FILED
United States Court of Appeals
Tenth Circuit
June 26, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
JOHN GLENN SNYDER,
Petitioner - Appellant,
v. No. 08-1408
(D. Colorado)
JOE ORTIZ, and THE ATTORNEY (D.C. No. 06-CV-01488-WYD)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Petitioner, John Glenn Snyder, seeks a certificate of appealability (“COA”)
from this court so he can appeal the district court’s denial of the application for
writ of habeas corpus he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C.
§ 2253(c)(1)(A) (providing that no appeal may be taken from a final order
disposing of a § 2254 application unless the petitioner first obtains a COA).
Because Snyder has not “made a substantial showing of the denial of a
constitutional right,” this court denies his request for a COA and dismisses this
appeal. Id. § 2253(c)(2).
In 2002, Snyder was charged with one count of sexual assault on a child by
a person in a position of trust and one count of sexual assault on a child by a
person in a position of trust–pattern of abuse. Pursuant to the terms of a written
plea agreement, he pleaded guilty to sexual assault on a child by a person in a
position of trust and the remaining charge was dismissed. The plea agreement set
out the possible penalties for the offense of conviction: (1) an indeterminate term
of four years’ to life imprisonment or (2) in lieu of a sentence of imprisonment,
an indeterminate term of probation from ten years to life. The trial court
sentenced Snyder to an indeterminate term of six years’ to life imprisonment.
Snyder sought post-conviction relief pursuant to Rule 35 of the Colorado
Rules of Criminal Procedure. His Rule 35 motion was premised on his assertion
that the sexual assault incident to which he pleaded guilty occurred before
November 1, 1998, and, thus, he should not have been sentenced pursuant to the
Lifetime Supervision of Sex Offenders Act. After an evidentiary hearing at which
Snyder sought to develop a factual basis for his allegations, the state court denied
relief. The Colorado Court of Appeals affirmed the judgment of the state district
court, rejecting Snyder’s claims that (1) his sentence was illegal and violated ex
post facto principles because the Lifetime Supervision of Sex Offenders Act only
applies to offenses committed after November 1, 1998; (2) the trial court abused
its discretion by denying his Rule 35(b) motion for reconsideration of his
sentence; (3) the trial court erred by denying his Rule 35(c) motion and request to
withdraw his guilty plea because it was not entered into knowingly and
-2-
voluntarily; and (4) the trial court erred in concluding he did not receive
ineffective assistance of counsel.
Snyder filed the instant § 2254 application on August 1, 2006. The district
court denied relief on October 7, 2008. 1 This court cannot grant Snyder a COA
unless he can 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). In evaluating whether Snyder has carried his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). Snyder is not required to demonstrate that his appeal will succeed to
be entitled to a COA. He must, however, “prove something more than the
absence of frivolity or the existence of mere good faith.” Id. (quotations
omitted).
1
Snyder sought and received a COA from this court on August 4, 2008.
Snyder v. Ortiz, 288 Fed. App’x 505, 509 (10th Cir. 2008). On remand, the
district court disposed of Snyder’s claims on the merits.
-3-
In his counseled appellate brief, Snyder raises four issues. 2 He first
challenges the district court’s disposition of his ineffective assistance of counsel
claims, arguing counsel’s failure to specify the date of the offense in the plea
agreement resulted in his being sentenced pursuant to the harsher provisions of
the Lifetime Supervision of Sex Offenders Act. As to this claim, the Colorado
Court of Appeals concluded Snyder failed to show he was prejudiced by counsel’s
alleged deficient performance because
there was no evidence in the record that the prosecution would have
offered a plea deal under the pre-November 1, 1998 sentencing
scheme or any other more favorable plea that would have included
the possibility of probation. Moreover, there is no evidence in the
record that, but for counsel’s alleged errors, defendant would have
chosen to go to trial instead of pleading guilty.
The court of appeals concluded the record supported the state trial court’s finding
that Snyder “would have selected the plea bargain which was offered to him in
order to take advantage at least of the possibility of probation.” Applying
Strickland v. Washington, 466 U.S. 668 (1984), and the standards set out in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), the district court
concluded the Colorado courts’ adjudication of Snyder’s ineffective assistance
2
Snyder also argues the district court abused its discretion by refusing to
hold an evidentiary hearing on his ineffective assistance of counsel claims. See
Schriro v. Landrigan, 550 U.S. 465, 474 (2007). He argues the lack of an
evidentiary hearing in federal court deprived him of the opportunity to
“substantiate the substandard performance provided by counsel.” There is no
merit to this argument. Snyder was granted an evidentiary hearing by the
Colorado state court and his claims can be resolved by reference to the state court
record. See id.
-4-
claims was not contrary to, nor an unreasonable application of clearly established
federal law. 28 U.S.C. § 2254(d). The record fully supports the correctness of
the district court’s disposition of this claim.
Snyder next challenges the district court’s conclusion that the Colorado
Court of Appeals’ adjudication of his ex post facto claim was not contrary to nor
an unreasonable application of clearly established federal law. Applying the
Miller-El standard, we discern no basis upon which to grant Snyder a COA on
this claim. The Colorado Court of Appeals noted that the information charged
Snyder with conduct occurring between January 1998 and November 30, 1999,
and he entered a guilty plea to that charge. Thus, he “admitted to incidents, by
way of his guilty plea, that occurred after November 1, 1998,” foreclosing his ex
post facto arguments. Although Snyder argues the sexual assault to which he
pleaded guilty occurred prior to November 1, 1998, the state court found
otherwise and there is ample support for that finding in the record.
Snyder also seeks a COA on the claim his guilty plea was not knowing and
voluntary. Once again, he cannot meet the standard for the grant of a COA,
failing to overcome the presumption that the state court’s findings relating to this
claim are correct. See 28 U.S.C. § 2254(e)(1). Snyder’s remaining argument,
that he properly raised federal constitutional claims in connection with his
challenge to the adjudication of his Rule 35 motion, is foreclosed by this court’s
-5-
prior opinion in this matter. Snyder v. Ortiz, 288 Fed. App’x 505, 508-09 (10th
Cir. 2008).
This court has reviewed Snyder’s application for a COA and appellate
brief, the district court’s order, and the entire record on appeal, including the
transcript of the state evidentiary hearing, pursuant to the framework set out by
the Supreme Court in Miller-El and concludes that Snyder is not entitled to a
COA. The district court’s resolution of Snyder’s claims is not reasonably subject
to debate and the claims are not adequate to deserve further proceedings.
Accordingly, Snyder has not “made a substantial showing of the denial of a
constitutional right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).
This court denies Snyder’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-6-