                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 5, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 TOMAS M. GARCIA,

       Petitioner - Appellant,
                                                       No. 09-1255
 v.                                            (D.C. No. 07-CV-00781-CMA)
                                                         (D. Colo.)
 STEVE HARTLEY, Warden, Limon
 Correctional Facility; THE
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.



      Defendant-Appellant Tomas M. Garcia, a Colorado state inmate represented

by counsel, seeks a certificate of appealability (COA) to appeal the district

court’s denial of his habeas corpus petition with prejudice. 28 U.S.C. § 2254.

Because Mr. Garcia has not made “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the

appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

      In 2002, a jury convicted Mr. Garcia of, inter alia, kidnapping, sexual

assault, and false imprisonment. See People v. Garcia, No. 02CA1027, slip op. at
1 (Colo. Ct. App. Dec. 22, 2005) (unpublished decision) (Aplt. App. at 29). The

court sentenced him to 84 years to life in prison. Id. On direct appeal, the

Colorado Court of Appeals affirmed the judgment and sentence, and the Colorado

Supreme Court denied certiorari. In 2007, Mr. Garcia filed a federal habeas

petition, arguing that the warrantless search of his property violated the Fourth

Amendment and that he received ineffective assistance from his trial counsel.

Aplt. App. at 12-22. The district court denied the petition in a thorough decision

and denied a COA. Garcia v. Hartley, No. 07-cv-00781-CMA, 2009 WL

1392082, at *17 (D. Colo. May 15, 2009); R. Doc. 38. Mr. Garcia appealed.

Aplt. App. at 185. Although not required to do so, the State filed a response

brief. See 10th Cir. 22.1(D). Pursuant to Fed. R. App. P. 22(b)(2) and 10th Cir.

R. 22.1(A), we deem Mr. Garcia’s notice of appeal a renewed application for a

COA, and address the threshold issue of a COA based upon the briefs submitted.

      In order for this court to grant a COA, Mr. Garcia must make “a substantial

showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). On

appeal, Mr. Garcia argues that the district court erred in denying the petition and

dismissing the action with prejudice without first conducting an evidentiary

hearing. He focuses on the claim that trial counsel was deficient for failing to

interview and call certain witnesses that, if believed, would have resulted in an

acquittal on at least one of the counts of conviction. To obtain a COA, Mr.

Garcia must demonstrate that reasonable jurists could debate both the propriety of

                                         -2-
an evidentiary hearing and the merits of his underlying constitutional claim.

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack, 529 U.S. at 484.

      Mr. Garcia would be entitled to an evidentiary hearing to prove the factual

allegations in his petition if those factual allegations (if true) would entitle him to

relief. Schiro v. Landrigan, 550 U.S. 465, 474 (2000). An evidentiary hearing is

not required if the factual allegations are contravened by the existing record or

that record precludes relief. Id. As to issues resolved by the state court, any

decision whether to grant an evidentiary hearing must consider the deferential

standards attendant to our review. Id. at 747-75; 28 U.S.C. § 2254(d).

      Our review of the district court’s decision whether to grant an evidentiary

hearing in a habeas matter would be for an abuse of discretion. Torres v. Mullin,

317 F.3d 1145, 1161 (2003). Given our standard of review, the district court’s

procedural decision not to hold an evidentiary hearing is not reasonably

debatable. We have carefully considered the facts marshaled by counsel to

suggest that an evidentiary hearing was required, Aplt. Br. at 16-19, but must

consider those facts against a backdrop of the entire record. None of these facts

undermine the state court’s conclusion (and that of the federal district court) that

trial counsel’s alleged failure to uncover and present some evidence was either

strategic (given serious credibility issues) or reasonable because it would have

been inadmissible or cumulative. See Wood v. Allen, No. 08-9156, 2010 WL

173369, at *6 (U.S. Jan. 20, 2010). Morever, the district court properly

                                          -3-
considered the strength of the evidence against Mr. Garcia (including testimony

from two victims) in concluding that he had not established prejudice. See

Strickland v. Washington, 466 U.S. 668, 698-99 (1984).

      Accordingly, we DENY a COA and DISMISS the appeal.

                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                       -4-
