                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                December 15, 2011
                   UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 ROSCOE FORD,
                                                        No. 11-1316
              Petitioner - Appellant,
       v.                                              (D. Colorado)
 TRAVIS TRANI, Warden, L.C.F.;                (D.C. No. 1:09-CV-01726-MSK)
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Applicant Roscoe Ford, a Colorado prisoner, filed an application for relief

under 28 U.S.C. § 2254 in the United States District Court for the District of

Colorado. The district court denied the application. Applicant seeks a certificate

of appealability (COA) from this court to appeal the denial. See 28 U.S.C.

§ 2253(c)(1)(A) (requiring a COA to appeal the denial of a § 2254 application).

We deny his application for a COA and dismiss the appeal.

I.    BACKGROUND

      An information filed in Colorado state court in 1997 charged Applicant

with aggravated robbery and alleged that he was an habitual criminal. Evidence
introduced at trial, as recounted by the Colorado Court of Appeals, showed the

following:

             The robber entered the line at [a Safeway] store’s customer
      service counter and put on a pair of sunglasses. When he reached the
      front of the line, he placed a brown paper bag on the counter, lifted
      his T-shirt to reveal a gun in the waistband of his pants, and ordered
      one of the two clerks on duty to fill the bag with money.
             A third clerk followed the robber into the parking lot after the
      robbery. The robber ordered the clerk to stop, fired a gunshot into
      the air, and fled in a maroon car driven by a black female.
             The day after the robbery, one of the customer service clerks
      viewed a photo lineup from which she identified defendant as the
      robber. This clerk, who had seen the robber without his sunglasses,
      noticed that he had a “strange, lazy, blind” eye that was “very
      noticeable.” Defendant is blind in his right eye.
             The other customer service clerk, who had not seen the robber
      without sunglasses, was unable to make a positive identification after
      viewing the lineup. The clerk who followed the robber into the
      parking lot also failed to identify him.
             During their investigation, police learned that a man
      resembling the robber had eaten a meal in a nearby pizza shop
      around the time the robbery occurred. The employee who served the
      man identified defendant as the customer.
             Police arrested defendant in a motel parking lot six days after
      the robbery, as he stood beside a maroon car that belonged to his
      female companion. The female informed police that she was the
      driver of the getaway car in the Safeway robbery.
             The driver of the getaway car, who traveled to defendant’s trial
      from her home in Massachusetts, received use immunity for her
      testimony. She testified that she drove defendant to the Safeway
      store with the understanding that he would pick up a job application.
      Defendant returned to the car after twenty minutes with a bag
      concealed in his coat. He was agitated and told the witness to
      “[h]urry and drive.” The driver admitted on cross-examination that,
      when the robbery occurred, she was a crack addict and on probation
      for possessing drug paraphernalia.
             In addition to the driver’s testimony, the prosecution presented
      evidence of a similar robbery that occurred at another Safeway
      approximately eight months before the crime charged. On that

                                        -2-
       occasion, a man wearing sunglasses placed a brown paper bag and a
       bank deposit slip on the customer service counter, opened his jacket
       to reveal a gun in the waistband of his pants, and threatened to shoot
       the clerk if he did not fill the bag with money. The clerk later picked
       defendant as the robber from a photo lineup. A witness in the
       parking lot took down the license plate number of the car in which
       the robber escaped. The car belonged to defendant’s mother, who
       had loaned it to defendant when the robbery occurred. When police
       searched the car a week after the robbery, they found clothing similar
       to that worn by the robber, as well as bank deposit slips identical to
       the one the robber placed on the counter.

Judgment Affirmed, People v. Ford, No. 99CA2072, at 1–3 (Colo. App. Aug. 23,

2001) (unpublished) (hereinafter “People v. Ford”) (R., Vol. One App. at 4–6).

       Applicant’s first trial ended in a mistrial when the jury could not agree on a

verdict. At his second trial the getaway driver did not testify. Her testimony at

the first trial was read to the jury, however, after the trial court, found her to be

unavailable. The jury convicted Applicant of aggravated robbery and the court

adjudicated him to be an habitual criminal under Colorado law. He was sentenced

to life in prison.

       The Colorado Court of Appeals affirmed the conviction, and the Colorado

Supreme Court denied Applicant’s petition for a writ of certiorari. Applicant then

filed a postconviction motion under Colorado Rule of Criminal Procedure 35(c).

The trial court denied the motion but the Colorado Court of Appeals reversed in

part and remanded the case for an evidentiary hearing on several issues.

Applicant sought additional relief in a petition for certiorari to the Colorado

Supreme Court, but it was denied. The trial court then conducted evidentiary

                                           -3-
hearings and denied relief. Applicant appealed again but the appeals court

affirmed and the state supreme court denied certiorari.

      Applicant then filed his § 2254 application asserting 11 claims: (1) that the

prosecution violated his rights under Brady v. Maryland, 373 U.S. 83 (1963),

because at his first trial it did not disclose until the closing argument the issuance

of an arrest warrant for the getaway driver; (2) that he was deprived of his right to

confront witnesses at the second trial because the getaway driver’s testimony

from the first trial was read to the jury; (3) that his right to a fair trial was denied

when he was prevented from introducing evidence of the getaway driver’s

pending felony theft charge; (4) that his right to a fair trial was denied because

the trial court refused to allow expert testimony regarding the inherent

unreliability of eyewitness identification; (5) that his adjudication as an habitual

criminal was improper because one of the prior convictions used to support that

adjudication had resulted from the denial of his right to conflict-free counsel; (6)

that the prosecution engaged in misconduct by telling the getaway driver not to

appear for the second trial; (7) that his appellate counsel was ineffective in failing

to raise a claim that the trial court abused its discretion in denying two challenges

for cause during voir dire; (8) that his appellate counsel was ineffective because

she failed to challenge the trial court’s admission of evidence of three uncharged

robberies; (9) that his appellate counsel was ineffective because she failed to raise

a violation of Batson v. Kentucky, 476 U.S. 79 (1986); (10) that his right to

                                           -4-
counsel was violated when counsel was not allowed to be present during a

postindictment video lineup; and (11) that he was denied a fair trial because the

trial court refused to appoint a special prosecutor.

       In this court Applicant explicitly abandons his last three claims and pursues

only the first eight.

II.    DISCUSSION

       A COA will issue “only if the applicant has made a substantial showing of

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

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [application] 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). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes 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,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

                                          -5-
determination of the facts in light of the evidence presented in the State court

proceeding,” id. § 2254(d)(2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. Additionally, AEDPA requires

deference to state-court fact findings. Such findings are presumed correct and

“[t]he applicant shall have the burden of rebutting the presumption of correctness

by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). For those of

Applicant’s claims that the Colorado Court of Appeals adjudicated on the merits,

“AEDPA’s deferential treatment of state court decisions must be incorporated into

our consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935,

938 (10th Cir. 2004).


                                         -6-
      We now turn to Applicant’s eight claims for relief pursued in this court.

      (1) Applicant contends that the prosecution violated his rights under Brady,

373 U.S. 83, because at his first trial it did not disclose until the closing argument

the issuance of an arrest warrant for the getaway driver on the day that she

testified. He argues that if the warrant had been disclosed earlier, he could have

used it to impeach the driver’s credibility by showing her “propensity for

dishonesty” and her motivation to get “a better plea bargain than that which was

disclosed,” Traverse to Resp’ts’ Answer to Habeas Appl. at 5, Ford v. Trani,

No. 09-cv-01726-MSK-KMT (D. Colo. April 28, 2010). The Colorado Court of

Appeals rejected this argument because the undisclosed information was not

material. It said that evidence of a witness’s arrest is admissible only to show

how it created a motive or bias for the witness’s testimony, but the warrant could

not have influenced her because there was no evidence that she knew about it

until after she testified. The district court said that there was no clear and

convincing evidence that the witness knew of the warrant earlier and concluded

that the state court’s ruling complied with federal law.

      (2) Applicant asserts deprivation of his right to confront witnesses at the

second trial because the getaway driver’s testimony from the first trial was read to

the jury. He claims that (a) the witness was available and (b) her previous

testimony was unreliable, making the prior testimony inadmissible under Ohio v.

Roberts, 448 U.S. 56, 66 (1980). The Colorado Court of Appeals reviewed the

                                          -7-
evidence regarding the government’s extensive efforts to locate the witness and

ruled that the trial judge had not abused its discretion in finding her unavailable.

It also ruled that her testimony was reliable because it was testimony at a trial in

which “[Applicant] was represented by counsel, who effectively cross-examined

the witness.” People v. Ford, at 8 (R., Vol. One App. at 11). Although Applicant

asserted in district court that the witness was made unavailable by the efforts of

the prosecution, that issue had been explored in an evidentiary hearing before the

trial court on remand from the Colorado Court of Appeals. After hearing

testimony of the getaway driver, the trial court found that she did not wish to

testify and the government was trying to get her to testify. The district court

found that Applicant did not rebut the presumption in favor of the state court’s

factual findings. The court also concluded that the state court’s ruling on

reliability was neither contrary to nor an unreasonable application of clearly

established federal law.

      (3) Applicant contends that his right to a fair trial was violated when he

was prevented from introducing evidence at his second trial of the getaway

driver’s pending felony theft charge. As noted above, however, the Colorado

Court of Appeals ruled that evidence of the charge was not material because the

witness did not know of the charge when she testified at the first trial. Citing Fox

v. Ward, 200 F.3d 1286, 1296–97 (10th Cir. 2000) (an evidentiary error justifying

habeas relief must have been “so grossly prejudicial that it fatally infected the

                                          -8-
trial and denied the fundamental fairness that is the essence of due process.”

(internal quotation marks omitted)), the district court ruled that the evidentiary

exclusion was not fundamentally unfair.

      (4) Applicant argues that his right to a fair trial was denied because the trial

court prevented him from introducing expert testimony regarding the inherent

unreliability of eyewitness identification. The Colorado Court of Appeals ruled

that the trial court had not abused its discretion in excluding the testimony. It

noted the trial court’s reasoning that multiple eyewitnesses would identify

Applicant at trial and that the jurors would be able to view the photo lineup that

the witnesses were shown by the police; and it added that “the prosecution’s

corroborating evidence—which included the getaway driver’s testimony and the

evidence of defendant’s involvement in a similar robbery at a different

Safeway—diminished the probative value of the expert testimony.” People v.

Ford, at 10–11 (R., Vol. One App. at 14). The district court agreed with the state

court’s reasoning, and also observed that the reliability of the eyewitnesses was

tested through effective cross-examination, so the exclusion of the expert did not

render the trial fundamentally unfair.

      (5) Applicant contends that his adjudication as an habitual criminal violated

his constitutional rights because one of the prior convictions used to support that

adjudication—a 1971 conviction in Missouri for first-degree murder—had been

obtained in violation of his right to conflict-free counsel. He argued that his

                                          -9-
attorney in that case also represented his codefendant and therefore did not raise

the defense that the codefendant was the shooter and that Applicant did not know

what the codefendant intended to do. The Colorado Court of Appeals ruled that

the record supported the trial court’s determination that there was no actual

conflict of interest in the Missouri case. The district court concluded that, under

Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001), Applicant

could not contest his previous conviction in a § 2254 challenge to his Colorado

sentence because he was represented by counsel in the Missouri case.

      (6) Applicant argued that the prosecution engaged in misconduct by telling

the getaway driver not to appear for the second trial. But, as stated previously,

the Colorado Court of Appeals concluded that the record supported the trial

court’s determination that the getaway driver decided on her own accord not to

appear for the second trial. The district court found that Applicant did not present

clear and convincing evidence to the contrary.

      (7) Applicant asserts that his appellate counsel was ineffective for failing to

claim that the trial court abused its discretion in denying challenges for cause of

two jurors—a retired police officer and an employee of a Safeway store that

Applicant had allegedly robbed. In his second postconviction appeal the

Colorado Court of Appeals carefully reviewed the voir dire of the two jurors and

ruled that the record supported the trial court’s determination that the two jurors

were not subject to challenges for cause so that the claim would have been

                                         -10-
rejected on appeal. The district court found that the state court ruling complied

with federal law.

      (8) Finally, Applicant contends that his appellate counsel was ineffective

because she failed to challenge the trial court’s admission of evidence of three

uncharged robberies. In his second postconviction appeal the Colorado Court of

Appeals had agreed with the trial court’s conclusion that the evidence was

admissible under state rules of evidence; the appeals court also determined that

there was not a reasonable probability that he would have prevailed on this issue

on direct appeal. It pointed to the striking similarities of the robberies, as

probative of identification, and the lack of unfair prejudice. The district court,

while noting that evidence of only one prior robbery was admitted at the second

trial, affirmed the denial of this claim because Applicant failed to demonstrate

that the state court unreasonably applied the standard for ineffective-assistance-

of-counsel claims.

      On all eight claims, no reasonable jurist could dispute the district court’s

conclusion that the state court’s ruling was not based on an unreasonable

determination of the facts and was neither contrary to nor involved an

unreasonable application of clearly established federal law. All we add is an

observation regarding claim 4. Applicant has not explained in this court what his

expert on eyewitness identification could have said that would have been useful to

challenge the specific identifications at trial. Only one witness other than the

                                          -11-
getaway driver identified Applicant as the culprit, 1 and a defense investigator

testified that the eyewitness had admitted that her sole means of identification

was the culprit’s bad eye.

III.   CONCLUSION

       We GRANT Applicant’s motion to proceed in forma pauperis, but DENY

his application for a COA and DISMISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




       1
       The identification by the pizza-shop employee mentioned in the opinion by
the Colorado Court of Appeals was simply a description of the customer as a
black man with a bad eye.

                                        -12-
