                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                     PUBLISH
                                                                      FEB 27 1997
                    UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                           Clerk
                               TENTH CIRCUIT



 WILLIAM C. HOUCHIN, JR.,

             Petitioner-Appellant,

 v.                                                  No. 96-1187

 ARISTEDES W. ZAVARAS, Director,
 Colorado Department of Corrections,

             Respondent-Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                       (D.C. No. CIV-93-K-2651)


Submitted on the briefs:

Jean E. Dubofsky of Jean E. Dubofsky, P.C., Boulder, Colorado, for
Petitioner-Appellant.

Gale A. Norton, Attorney General, and Wendy J. Ritz, Assistant Attorney
General, Denver, Colorado, for Respondent-Appellee.


Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.


HENRY, Circuit Judge.
      Petitioner William C. Houchin, Jr. appeals from an order of the district

court denying his petition for habeas corpus relief filed pursuant to 28 U.S.C.

§ 2254. See Houchin v. Zavaras, 919 F. Supp. 1480 (D. Colo. 1996) (Houchin I).

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. 1



                                      I. Facts

      In March 1984, Mr. Houchin was convicted of two counts of first-degree

murder for killing his father- and mother-in-law, Mr. and Mrs. Naureth. He was

sentenced to two consecutive life sentences without parole.

      Mr. Houchin had been living in the basement apartment in the Naureths’

home, located in Pueblo, Colorado, with his wife Linda, the Naureth’s daughter.

On the night before the murders, Linda informed Mr. Houchin that she wanted a

divorce. Mr. Houchin left the Naureth home, but returned the next day when

Linda and her mother were out. Mr. Naureth was working on his truck in the

garage. Mr. Houchin went to the garage with his gun, where he apparently

struggled with Mr. Naureth. Mr. Naureth was shot twice and Mr. Houchin was

shot once in the arm. Mr. Houchin then went to the basement apartment, changed



      1
             After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

                                         -2-
his shirt and bound his wound, picked up a rifle, returned to the garage, and again

shot Mr. Naureth, this time in the head at close range.

      Mr. Houchin then destroyed furnishings in the house and killed the family

dog. When Linda and Mrs. Naureth returned home, Mr. Houchin was still in the

house with a revolver and a rifle. Mrs. Naureth attempted to flee through the

garage, as Linda attempted to restrain Mr. Houchin. Mr. Houchin shoved Linda

against the wall and she ran out of the house and across the street for help. Mr.

Houchin returned to the garage and fired two shots from his single-action

revolver, one of which hit Mrs. Naureth. She died later at the hospital.

      Mr. Houchin then left. The next morning, Mr. Houchin was found asleep

on the seat of his pickup truck in LaVeta, Colorado, near his parents’ home. He

was bleeding from a gunshot wound to his left arm and one of the arresting

officers noticed the odor of alcohol on his breath. He appeared unconscious

while being transported to the hospital and, initially, at the hospital. He regained

consciousness in a manner which caused the treating physician’s assistant to state

that he was unable to rule out malingering as a cause for Mr. Houchin’s comatose

state. Tests performed at the hospital that morning showed that Mr. Houchin had

a blood alcohol level of .232 and a urine alcohol level of .359.




                                         -3-
                             II. Procedural Background

      The public defender’s office initially represented Mr. Houchin. Later,

Mr. Houchin’s father retained as private counsel Thomas H. Heaton, a

Massachusetts attorney whom the father had met in the course of a real estate

transaction. Mr. Heaton secured local co-counsel, Terry Perlet.

      Following his conviction, Mr. Houchin appealed. The Colorado Court of

Appeals granted a limited remand to permit the district court to consider, under

Colo. R. Crim. P. 35(c), Mr. Houchin’s claim that he had received ineffective

assistance of counsel in violation of the United States and Colorado Constitutions.

The trial court determined that both counsel were ineffective in some respects but

that their overall performance did not amount to constitutionally ineffective

assistance. The Colorado Court of Appeals affirmed but determined that

counsels’ overall performance was below the level of reasonably competent

assistance to which Mr. Houchin was constitutionally entitled. However, the

court held that the outcome of the trial would not have differed had counsels’

performance been competent. The Colorado Supreme Court denied certiorari.

      Mr. Houchin thereafter filed this petition seeking habeas relief in federal

district court. The district court determined that while Mr. Houchin had received

representation which fell below an objective standard of reasonableness, he had

failed to show a reasonable probability that, but for counsels’ errors, his


                                          -4-
convictions would have differed. See Houchin I, 919 F. Supp. at 1496. The court

thus denied habeas relief and Mr. Houchin filed this appeal.



                           III. Certificate of Appealability

      On April 26, 1996, Mr. Houchin filed a notice of appeal and requested a

certificate of probable cause in the district court. The district court granted him a

certificate of appealability. See Houchin v. Zavaras, 924 F. Supp. 115 (D. Colo.

1996) (Houchin II). We initially address whether the district court has the power

vested in it by Congress to grant certificates of appealability.

      On April 24, 1996, the President signed the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214. The

AEDPA eliminated the requirement that petitioners seeking review of state habeas

petitions obtain a certificate of probable cause from either the district court judge

who ruled on his petition or from a circuit judge in order to appeal. See

28 U.S.C. § 2253 (1995). The AEDPA substituted the requirement that

petitioners seeking review of district court judgments in petitions filed pursuant

to either 28 U.S.C. § 2254 or 28 U.S.C. § 2255 seek a certificate of appealability

with its attendant standards prior to appealing.




                                          -5-
      The AEDPA contains conflicting statements regarding whether a petitioner

may seek a certificate of appealability from the district court. The AEDPA, at

28 U.S.C. § 2253(c), provides that:

      (1) Unless a circuit justice or judge issues a certificate of
      appealability, an appeal may not be taken to the court of appeals
      from--

               (A) the final order in a habeas corpus proceeding in which the
            detention complained of arises out of process issued by a State court;
            or

               (B) the final order in a proceeding under section 2255.

      (2) A certificate of appealability may issue under paragraph (1) only
      if the applicant has made a substantial showing of the denial of a
      constitutional right.

      (3) The certificate of appealability under paragraph (1) shall indicate
      which specific issue or issues satisfy the showing required by
      paragraph (2).

      The AEDPA also amended Fed. R. App. P. 22(b) so that it now states:

      Certificate of appealability.--In a habeas corpus proceeding in
      which the detention complained of arises out of process issued by a
      State court, an appeal by the applicant for the writ may not proceed
      unless a district or a circuit judge issues a certificate of appealability
      pursuant to section 2253(c) . . . . If an appeal is taken by the
      applicant, the district judge who rendered the judgment shall either
      issue a certificate of appealability or state the reasons why such a
      certificate should not issue. The certificate or the statement shall be
      forwarded to the court of appeals with the notice of appeal and the
      file of the proceedings in the district court. If the district judge has
      denied the certificate, the applicant for the writ may then request
      issuance of the certificate by a circuit judge. . . . If no express
      request for a certificate is filed, the notice of appeal shall be deemed
      to constitute a request addressed to the judges of the court of appeals.

                                         -6-
      If an appeal is taken by a State or its representative, a certificate of
      appealability is not required.

      The internal inconsistencies between amended § 2253 and Rule 22 are

readily apparent. The district court determined that it had authority to issue the

certificate of appealability based on Rule 22. Houchin II, 924 F. Supp. at 117.

The court noted that § 2253 did not state that “only” circuit justices and judges

were authorized to issue the certificate, thus not expressly “prohibit[ing] district

judges from exercising the authority vested in us by the Rule of Appellate

Procedure.” Id. We agree.

      “In determining the scope of a statute, we look first to its language.”

United States v. Silvers, 84 F.3d 1317, 1321 (10th Cir. 1996) (quotation omitted),

cert. denied, 117 S. Ct. 742 (1997). Section 2253(c)(1) states that “[u]nless a

circuit justice or judge issues a certificate of appealability, an appeal may not be

taken to the court of appeals . . . .” If the adjective “circuit” modifies both

“justice” and “judge,” then a district court judge may not issue a certificate of

appealability. However, Rule 22(b) provides that “a district or a circuit judge”

may issue the certificate of appealability in a § 2254 proceeding.

      In reconciling this apparent conflict between the statute and the rule, we

bear in mind that when construing a statute, the text of each provision should be

read so as to give effect to all of the statute’s provisions. See Homeland Stores,

Inc. v. Resolution Trust Corp., 17 F.3d 1269, 1273 (10th Cir. 1994). If we were

                                          -7-
to determine that the adjective “circuit” necessarily modifies both “justice” and

“judge,” the effect would be to deny the district court judge the authority to issue

a certificate of appealability, thus nullifying the language of the amended Rule

22(b). This we may not do.

      A review of the history of proposals to amend the provisions for issuance

of a certificate permitting appeals from collateral review shows that efforts to

deny district judges the ability to issue such certificates have consistently failed.

See Hunter v. United States, 101 F.3d 1565, 1577-83 (11th Cir. 1996) (examining

efforts by Congress to amend the procedure for obtaining certificates for appeal in

light of Judge Henry J. Friendly’s article Is Innocence Irrelevant?: Collateral

Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142 (1970)).

      Because Congress has historically “chose[n] to leave district judges with

the authority to issue such certificates,” id. at 1577, we hold that, absent express

rejection, Congress likewise intended in the AEDPA that district court judges

would have the authority to issue certificates of appealability. See Emergency

General Order, 1996 U.S. 96-41, at 2 (10th Cir. Oct. 1, 1996).

      We emphasize that our holding extends only to the authority district court

judges retain to issue certificates of appealability in § 2254 appeals under the

provisions of the AEDPA. We decline, at this time, to address whether district

court judges may also issue certificates of appealability in appeals arising under


                                          -8-
§ 2255. Compare Hunter, 101 F.3d at 1575, n.8 (concluding that district judges

may issue certificates of appealability in § 2255 appeals because to hold

otherwise would negate the “basic rule of statutory construction that identical

words [even when] used in different parts of the same act are intended to have the

same meaning.” (quotation omitted)); with United States v. Cota-Loaiza, 936 F.

Supp. 756, 759-61 (D. Colo. 1996) (holding that because Rule 22(b) expressly

limits its applicability to proceedings arising out of processes issued by a state

court, district judges may not issue certificates of appealability in appeals taken

from denials of § 2255 petitions); with United States v. Campos, 932 F. Supp.

1034, 1038 (W.D. Tenn. 1996) (denying a certificate of appealability in appeal

taken from a § 2255 petition “to the extent that a district court has the authority to

rule on the issuance of a certificate of appealability under amended 28 U.S.C.

§ 2253”).




                                          -9-
      As the district court has properly issued a certificate of appealability, we

now address the merits of this appeal. 2



                              IV. Standard of Review

      In reviewing the denial of a petitioner’s habeas petition, 3 we accept the

district court’s factual findings unless they are clearly erroneous and we review

the court’s legal conclusions de novo. Hill v. Reynolds, 942 F.2d 1494, 1495

(10th Cir. 1991). “We review an ineffectiveness [of counsel] claim de novo, as it

presents a mixed question of law and fact.” Davis v. Executive Dir. of Dep’t of

Corrections 100 F.3d 750, 759 (10th Cir. 1996). Because there is a strong

presumption that counsel acted reasonably and represented his client effectively,

we review counsel’s performance with substantial deference. Id.




      2
             The district court declined to specify which issue raised by Mr.
Houchin satisfied the requirement for issuing a certificate of appealability.
However, Mr. Houchin raised only one issue on appeal and, as the court noted,
the opinion denying the petition exceeded thirty-nine pages, thus indicating
Mr. Houchin had “made a substantial showing of the denial of a constitutional
right.” Section 2253(c)(2). The court adequately complied with the requirements
of § 2253(c)(3).
      3
              We need not determine whether § 2244(d) as amended by the
AEDPA to require that a petitioner file his federal collateral action within one
year of the final determination of the criminal action in state court applies to this
case. Mr. Houchin’s petition was filed within this one-year period. Cf. United
States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (holding that one-year
requirement is not retroactive in appeals brought pursuant to § 2255).

                                           -10-
      The AEDPA amended the standards for reviewing state court judgments in

§ 2254 proceedings. Section 2254(e), like the prior § 2254(d), provides that a

state court's determination of a factual issue “shall be presumed to be correct.”

The amended § 2254(e), goes further, however, and states that the habeas

petitioner “shall have the burden of rebutting the presumption of correctness by

clear and convincing evidence.” In addition, § 2254(d) now sets forth the

deference to be afforded the state’s legal determinations:

            An application for a writ of habeas corpus on behalf of a
      person in custody pursuant to the judgment of a State court shall not
      be granted with respect to any claim that was adjudicated on the
      merits in State court proceedings unless the adjudication of the
      claim--

                (1) resulted in a decision that was contrary to, or involved
             an unreasonable application of, clearly established Federal law,
             as determined by the Supreme Court of the United States, or

                (2) 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.

      Thus the AEDPA increases the deference to be paid by the federal courts to

the state court’s factual findings and legal determinations. While courts normally

apply the law in force at the time of their decision, they will not use the new law

if its application would have a retroactive effect. See Landgraf v. USI Film

Prods., 511 U.S. 244, 264 (1994). The Supreme Court has recently accepted

certiorari on this issue. See Lindh v. Murphy, 117 S. Ct. 726 (1997) (accepting


                                         -11-
certiorari on the question of whether § 107(c) of AEDPA fails to specify the

extent to which § 2254(d) is to apply retroactively to pending habeas petitions,

and, if so, whether the court correctly determined that the “habeas-curtailing

statutes apply retroactively?” 65 U.S.L.W. 3483 (Jan. 14, 1997)). We need not

await the Supreme Court’s decision on these issues as Mr. Houchin cannot prevail

under either version of the statute.



                        V. Ineffective Assistance of Counsel

      The Sixth Amendment provides that an accused has the right to assistance

of counsel in all criminal prosecutions. U.S. Const. amend. VI. Courts have

recognized that this right to assistance of counsel includes the right to effective

assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984).

The right to effective counsel exists “in order to protect the fundamental right to a

fair trial.” Id. at 864; see also Nix v. Whiteside, 475 U.S. 157, 175 (1986)

(benchmark of the right to counsel is the fairness of the adversarial proceeding);

United States v. Cronic, 466 U.S. 648, 653 (1984) (the right to trial would be of

little avail without counsel).

      In examining the conduct of counsel, we “judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.” Strickland, 466 U.S. at 690. “Absent some effect of


                                         -12-
challenged conduct on the reliability of the trial process, the Sixth Amendment

guarantee is generally not implicated.” Cronic, 466 U.S. at 658.

      Mr. Houchin contends that, had counsel provided competent assistance, he

would not have been convicted of first degree murder, but would, instead, have

been convicted of second degree murder, with its attendant shorter prison term

and parole considerations. Mr. Houchin challenges the adequacy of trial counsel,

Mr. Heaton and Mr. Perlet, in two respects. He contends counsel failed to subject

the prosecution’s case to meaningful adversarial testing and, therefore, prejudice

should be presumed under the standards announced in Cronic. He also contends

that he showed actual prejudice under the standards set forth in Strickland.



A. Cronic Analysis:

      In Cronic, the Supreme Court held that circumstances can be present which

      are so likely to prejudice the accused that the cost of litigating their
      effect in a particular case is unjustified.

             Most obvious, of course, is the complete denial of counsel.
      The presumption that counsel's assistance is essential requires us to
      conclude that a trial is unfair if the accused is denied counsel at a
      critical stage of his trial. Similarly, if counsel entirely fails to
      subject the prosecution’s case to meaningful adversarial testing, then
      there has been a denial of Sixth Amendment rights that makes the
      adversary process itself presumptively unreliable.

466 U.S. at 658-59 (footnotes omitted).



                                          -13-
      Mr. Houchin contends counsel failed to subject the prosecution’s case to

meaningful adversarial testing because Mr. Perlet failed to clearly articulate

Mr. Houchin’s defenses in his opening statement, failed to proffer jury

instructions to support the defense theories, and should have spent more time with

Mr. Houchin preparing him for trial. He also asserts Mr. Heaton’s apparent

intoxication and improper conduct at trial support a finding of presumed

prejudice.

      The record contains no evidence that Mr. Perlet conveyed to the jury that he

believed Mr. Houchin was guilty or that he, in any other way, abandoned his duty

of loyalty to Mr. Houchin and aligned himself with the prosecution in its efforts

to obtain a conviction. Compare Davis, 100 F.3d at 759 (counsel’s description of

the case as “one of the worst ones I have ever seen” and expression of his hatred

for defendant and the crimes did not constitute abandonment of his client under

the circumstances); with Osborn v. Shillinger, 861 F.2d 612, 629 (10th Cir.1988)

(where defense counsel effectively joined the state to obtain a death sentence,

court concluded that prejudice was “established under any applicable standard”).

      Upon examination of the entire record in light of the standard announced in

Cronic for presumed prejudice, we agree with the district court that, despite the

errors of counsel, the adversarial testing envisioned by the Sixth Amendment

occurred. Prejudice cannot be presumed in this case.


                                        -14-
B. Strickland Analysis

       To establish a claim of ineffective assistance of counsel under Strickland, a

defendant must first show that counsel committed serious errors in light of

prevailing professional norms so that the “representation fell below an objective

standard of reasonableness.” 466 U.S. at 688. Second, the petitioner must

establish that he was prejudiced by counsel’s representation. Id. at 687. We

refrain from using hindsight to second-guess counsel’s tactical decisions. Id. at

689.

       In his petition, Mr. Houchin alleged defense counsel essentially abandoned

his only viable defense, i.e., that he lacked the requisite specific intent for first

degree murder. He asserted counsel (1) failed to investigate forensic evidence

which could have revealed his lack of intent to commit murder when he shot

Mr. and Mrs. Naureth, (2) failed to interview witnesses who could testify about

Mr. Houchin's later conversations concerning his lack of intent to murder the

Naureths; (3) failed to inform the jury during opening statements and closing

arguments of his lack of intent to commit murder; and (4) failed to submit jury

instructions concerning his lack of mens rea. He also alleged Mr. Heaton’s

performance met the first prong of Strickland because he cross-examined one

witness while he was not sober. He further alleged Mr. Perlet violated his




                                          -15-
constitutional right to effective counsel because he failed to meet with

Mr. Houchin sufficiently before trial to prepare him for testifying.

      We agree with the district court that Mr. Houchin’s counsel did provide

inadequate representation, which clearly meets the first prong of Strickland based

on “[Mr.] Perlet’s failure to present a theory of defense to the jury, to submit a

jury instruction concerning mens rea, and to visit [Mr.] Houchin during the course

of the trial and [Mr.] Heaton’s lack of sobriety and cross-examination of witness

Ron Miller at trial.” Houchin I, 919 F. Supp. at 1496. We, therefore, address the

second, prejudice prong of Strickland.

      To establish prejudice, a petitioner must show “a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

      Examination of the record reveals overwhelming evidence of

Mr. Houchin’s intent to kill the Naureths. Nothing can negate the fact that after

Mr. Naureth was shot, Mr. Houchin went back into the house, down into the

basement where he changed his shirt and bound his wound, got his rifle, went

upstairs where he may have had a drink, and then returned to the garage where he

shot Mr. Naureth in the head at close range. Review of the Rule 35 hearing

shows that no additional evidence was or could have been presented which would


                                         -16-
have raised a reasonable doubt that Mr. Houchin was too drunk at that time to

know what he was doing.

      Likewise, Mr. Houchin shot Mrs. Naureth twice with a single-action

revolver which meant that he had to pull the hammer back each time he pulled the

trigger in order to fire the gun. Witnesses who testified at the Rule 35 hearing

indicated there was no definite sign that Mr. Houchin was drunk the night of the

shootings and that attempts to extrapolate back to his blood alcohol level from the

level found the next morning were too speculative. Expert witnesses at the Rule

35 hearing concluded that the third shot to Mr. Naureth was the fatal one because

Mr. Naureth wrote “I love fam” in the dust on the garage floor and because of the

amount of blood from the head wound, both of which indicated he was alive when

shot in the head, a shot which would have been instantly fatal.

      The evidence of intent was overwhelming. Even had counsels’

performances not been below the objective standard of reasonableness, no

reasonable probability exists that the outcome of Mr. Houchin’s trial would have

been different. In the absence of prejudice, we do not find reversible error.

      The judgment of the United States District Court for the District of

Colorado is AFFIRMED.




                                        -17-
