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

                                    TENTH CIRCUIT                           August 17, 2011

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 TROY MARTINEZ,

           Petitioner–Appellant,

 v.
                                                              No. 11-1281
 ANGEL MEDINA, Warden (LCF); THE                    (D.C. No. 1:10-CV-00828-WJM)
 ATTORNEY GENERAL OF THE                                       (D. Colo.)
 STATE OF COLORADO,

           Respondents–Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.


       Troy Martinez, a state prisoner proceeding pro se,1 seeks a certificate of

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

habeas petition. We deny his application for COA.




       *
         This order is not binding precedent except under the doctrines of law of the case,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
        We construe Martinez’s application liberally because he proceeds pro se. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
                                              I

       Martinez killed a rival gang member in a drive-by shooting.2 He was charged with

multiple counts in state court. At trial, he admitted to the shooting but argued the killing

was self-defense. He testified that he believed he saw one of the gang members reach for

something shiny in his pocket, and “thought he was reaching for a gun.”

       The trial court instructed the jury that self-defense is an affirmative defense to: (1)

first-degree murder after deliberation; (2) the lesser included offense of second-degree

murder; and (3) the lesser non-included offense of provoked passion manslaughter. It did

not extend the self-defense instruction to the charge of first-degree murder with extreme

indifference, the charge of which Martinez was found guilty. Although the jury did not

render a separate verdict on the lesser non-included offense, the trial court decided to

“accept the verdicts as have in fact been tendered by the jury.” Martinez was sentenced

to life in prison without parole; the Colorado Court of Appeals affirmed his conviction;

and the Colorado Supreme Court denied certiorari review.

       Martinez filed a state application for post-conviction relief, which the state district

       2
         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
“a determination of a factual issue made by a State court shall be presumed to be correct”
unless a habeas petitioner “rebut[s] the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Martinez does not disagree with the
Colorado state courts’ version of the facts of this case; we therefore have generally
adopted the facts as described in People v. Martinez, No. 96CA0966 (Colo. App. Jan. 22,
1998), and have supplemented them with our own review of the state court record only
where necessary.



                                             -2-
court denied. That denial was affirmed on appeal, and the Colorado Supreme Court

denied certiorari.

       Martinez then filed a 28 U.S.C. § 2254 petition in federal district court. Most of

his claims were dismissed for failure to exhaust or for failure to raise a cognizable federal

claim, but the district court considered, and dismissed, three claims on the merits:

       Claim 1: The state trial court committed structural error by failing to require the
       jury to render a verdict on the lesser non-included offense.

       Claim 2: The jury instructions precluded the jury from considering evidence of
       self-defense as a defense to the charge of extreme indifference murder, violating
       Martinez’s constitutional right to present a defense.

       Claim 3: Martinez’s due process rights were violated as a result of prosecutorial
       misconduct in the closing argument.

Presenting these same three claims, and the additional argument that the district court

erred by failing to grant a stay for him to exhaust other claims, Martinez now seeks

permission to appeal.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1)(A). To obtain a COA, Martinez must demonstrate “that

reasonable jurists could debate whether (or, for that matter, agree that) the [§ 2254]

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).


                                            -3-
       All of the arguments for federal habeas relief Martinez presents in his § 2254

petition were decided on the merits in state court. Accordingly, for his petition to

succeed, he must establish that the state court 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 light of the evidence presented in the State court proceeding.” § 2254(d)(1)-

(2); see Turrentine v. Mullin, 390 F.3d 1181, 1188 (10th Cir. 2004).

       Martinez’s § 2254 petition was properly decided.

                                              III

       To prevail on his constitutional claim of “structural error,” Martinez faces a very

high burden. Indeed, the Supreme Court has recognized only “a very limited class” of

structural errors, such as the total deprivation of counsel, the lack of an impartial trial

judge, the denial of the right to self-representation, the violation of the right to a public

trial, or an erroneous reasonable-doubt instruction. United States v. Marcus, 130 S. Ct.

2159, 2164-65 (2010) (quotations and citations omitted) (citing United States Supreme

Court cases). The United States Supreme Court has never held, either directly or

impliedly, that it is structural error for a court not to require a verdict on a lesser non-

included offense when a defendant has been convicted of a more serious offense. That

alone forecloses Martinez’s argument. See § 2254(d)(1). To the extent Martinez’s

application, liberally construed, asserts non-structural error, that claim has not been


                                              -4-
exhausted in state court.

       Martinez’s second claim for relief, that he was entitled to a self-defense instruction

on extreme indifference murder, fares no better. As he admits, when he was convicted in

1996, Colorado law clearly precluded an affirmative defense instruction to this charge.

See People v. Fernandez, 883 P.2d 491, 493 (Colo. App. 1994), superseded by statute,

Colo. Rev. Stat. § 18-1-704(4) (2003), as recognized in People v. Lara, 224 P.3d 388, 393

(Colo. App. 2009).3 Under Colorado law, Martinez did have a right to present evidence

of self-defense to negate the elements of the crime charged. See Case v. People, 774 P.2d

866, 870 (Colo. 1989). And the trial court gave him that opportunity—it “did not

preclude the jury from considering defendant’s evidence concerning self-defense as it

related to the elements of the crime of extreme indifference murder,” it “did not restrict

defendant’s presentation of such evidence,” nor did it “limit defendant’s counsel from

asserting he acted in self-defense during closing argument.” Martinez, No. 96CA0966,

slip op. at 6 (Colo. App. Jan. 22, 1998). Martinez’s trial counsel did not request a jury

instruction specifying that self-defense could negate the mental element of the extreme

indifference murder charge. Such an instruction should have been requested. But

Colorado law merely required the trial court to give Martinez the opportunity to argue

self-defense. As the district court properly held, “[t]he trial court neither precluded the

       3
        Because § 18-1-704(4) was enacted well after Martinez’s trial and conviction, his
arguments based on the mandatory jury instruction provisions in Subsection (4) are
inapposite.


                                            -5-
jury from considering self-defense . . . nor erred in failing to sua sponte give [a self-

defense] instruction.”

       Martinez’s next argument, that his due process rights were compromised by

certain statements the prosecutor made during closing argument, also fails. Improper

statements during closing argument warrant habeas relief if they “so infected the trial

with unfairness as to make the resulting conviction a denial of due process.” Bland v.

Sirmons, 459 F.3d 999, 1014 (10th Cir. 2006). Martinez has not demonstrated this level

of pervasive prejudice. The statements he finds objectionable were responsive to his

assertion of self-defense. Moreover, even assuming they were improper, they were

exceedingly isolated, comprising less than two pages of trial transcript. “We have often

held that a stray improper remark in closing is no basis for upsetting a trial.” Lopez-

Medina, 596 F.3d 716, 740 (10th Cir. 2010) (quotation omitted).

                                              IV

       Finally, we reject Martinez’s argument on appeal that the district court committed

reversible error by denying his motion to stay his habeas petition while he exhausted his

unexhausted claims in state court. Whether to grant a stay and abeyance when a habeas

petitioner has failed to exhaust state remedies is a matter of district court discretion.

Rhines v. Weber, 544 U.S. 269, 276-79 (2005). In light of the United States Supreme

Court’s admonition that “stay and abeyance is only appropriate when the district court

determines there was good cause for the petitioner’s failure to exhaust his claims first in


                                             -6-
state court,” id. at 277, the district court’s ruling was entirely proper.

                                               V

       No reasonable jurist could dispute that the district court acted properly in

dismissing Martinez’s § 2254 petition. Accordingly, his application for COA is

DENIED. His motion to proceed in forma pauperis is GRANTED.


                                                           Entered for the Court



                                                           Carlos F. Lucero
                                                           Circuit Judge




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