                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              July 6, 2006
                                      TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                              Clerk of Court


 KINSHASA COOLEY,

           Petitioner-Appellant,
 v.                                                           No. 06-1081
 AL ESTEP and JOHN SUTHERS,                        (D.C. No. 03-CV-1761-EWN-BNB
 Attorney General of the State of Colorado,                  (D. Colorado)

           Respondents-Appellees.




                                   ORDER AND JUDGMENT *


Before HENRY, BRISCOE, 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.

       Kinshasa Cooley, a Colorado state prisoner appearing pro se, seeks a certificate of

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


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
2254 petition for writ of habeas corpus. For the reasons outlined below, we grant a COA

with respect to Cooley’s Confrontation Clause and Due Process Clause claims, and

reverse and remand with directions to the district court to obtain a copy of the state trial

transcript so that it can properly assess these claims.

                                              I.

       On November 9, 1995, Cooley was convicted by a jury in Colorado state district

court of second degree burglary, aggravated robbery, menacing, and conspiracy to

commit second degree burglary and aggravated robbery. Cooley was sentenced to a total

term of imprisonment of thirty-two years. The Colorado Court of Appeals (CCA)

affirmed his convictions on direct appeal. The Colorado Supreme Court denied Cooley’s

petition for writ of certiorari on September 22, 1997. Cooley subsequently made two

unsuccessful attempts at obtaining state post-conviction relief.

       On September 2, 2003, Cooley initiated these federal habeas proceedings by filing

a motion for leave to proceed in forma pauperis. The district court granted Cooley’s

motion and Cooley filed his federal habeas petition on September 11, 2003. After

allowing respondents to file an answer to Cooley’s petition, the magistrate judge denied

Cooley’s motion to review the state court record and issued a report and recommendation

recommending that Cooley’s habeas petition be denied. The district court adopted the

magistrate judge’s recommendation and denied the petition. The district court

subsequently denied Cooley’s request for a COA. Cooley has now renewed his request

for a COA with this court.

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                                              II.

       The denial of a petition for federal habeas relief pursuant to 28 U.S.C. § 2254 may

be appealed only if the district court or this court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). “A certificate of appealability may issue . . . only if the applicant has

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

2253(c)(2). In order to make such a showing, a petitioner must demonstrate that

“reasonable jurists could debate whether . . . 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).

                                Confrontation Clause claim

       Cooley argued in his federal habeas petition that the state district court violated his

rights under the Confrontation Clause by admitting at trial an out-of-court statement made

by co-defendant John Glasper to a police detective. Cooley first raised this issue on direct

appeal. The CCA concluded that the state district court failed to make a threshold finding

of Glasper’s unavailability, and thus erred in admitting Glasper’s out-of-court statements.

However, the CCA concluded that Cooley was not prejudiced by the admission of

Glasper’s out-of-court statements and thus the error was harmless. Applying the

standards of review outlined in 28 U.S.C. § 2254(d), the magistrate judge, and in turn the

federal district court, found no basis for granting federal habeas relief on this claim.

       After examining the record on appeal, we conclude the magistrate judge and the

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district court failed to conduct a proper review of Cooley’s claim. “Reviewing courts,”

including federal habeas courts, “normally disregard trial errors that are harmless.”

O’Neal v. McAninch, 513 U.S. 432, 434 (1995). In determining whether a particular trial

error was harmless, however, a reviewing court “has an obligation” to conduct “a record

review . . . .” Id. at 435. Consistent with this obligation, Rule 5 of the Rules Governing

Section 2254 Cases in the United States Courts requires a respondent to “attach to the

answer parts of the transcript that the respondent considers relevant,” and also allows a

district court, in pertinent part, to “order that the respondent furnish other parts of existing

transcripts . . . .” Here, the respondents, in addressing Cooley’s Confrontation Clause

claim, summarized portions of certain witnesses’ testimony, but did not otherwise submit

to the district court any portions of the state trial transcript. Indeed, it appears from a

footnote in respondents’ answer that they made no attempt to obtain that transcript in

preparing their answer. See ROA, Doc. 16 at 2 n.1 (“The state court record volumes are

cited as they were numbered in Petitioner’s direct appeal. Because Respondents do not

have custody of the volumes, it is unknown if they are presently numbered as they were

in that appeal.”). Although Cooley subsequently filed a motion asking the district court,

consistent with Rule 5, to order production of the state trial transcript, the magistrate

judge summarily denied that motion. Id., Doc. 26. Thus, the magistrate judge’s, and in

turn the district court’s, review of the CCA’s resolution of Cooley’s Confrontation Clause

claim was performed without benefit of the only document that could have helped

definitively determine whether the admission of Glasper’s out-of-court statements was

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harmless, i.e., the state trial transcript.

       Accordingly, we conclude that the only proper course of action is to grant Cooley

a COA with respect to his Confrontation Clause claim, reverse the judgment of the

district court, and remand with directions to first obtain a copy of the state trial transcript

and then review the Confrontation Clause claim anew.1

                                    Due Process Clause claim

       We reach a similar conclusion with respect to Cooley’s claim that the state district

court violated his due process rights by failing to sua sponte instruct the jury on the issue

of voluntary intoxication. Cooley first raised this issue on direct appeal, and the CCA

rejected it under a plain error standard of review. In doing so, the CCA concluded, after

reviewing the record on appeal, “that the decision not to request the voluntary

intoxication instruction . . . was tactical and . . . not an oversight.” ROA, Doc. 16, App. D

at 5. More specifically, the CCA stated:

       Although defense counsel referred to [Cooley]’s alleged intoxication both
       during opening statements and closing argument, counsel emphasized that
       the prosecution’s evidence had showed only defendant’s mere presence at
       the scene. Consistent with the defense that [Cooley] merely was at the
       scene, but had not committed the offenses, the trial court instructed the jury
       that: “Mere presence at the scene of a crime, even with the knowledge that a
       crime is being committed, is insufficient to support a guilty verdict.”



       1
         In connection with his Confrontation Clause claim, Cooley also asks us to revisit
our decision in Brown v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004), holding that
Crawford v. Washington, 541 U.S. 36 (2004) (prohibiting the admission of “testimonial”
hearsay into evidence against a defendant without a prior opportunity for cross-
examination) is not retroactively applicable to an initial § 2254 habeas petition. We
decline to do so.

                                              -5-
          Defense counsel may have determined, as a matter of strategy, that a
       voluntary intoxication instruction was harmful to the primary defense
       because it would have acknowledged defendant actually had performed the
       culpable conduct while attempting to negate the requisite specific intent.
       Under these circumstances, we conclude the decision whether to request
       such an instruction was properly left to defense counsel.

Id. In his federal habeas petition, Cooley argued that the CCA erred in finding, based

solely upon its reading of the trial transcript, that his trial counsel made a tactical decision

not to request a voluntary intoxication instruction. Accordingly, Cooley asserted it was

necessary for the federal district court to conduct an evidentiary hearing, or alternatively

to allow him to engage in discovery, to determine whether, in fact, his trial counsel had

made such a tactical decision. In their answer, respondents argued that “the record

support[ed] the [CCA’s] determination that any error was harmless.” Id. Doc. 16 at 22.

       In rejecting Cooley’s claim, the magistrate judge, and in turn the district court,

properly determined that the CCA’s factual determinations were entitled to a presumption

of correctness under 28 U.S.C. § 2254(e)(1). However, the magistrate judge and district

court then concluded that Cooley “d[id] not attempt to rebut any factual determinations

made by the [CCA].” ROA, Doc. 44 at 9.

       Although we are skeptical whether Cooley’s claim has any merit, it is clear from a

review of the record on appeal that Cooley did, in fact, seek to rebut the key factual

determination made by the CCA, i.e., that Cooley’s trial counsel made a tactical decision

not to assert a voluntary intoxication defense. And, as with Cooley’s Confrontation

Clause claim, we conclude that the magistrate judge and district court could not have



                                              -6-
properly resolved Cooley’s claim without first reviewing the state trial transcript. Thus,

we likewise reverse the district court’s dismissal of this claim and remand it to the district

court for further resolution following the district court’s obtainment of the state trial

transcript.

       The request for a COA is GRANTED, the judgment of the district court is

REVERSED, and the case REMANDED to the district court with directions to obtain a

copy of Cooley’s state trial transcript and to reevaluate Cooley’s Confrontation Clause

and Due Process Clause claims. We also GRANT Cooley’s motion for leave to proceed

in forma pauperis.


                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




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