                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                                    TENTH CIRCUIT                             March 3, 2015

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
ALEX HOMER LINZY

               Petitioner - Appellant,

v.                                                           No. 14-1504
                                                    (D.C. No. 1:14-CV-00962-RM)
WARDEN FRANCIS FAULK; THE                                     (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

               Respondents- Appellees.




            ORDER DENYING MOTION FOR LEAVE TO PROCEED
                   WITHOUT PREPAYMENT OF FEES
              DENYING CERTIFICATE OF APPEALABILITY,
                      AND DISMISSING APPEAL


Before MATHESON, O'BRIEN, and PHILLIPS, Circuit Judges.


      Alex Homer Linzy is a Colorado state prisoner. Proceeding pro se,1 he wants to

appeal from the denial of his 28 U.S.C. § 2254 habeas petition. The district judge denied

a certificate of appealability (COA). He has renewed his request with this Court, which

we too deny.




      1
        We liberally construe Linzy’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
       Linzy pulled his former girlfriend from her car and dragged her down the street

into a vacant house where he beat and raped her. He was convicted by a jury of second

degree kidnapping, sexual assault, and third degree assault. He was adjudicated a

habitual criminal and sentenced to 96 years imprisonment on the kidnapping conviction,

a consecutive 48 years to life imprisonment on the sexual assault conviction, and a

concurrent 2 years imprisonment on the assault conviction. His convictions and

sentences were affirmed on direct appeal and his state court petitions for post-conviction

relief (two) were unsuccessful. He then sought relief in federal court, filing a pro se §

2254 habeas petition raising twelve claims.

       The district judge resolved all twelve claims but we are concerned only with those

raised in his COA application, all ineffective assistance of counsel claims. With respect

to trial counsel, he claimed counsel should have challenged the chain of custody of the

rape kit performed on the victim, objected to the testimony of the State’s DNA expert for

lack of foundation under People v. Valencia, 257 P.3d 1203 (Colo. Ct. App. 2011), and

raised a sufficiency of the evidence argument regarding the asportation element of the

kidnapping conviction. As for appellate counsel, he said counsel rendered deficient

performance by failing to raise the sufficiency of the evidence argument on appeal.2

       The district judge concluded Linzy’s ineffective assistance of trial counsel claims

were procedurally defaulted because they were either (1) determined by the state courts

to be procedurally barred as untimely or successive (independent and adequate state

       2
           In the district court, these claims were Claims 3(f), 7 and 9.


                                               -2-
grounds) or (2) not fairly presented to the state courts and would now be procedurally

barred under Colorado law (anticipatory procedural bar).

       Linzy argued his procedural default should be excused because the state court

denied his request for appointed post-conviction relief counsel. See Martinez v. Ryan, ---

U.S. ---, 132 S. Ct. 1309, 1320 (2012) (“Where, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding, a

procedural default will not bar a federal habeas court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review collateral proceeding, there was no

counsel or counsel in that proceeding was ineffective.”).3 The judge determined the lack

of counsel did not excuse the default because his claims were not “substantial,” i.e., they

lacked “some merit.” Id. at 1318.

       Although the rape kit was originally mislabeled (and consequently misplaced), the

error was rectified before DNA analysis of the kit’s vaginal swabs occurred. Moreover,

there was no evidence, other than speculation, of any tampering. The district judge also

       3
         While the Colorado courts have “expressed a preference” for defendants to raise
ineffective assistance of trial counsel claims in collateral review proceedings, they do not
require defendants to do so. People v. Thomas, 867 P.2d 880, 886 (Colo. 1994); see also
People v. Price, 240 P.3d 557, 565 (Colo. Ct. App. 2010) (“Because of the need for a
developed factual record, an ineffective assistance of counsel claim should ordinarily be
raised in a postconviction proceeding, not on direct appeal. Only in rare instances are
ineffective assistance of counsel claims presented so that they need no further factual
development prior to review on direct appeal.”) (citation and quotations omitted).
Nevertheless, the rule in Martinez has been extended to circumstances where the “state
procedural framework, by reason of its design and operation, makes it highly unlikely in
a typical case that a defendant will have a meaningful opportunity to raise a claim of
ineffective assistance of trial counsel on direct appeal.” Trevino v. Thaler, --- U.S. ---,
133 S. Ct. 1911, 1921 (2013). We assume Martinez applies.


                                             -3-
concluded the State had presented sufficient foundation for the admission of the DNA

expert’s testimony. According to that testimony, a forensic scientist from the Denver

Police Department Crime Lab tested the vaginal swabs collected from the victim and

found semen. The DNA expert then extracted DNA from the semen, compared it to the

DNA sample taken from Linzy, and concluded they matched. Apparently the DNA

expert tested the semen sample extracted from the swabs by the forensic scientist, but did

not test the vaginal swabs themselves. In other circumstances such a possible break in

the chain of custody might be significant, but here there was sufficient evidence

connecting the vaginal swabs to the victim. Indeed, defense counsel had so stipulated.4

Finally, the judge noted that trial counsel had raised a sufficiency of the evidence


       4
          Compare Valencia, 257 P.3d at 1206 (concluding trial court abused its discretion
by allowing an expert to testify as to results of her testing on specimens taken from the
defendant and victim where there was no evidence, other than the expert’s own
conclusory statements, establishing the specimens came from the defendant and victim).
Evidentiary rulings by state courts generally do not present a viable federal habeas issue.
See Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001) (“As a general matter, federal
habeas corpus relief does not lie to review state law questions about the admissibility of
evidence, and federal courts may not interfere with state evidentiary rulings unless the
rulings in question rendered the trial so fundamentally unfair as to constitute a denial of
federal constitutional rights.”) (citation and quotations omitted); see also Estelle v.
McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for errors
of state law.”) (quotations omitted).
       Those considerations aside, Linzy raises Valencia to support his ineffective
assistance of trial counsel claim, a constitutional claim cognizable under § 2254. See
Strickland v. Washington, 466 U.S. 668, 685-86 (1984). But, even if legally relevant,
Valencia does not help him. As the district judge concluded, that case is not factually
comparable because of trial counsel’s stipulation in this case.
      To the extent Linzy objected to counsel’s decision to stipulate, the judge decided
Linzy had not shown prejudice under Strickland because he had not provided any
evidence the semen sample tested was not obtained from the victim.


                                            -4-
argument by moving for a directed verdict at the close of the State’s evidence.

Alternatively, he found the victim’s testimony, which was corroborated by the police and

an examining physician, to have been sufficient to support the asportation element of

kidnapping.

       As to the ineffective assistance of appellate counsel claim, the Colorado Court of

Appeals determined the evidence to be sufficient to support the kidnapping conviction

and therefore counsel was not ineffective for failing to challenge it on appeal.5 Upon

review of the state court record the district judge agreed, based on Jackson v. Virginia,

443 U.S. 307, 319 (1979) (stating evidence is sufficient to support a conviction if, “after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt”).

Appellate counsel’s failure to raise a sufficiency of the evidence argument on appeal did

not constitute deficient performance or prejudice.

       Linzy must obtain a COA to pursue an appeal. Miller-El v. Cockrell, 537 U.S.

322, 335-36 (2003). A COA will issue “only if the applicant has made a substantial


       5
        In rejecting the ineffective assistance of appellate counsel claim, the Colorado
Court of Appeals said:
       Linzy has failed to show meritorious grounds for reversal. Sufficient evidence in
       the record, including the victim’s testimony and evidence of the severe scraping
       and bruising which experts said resulted from the victim being dragged to the
       house where Linzy locked her, supports the jury’s verdict . . . .
              Thus, we conclude Linzy has not shown how he was prejudiced by
       appellate counsel’s conduct . . . .
(R. at 524 (citation omitted).)


                                            -5-
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, he must demonstrate “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, 484 (2000) (quotations omitted). Because his petition was

denied in part on procedural grounds, he faces a double hurdle—he must establish “that

jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether

the district court was correct in its procedural ruling.” Id. (emphasis added). “Where a

plain procedural bar is present and the district court is correct to invoke it to dispose of

the case, a reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed further.” Id.

       In cogent orders the district judge thoroughly and correctly addressed and resolved

Linzy’s ineffective assistance of trial counsel claims. They are procedurally defaulted

and Linzy failed to show those claims are “substantial” under Martinez. Like the

Colorado Court of Appeals, the district judge concluded appellate counsel was not

ineffective. Federal inquiry is limited to whether the state court’s decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” in this case, Strickland v.

Washington, 466 U.S. 668 (1984), 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. §




                                             -6-
2254(d); see also Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th Cir. 2003). The

Colorado Court of Appeals’ decision is neither; Linzy is not entitled to relief.6

       We DENY A COA and DISMISS this matter.7 Since we have addressed the

request for a COA, Linzy’s companion request to proceed on appeal in forma pauperis or

ifp (that is without prepayment of fees) is moot. Linzy must pay the full amount of all




       6
         The district judge should not have explicitly decided the ineffective assistance of
appellate counsel claim de novo (i.e., no deficient performance or prejudice).
Determination of that claim should have rested on whether the Colorado Court of
Appeals’ resolution of that claim was contrary to or an unreasonable application of
Strickland, a substantially more deferential standard. See Harrington v. Richter, 562 U.S.
86, 105 (2011) (“Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is . . . difficult. The standards created by Strickland and §
2254(d) are both highly deferential and when the two apply in tandem, review is doubly
so.”) (citations and quotations omitted). Linzy can hardly be heard to complain that he
received a more substantial review than he deserved.
       7
         Linzy also requests a COA to challenge the denials of his (1) motion for an
evidentiary hearing, (2) motion for a copy of the state court record without cost under 28
U.S.C. § 2250, and (3) motion to expand the record pursuant to Rule 7 of the Rules
Governing Section 2254 Cases. But “a COA is only appropriate in circumstances
implicating constitutional error.” United States v. Eatman, 569 F. App’x 626, 631-32
(10th Cir. 2014) (unpublished). The denials of these motions are not of constitutional
magnitude. Moreover, to the extent any of these motions sought to place new evidence
before the federal court that was not part of the state court record, they were properly
denied under Cullen v. Pinholster, --- U.S. ---, 131 S. Ct. 1388, 1398 (2011) (“[R]eview
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.”).


                                            -7-
filing and docketing fees to the Clerk of the District Court. Payment is immediately due.8



                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




       8
          28 U.S.C. § 1915(a)(1) does not relieve a party from paying the filing and
docketing fees. As it plainly states, the statute only excuses “prepayment” of the fees.
See 28 U.S.C. § 1915(a)(1); see also Flint v. Haynes, 651 F.2d 970, 972 (4th Cir. 1981)
(“The use of the word ‘prepayment’ in [§ 1915(a)(1)] indicates that Congress did not
intend to waive forever the payment of costs, but rather it intended to allow qualified
litigants to proceed without having to advance the fees and costs associated with
litigation.”). Irrespective of how his ifp request is treated Linzy must pay the full amount
of the filing and docketing fees.


                                            -8-
