                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            June 24, 2005
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 TIMOTHY VIALPANDO,

           Petitioner-Appellant,

 v.                                                        No. 04-1230
                                                       (D.C. No. 99-M-1560)
 RICHARD SOARES and THE                                      (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

           Respondents-Appellees.


            ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


          State prisoner Timothy Vialpando requests a certificate of appealability

(“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition. 1 For substantially



      Vialpando’s petition was filed after April 24, 1996, the effective date of the
      1

Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Vialpando to show “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,
                                                                        (continued...)
the same reasons set forth by the district court, we DENY Vialpando’s request for

a COA and DISMISS.

       Following a four day jury trial, Vialpando was convicted of sexual assault

on a child and sexual assault in the first degree in Colorado state courts. His

conviction was upheld on direct appeal. In 1989, Vialpando filed a pro se motion

for post-conviction relief under Colorado Rule of Criminal Procedure 35(c), in

which he alleged, among other errors, that his counsel was ineffective because he

failed to personally interview the victim’s mother, author of an exculpatory letter,

and failed to offer her testimony at trial. Vialpando argued that the victim’s

mother would have testified that her daughter admitted to falsely accusing

Vialpando, and that it was therefore professionally unreasonable for trial counsel

not to call the mother as a witness. Vialpando also claimed that, notwithstanding

any credibility questions the prosecution could have raised, there was a

reasonable probability that if the victim’s mother had been called, the result of the

trial would have been different. Following a hearing on the motion for post-

conviction relief in 1997 with appointed counsel, the district court denied relief.



   1
     (...continued)
484 (2000) (quotations omitted). Because the district court denied Vialpando a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court. Vialpando has contemporaneously filed an appeal of a separate habeas
denial challenging his conviction for sexual assault on a child, No. 04-1229,
which is the subject of an order on this same date.

                                         -2-
The Colorado Court of Appeals (“CCA”) affirmed the denial of Vialpando’s

request for Rule 35(c) relief, and the Colorado Supreme Court denied certiorari.

       Under AEDPA, if a claim is adjudicated on the merits in state court, we

will grant habeas relief only if that adjudication 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 “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

       In response to Vialpando’s allegations of ineffective assistance of counsel,

the district court denied relief because Vialpando failed to demonstrate that the

CCA applied the wrong legal standard, or that its decision was based on an

unreasonable determination of facts in light of the evidence presented at the state

court proceeding. We agree with the district court’s conclusion. 2 In evaluating

the ineffective assistance of counsel claim in collateral state court proceedings,

both the trial court and CCA identified and applied the two-part test announced in



   2
     Vialpando also asserts that the district court abused its discretion in failing to
hold an evidentiary hearing. Although a hearing is required “[u]nless the motion
and the files and records of the case conclusively show that the prisoner is
entitled to no relief,” § 2255, we will not disturb the trial court’s decision unless
we have a “definite and firm conviction that the lower court made a clear error of
judgment or exceeded the bounds of permissible choice in the circumstances.”
McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991). After a
review of the record, we have no such conviction.

                                          -3-
Strickland v. Washington, 466 U.S. 668 (1984), and concluded that the decision

not to personally interview the victim’s mother, or call her as a witness was

purely a tactical decision. This conclusion was based in part on the trial court’s

evaluation of the letter upon which Vialpando’s claim was based:

      any experienced trial lawyer . . . taking a good look at [the letter]
      would view this witness – potential witness, [the victim’s mother], as
      a serious problem. I mean there’s enough ammunition in here for
      cross-examination for someone to spend, I suppose, a day or two on,
      if they really wanted to press it. In any event, this is a purely tactical
      decision, which the Court finds to be a perfectly adequate basis. I
      mean you can tell from reading this letter that this person would be a
      disaster on the witness stand. I can figure that much out without ever
      having laid eyes on her. In any event, that decision is purely a
      tactical one, within the purview of the defense counsel, and not a
      decision to be made by the client.

      The district court found no error in the state courts’ application of

Strickland. Because we do not discern an unreasonable determination of facts or

an unreasonable application of the standards for determining ineffectiveness of

counsel in the state courts’ evaluation of this claim, we agree.

      After careful review of Vialpando’s application, the district court’s order

denying relief, and the material portions of the record on appeal, and after

according the appropriate deference due under AEDPA, we conclude that

Vialpando’s claims are without merit. Accordingly, Vialpando has failed to make

“a substantial showing of the denial of a constitutional right.” § 2253(c)(2).




                                          -4-
Vialpando ’s application for a COA is DENIED and the appeal is DISMISSED.

                                          ENTERED FOR THE COURT

                                          Carlos F. Lucero
                                          Circuit Judge




                                    -5-
