not asserted any specific exculpatory evidence that would have changed

the outcome of his proceedings. Offering only “conclusory allegations without

supporting factual averments,” Hall, 935 F.2d at 1110, Peterson fails to overcome the
                                              -4-
deference we owe to the state court’s determination, see § 2254(d).

                                             B

       Peterson also argues that the prosecution failed to disclose exculpatory evidence,

an argument he made in his habeas petition under the heading “judicial misconduct.”

The district court dismissed Peterson’s judicial misconduct claim, holding that Peterson

had failed to exhaust the argument in state court. However, the state court exhaustion

requirement is satisfied if the issue has been “properly presented to the highest state

court, either by direct review of the conviction or in a postconviction attack.” Dever v.

Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). In his Rule 35(c)

postconviction motion in state court, Peterson argued that the government failed to

disclose exculpatory evidence. Therefore, we disagree with the district court that this

claim is barred for lack of exhaustion; however, we dismiss it on other grounds.

       To obtain federal habeas relief due to a claim that the prosecution suppressed

exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), Peterson

must demonstrate that: “(1) the prosecution suppressed evidence; (2) the evidence was

favorable to the accused; and (3) the evidence was material to the defense.” Hooks v.

Workman, 689 F.3d 1148, 1179 (10th Cir. 2012) (quotation omitted). However, in

elucidating his claim, Peterson merely asserts that at an evidentiary hearing he would

subpoena various witnesses; he does not demonstrate that the prosecution suppressed

evidence from these witnesses. Having failed to meet his burden under Brady, we reject

Peterson’s claim that the prosecution failed to disclose exculpatory evidence.
                                             -5-
                                           III

      For the foregoing reasons, we DENY a COA and DISMISS the appeal. We also

DENY Peterson’s motion to proceed in forma pauperis because he has failed to advance

“a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).


                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




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