Zuniga v. Falk

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

TENTH CIRCUIT July 10, 2015

Elisabeth A. Shumaker
Clerk of Court

GENERO ZUNIGA,

Petitioner - Appellant, No. 15-1118
(D.C. No. 1:13-CV-02247-WJM)
v. (D. Colo.)

JAMES FALK, Warden of Sterling
Correction Facility; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.

Petitioner Genero Zuniga, a Colorado state prisoner appearing pro se,1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus. See 28 U.S.C. § 2253(c)(1)(A)

* This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Zuniga is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596 F.3d 1198,
1201 n.2 (10th Cir. 2010).
(requiring a COA to appeal denial of a § 2254 application). Mr. Zuniga also seeks leave

to proceed in forma pauperis (“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we

deny both requests and dismiss this matter.

I. BACKGROUND

Mr. Zuniga is serving a life sentence without the possibility of parole plus 128

years for the Colorado offenses of first-degree murder after deliberation, attempted first-

degree murder after deliberation (three counts), conspiracy to commit first-degree murder

after deliberation, and second-degree assault. The Colorado Court of Appeals (“CCA”)

affirmed his conviction and sentence on direct appeal. Mr. Zuniga applied for post-

conviction relief. The trial court denied his application and the CCA affirmed. The

Colorado Supreme Court denied certiorari review.

Mr. Zuniga filed a § 2254 petition in federal district court alleging five claims: (1)

the trial court’s failure to sever Mr. Zuniga’s trial from his codefendant’s violated his due

process rights, (2) the trial court’s complicity jury instruction relieved the prosecution of

its burden of proof, (3) insufficiency of the evidence, (4) ineffective assistance of trial

counsel, and (5) ineffective assistance of appellate counsel. The district court dismissed

Mr. Zuniga’s first claim as procedurally barred and rejected his remaining four claims on

the merits. The court also denied Mr. Zuniga’s request for a COA and to proceed ifp on

appeal. Mr. Zuniga now seeks a COA on all five claims and to proceed ifp.

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 II. DISCUSSION

A. Standard of Review and Legal Background

Mr. Zuniga may not appeal the district court’s denial of his § 2254 petition

without a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). To obtain a

COA, he must make a “substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), by “showing 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). When the district

court dismisses a petition on procedural grounds, the petitioner must also show “that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. at 484.

When a state court has decided the petitioner’s claims on the merits and we are

considering whether to grant a COA, we “look to the District Court’s application of [the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)] to petitioner’s

constitutional claims and ask whether that resolution was debatable amongst jurists of

reason.” Miller-El, 537 U.S. at 336. Under AEDPA, a federal court cannot grant habeas

relief unless 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,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

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

proceeding,” id. § 2254(d)(2).

B. Analysis

1. Severance Claim

Mr. Zuniga argues the trial court violated his due process rights by denying his

request to sever his trial from that of his codefendant. The district court denied relief,

concluding this claim was procedurally barred. It explained Mr. Zuniga had sought

severance in state court solely on state law grounds, and his unexhausted federal claim

would now be procedurally barred in state court.

We generally may not review a claim for federal habeas relief unless “the

applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A). “A claim has been exhausted when it has been ‘fairly presented’ to the

state court.” Wilson v. Workman, 577 F.3d 1284, 1294 (10th Cir. 2009) (en banc)

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)), abrogated on other grounds by

Simpson v. State, 230 P.3d 888 (Okla. Crim. App. 2010). “Fair presentation means that

the substance of the claim must be raised in state court. The allegations and supporting

evidence must offer the state courts a fair opportunity to apply controlling legal principles

to the facts bearing upon [the] constitutional claim.” Id. (quotations omitted).

When a federal court determines that a habeas petitioner has failed to exhaust

claims in state court, it generally dismisses the unexhausted claims without prejudice to

allow the petitioner to return to state court to exhaust the claims. Bland v. Sirmons, 459
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F.3d 999, 1012 (10th Cir. 2006). However, when a federal court determines that an

unexhausted claim is subject to an anticipatory procedural bar, it will be “considered

exhausted and procedurally defaulted for purposes of habeas relief.” Cannon v. Gibson,

259 F.3d 1253, 1265 (10th Cir. 2001). Such an “[a]nticipatory procedural bar occurs

when the federal courts apply [a] procedural bar to . . . [a claim not fairly presented to the

state court] that would be procedurally barred under state law if the petitioner returned to

state court to exhaust it.” Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007)

(quotations omitted).

Like ordinary procedural default—which occurs when a state court expressly

rejects a claim based on an independent and adequate state procedural rule—procedural

default based on an anticipatory procedural bar can be overcome only by establishing

cause and prejudice or a fundamental miscarriage of justice. See Cummings v. Sirmons,

506 F.3d 1211, 1223 (10th Cir. 2007). The “fundamental miscarriage of justice”

exception “is a markedly narrow one, implicated only in extraordinary cases where a

constitutional violation has probably resulted in the conviction of one who is actually

innocent.” Magar v. Parker, 490 F.3d 816, 820 (10th Cir. 2007) (quotations and

alterations omitted).

Mr. Zuniga does not challenge the district court’s finding that if he tried to bring

his unexhausted claim now in state court, it would be procedurally defaulted. See Colo.

R. Crim. P. 35(c)(3)(VI)-(VII). Nor does he attempt to show cause and prejudice or

actual innocence to overcome the procedural default. Rather, he asserts that his claim
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was fairly presented in state court and the district court’s contrary conclusion is

erroneous. We disagree.

Reasonable jurists could not debate the district court’s conclusion that Mr.

Zuniga’s direct appeal brief presented his severance claim as a question of state law.

Although the brief cited the Fifth, Sixth, and Fourteenth Amendments at the “tail end of

his state law argument,” ROA at 282, the district court properly rejected Mr. Zuniga’s

conclusory reference to a fair trial and the Constitution as insufficient to put the state

court on notice that Mr. Zuniga was raising a federal constitutional claim. See Thomas v.

Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000).

Because reasonable jurists could not debate that Mr. Zuniga’s claim is

procedurally barred for purposes of habeas review, we deny a COA on this issue.

2. Jury Instruction Claim

Mr. Zuniga challenges the trial court’s complicity instruction, which stated:

A person is guilty of an offense committed by another person if he is a
complicitor. To be guilty as a complicitor, each of the following must be
established beyond a reasonable doubt:

1. A crime must have been committed;

2. Another person must have committed the crime;

3. The defendant must have had knowledge that the other person intended
to commit the crime;

4. The defendant must have had the intent to promote or facilitate the
commission of the crime; and

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 5. The defendant must have aided, abetted, advised, or encouraged the
other person in the commission or planning of the crime.

ROA at 415. Mr. Zuniga argues this instruction deprived him of due process because it

relieved the prosecution of its burden of proof. He contends the instruction failed to set

forth the dual state of mind required to find him guilty under a complicity theory because

it did not inform the jury that it needed to find Mr. Zuniga shared the principal’s culpable

state of mind.

The CCA rejected this claim on direct review, concluding that the jury instruction

properly instructed the jurors of the dual state of mind requirement and therefore did not

violate Mr. Zuniga’s due process rights. It explained, “[T]he defendant could not have

intended his participation to further the [principal’s] crime unless he also intended the

crime to occur. For him to intend that the crime occur, he would necessarily share the

principal’s mental state.” ROA at 184 (quotations and emphasis omitted).

The district court concluded the CCA’s determination was not contrary to or an

unreasonable application of clearly established federal law because “the jury instructions,

as a whole, . . . require[d] the prosecution to prove all of the elements of complicity

beyond a reasonable doubt.” ROA at 364.

The Due Process Clause requires the prosecution to prove every element of a

charged offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364

(1970). We must therefore consider “whether there is a reasonable likelihood that the

jury understood the instructions to allow conviction based on proof insufficient to meet

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the Winship standard.” Victor v. Nebraska, 511 U.S. 1, 6 (1994). In making this

determination, we must view the instruction “in the context of the instructions as a whole

and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991).

We agree with the district court’s and CCA’s analyses concluding that the jury

instructions properly instructed the jury on the prosecution’s burden of proof for all

elements of complicity. Reasonable jurists could not debate the district court’s resolution

of this issue. We deny a COA.

3. Sufficiency of the Evidence Claim

Mr. Zuniga argues the evidence presented at trial was insufficient to support his

convictions for first degree murder after deliberation, attempted first-degree murder after

deliberation, and conspiracy to commit first degree murder after deliberation because the

evidence did not show he acted “after deliberation.” In Jackson v. Virginia, 443 U.S. 307

(1979), the Supreme Court held that evidence is sufficient to support a conviction as a

matter of due process 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.” Id. at 319.

The CCA rejected Mr. Zuniga’s claim on direct appeal as follows:

The evidence in the record before us, when viewed in the light most
favorable to the prosecution, establishes that after flashing rival gang signs
back and forth with a group of high school age boys, Zuniga and [his
codefendant] followed their vehicle down a residential street, pulled up
alongside, fired six to eight shots at the driver and passengers, and killed
the driver. The jury could have reasonably inferred that this series of
actions was the result of a series of deliberative choices, satisfying the
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 requirements of first degree murder after deliberation. The verdict was
therefore supported by sufficient evidence.

ROA at 187-88.

The district court concluded the CCA’s resolution of Mr. Zuniga’s sufficiency of

the evidence claim was consistent with Jackson and that the evidence was sufficient for a

jury to find Mr. Zuniga guilty.

For substantially the same reasons as the district court, we agree. Mr. Zuniga

attempts to challenge the CCA’s determination merely by stating there is conflicting

evidence in the record. Even if that were true, the district court properly rejected this

argument because, on habeas review, we do not weigh evidence. See Turrentine v.

Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004). No reasonable jurist could debate whether

the district court correctly resolved this issue. We deny a COA.

4. Ineffective Assistance of Trial Counsel Claim

Mr. Zuniga argues his trial counsel rendered ineffective assistance by failing to

exercise a peremptory challenge after an alternate juror replaced an excused juror mid-

trial. Colorado law provides each side with an additional peremptory challenge when an

alternate juror is impaneled. See Colo. Rev. Stat. § 16-10-105.

To be entitled to relief for ineffective assistance of counsel, Mr. Zuniga must show

(1) counsel’s performance was deficient, and (2) he was prejudiced. Strickland v.

Washington, 466 U.S. 668, 687-88, 692 (1984). The CCA and district court both

resolved Mr. Zuniga’s claim on the second element, which requires showing “there is a

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reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. A “reasonable probability is a

probability sufficient to undermine confidence in the outcome,” id., and “[t]he likelihood

of a different result must be substantial, not just conceivable,” Harrington v. Richter, 562

U.S. 86, 112 (2011).

On post-conviction review, the CCA rejected this claim, explaining that even

assuming trial counsel’s omission amounted to deficient performance, Mr. Zuniga failed

to allege “any facts which would suggest that, but for counsel’s deficient performance,

the outcome of the trial would have been different.” ROA at 238. It explained that Mr.

Zuniga did not allege “that the replacement juror was biased or unable to render an

impartial verdict.” Id. It rejected Mr. Zuniga’s argument that he would have preferred a

different alternate juror as insufficient to demonstrate prejudice under Strickland. The

district court concluded the CCA reasonably applied Strickland to Mr. Zuniga’s claim.

Mr. Zuniga argues he was prejudiced merely by his counsel’s failure to exercise

his statutory right to an extra peremptory challenge and that the CCA and district court

erred in requiring him to show that the alternate juror was biased or unable to render an

impartial verdict. But without such a showing, Mr. Zuniga fails to demonstrate the result

of the trial would likely have been different had the peremptory challenge been exercised.

See Hooks v. Workman, 689 F.3d 1148, 1176 (10th Cir. 2012) (rejecting a petitioner’s

habeas challenge to the removal of a potential juror because the petitioner did not contest

that the impaneled jury was fair and impartial and therefore his claim did not implicate
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his constitutional right to a fair trial). He has not otherwise identified any reason why the

failure to use the peremptory challenge would have changed the result of trial.

Accordingly, reasonable jurists could not debate the district court’s decision to reject this

claim based on lack of prejudice. We deny COA on this issue.

5. Ineffective Assistance of Appellate Counsel Claim

Mr. Zuniga argues his appellate counsel rendered ineffective assistance by failing

to raise five issues on direct appeal: (a) an equal protection violation under Batson v.

Kentucky, 476 U.S. 79 (1986); (b) prosecutorial misconduct during closing arguments; (c)

the trial court’s failure to give a unanimity instruction; (d) the unconstitutional use of a

sentencing enhancement; and (e) violation of Mr. Zuniga’s Fourth Amendment rights

under Georgia v. Randolph, 547 U.S. 103 (2006), which was announced while Mr.

Zuniga’s direct appeal was pending.

To establish ineffective assistance of appellate counsel, Mr. Zuniga “must show

both (1) constitutionally deficient performance, by demonstrating that his appellate

counsel’s conduct was objectively unreasonable, and (2) resulting prejudice, by

demonstrating a reasonable probability that, but for counsel’s unprofessional error(s), the

result of the proceeding would have been different.” McGee v. Higgins, 568 F.3d 832,

838 (10th Cir. 2009) (quotations and alteration omitted). We first “look to the merits of

the omitted issue.” Hammon v. Ward, 466 F.3d 919, 927 (10th Cir. 2006) (quotations

omitted). “If the omitted issue is so plainly meritorious that it would have been

unreasonable to winnow it out even from an otherwise strong appeal, its omission may
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directly establish deficient performance.” Malicoat v. Mullin, 426 F.3d 1241, 1249 (10th

Cir. 2005). “On the other hand, if the omitted issue has merit but is not so compelling,

we must examine the issue in relation to the rest of the appeal.” Id. “[O]f course, if the

issue is meritless, its omission will not constitute deficient performance.” Cargle v.

Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). “Habeas relief is warranted only if the

petitioner establishes a reasonable probability of a favorable result had his appellate

counsel raised the omitted issue.” Malicoat, 426 F.3d at 1249.

We conclude no reasonable jurist could debate the district court’s determination

that the CCA reasonably applied clearly established federal law in concluding appellate

counsel’s alleged omissions lacked merit. We reject Mr. Zuniga’s request for a COA on

all five issues.

a. Batson claim

Mr. Zuniga argues his appellate counsel was ineffective for failing to raise a

Batson claim regarding the prosecution’s use of a peremptory challenge to remove a

black prospective juror. He argues the prosecution’s challenge was based on race and the

proffered reason for excusing the juror—that she “identif[ied] with” Mr. Zuniga because

she had a son who was approximately the same age—was pretextual.

In Batson, the Supreme Court held that the Fourteenth Amendment’s Equal

Protection Clause prohibits the prosecution from using peremptory challenges to exclude

potential jurors on the basis of race. Batson, 476 U.S. at 86. The Court provided a three-

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step analysis for determining whether the prosecution impermissibly used its peremptory

challenges:

First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race. Second, if that showing
has been made, the prosecution must offer a race-neutral basis for striking
the juror in question. Third, in light of the parties’ submissions, the trial
court must determine whether the defendant has shown purposeful
discrimination.

Miller-El, 537 U.S. at 328-29 (citing Batson, 476 U.S. at 96-98). “[I]f, at step three, the

court finds the proffered ground to be pretextual, it may determine that the strike was

purposeful discrimination.” Black v. Workman, 682 F.3d 880, 894 (10th Cir. 2012).

“The disposition of a Batson claim is a question of fact . . . .” Saiz v. Ortiz, 392 F.3d

1166, 1175 (10th Cir. 2004). Thus, so long as the state court applied Batson, Mr. Zuniga

is entitled to relief only if the state court’s rejection of his claim “was ‘an unreasonable

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

proceeding.’” Black, 682 F.3d at 896 (quoting 28 U.S.C. § 2254(d)(2)).

On post-conviction review, the CCA rejected Mr. Zuniga’s ineffective assistance

of appellate counsel claim because the omitted Batson claim lacked merit. Applying the

Batson standard, it “agree[d] with the trial court’s assessment that the challenge was not

made with discriminatory intent. The prosecutor’s explanation was race-neutral, and the

record reflects that the jury ultimately included four people of color.” ROA at 243.

The district court concluded the CCA applied the proper Batson standard and that

its rejection of Mr. Zuniga’s claim was reasonable. It also explained that having four

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people of color on the jury “weighs strongly against a finding of pretext.” ROA at 371.

Accordingly, it further concluded the CCA’s rejection of Mr. Zuniga’s ineffective

assistance of appellate counsel claim was reasonable under AEDPA because there was

“no reasonabl[e] probability of a favorable result had [Mr. Zuniga’s] appellate counsel

raised the omitted issue.” Id. (quoting Malicoat, 426 F.3d at 1249).

Mr. Zuniga now argues the CCA’s determination that his Batson claim lacked

merit was unreasonable because other jurors who were not black and who also had

children around Mr. Zuniga’s age were not excused. Mr. Zuniga, however, fails to point

to any evidence in the state court record to support this contention. He has therefore

failed to show that the CCA’s application of Batson was unreasonable.

No reasonable jurist could debate the district court’s resolution of this issue under

AEDPA. We deny a COA.

b. Prosecutorial misconduct

Mr. Zuniga argues appellate counsel was ineffective for failing to raise the issue of

prosecutorial misconduct on appeal. Specifically, he argues appellate counsel should

have challenged the prosecutor’s remark that Mr. Zuniga would perhaps get more tattoos

after being convicted, showing that this crime was a badge of honor.

“[N]ot every improper or unfair remark made by a prosecutor will amount to a

federal constitutional deprivation.” Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.

2000). “Unless prosecutorial misconduct implicates a specific constitutional right, a

prosecutor’s improper remarks require reversal of a state conviction only if the remarks
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so infected the trial with unfairness as to make the resulting conviction a denial of due

process.” Wilson v. Sirmons, 536 F.3d 1064, 1117 (10th Cir. 2008) (quotations omitted).

“[I]t is not enough that the prosecutors’ remarks were undesirable or even universally

condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotations omitted).

“The ultimate question is whether the jury was able to fairly judge the evidence in light of

the prosecutors’ conduct.” Wilson, 536 F.3d at 1117 (quoting Bland, 459 F.3d at 1024).

In this case, during rebuttal closing argument, over defense counsel’s objection,

the prosecutor concluded by stating: “Perhaps at the conclusion of this case, Mr. Zuniga

can add a line to his tattoo. Where it says, ‘Hated by many, loved by few, respected by

all,’ perhaps he can add the line ‘convicted by twelve.’” ROA at 243-44.

The CCA concluded that appellate counsel was not ineffective for failing to raise

this claim because it lacked merit. It explained that the prosecutor had used Mr. Zuniga’s

tattoos throughout trial as “evidence of his gang affiliation for proof of his intent,” and

that “the prosecutor’s reference to the tattoo was a proper oratorical embellishment

regarding a central issue in the case.” ROA at 244.

The district court concluded the CCA’s resolution of Mr. Zuniga’s prosecutorial

misconduct claim was based on a reasonable determination of the facts and that Mr.

Zuniga failed to demonstrate that the prosecutor’s “isolated remark” during closing

argument “affected the jury’s ability to judge the evidence fairly.” ROA at 372-73. The

district court concluded that, because Mr. Zuniga failed to demonstrate a reasonable

probability of success on his prosecutorial misconduct claim, the CCA’s determination
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that appellate counsel was not constitutionally ineffective for failing to raise the issue on

appeal was reasonable.

In his brief, Mr. Zuniga argues the CCA’s determination that the prosecutor’s

remarks were “oratorical embellishment” was an unreasonable determination of the facts.

Mr. Zuniga, however, has not shown how these remarks “so infected the trial with

unfairness” as to result in a violation of due process. See Wilson, 536 F.3d at 1117.

Accordingly, no reasonable jurist could debate whether the district court properly denied

Mr. Zuniga’s ineffective appellate counsel claim regarding prosecutorial misconduct. We

deny COA.

c. Unanimity instruction

Mr. Zuniga argues appellate counsel was ineffective for failing to challenge the

trial court’s refusal to give an instruction that would have required the jury to

unanimously agree on the acts attributed to each defendant. The trial court concluded the

instruction was unnecessary. Mr. Zuniga contends a unanimity instruction was required

because there were multiple theories on which the jury could have found him guilty.

The CCA rejected this claim, explaining that “[a] jury is only required to reach a

unanimous verdict on the charge, not the alternative theories offered in support of the

charge.” ROA at 244. It further stated that “the court was not required to provide a jury

instruction requiring the jury to unanimously conclude that Zuniga acted as either a

principal or complicitor” because “whether Zuniga acted as a principal or complicitor

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raised alternative legal theories describing two means of committing the charged crimes.”

ROA at 245.

The district court concluded the CCA’s determination that a unanimity instruction

was not required under Colorado law is binding, and Mr. Zuniga “was not entitled to a

unanimity instruction as a matter of federal due process.” ROA at 375. It therefore

concluded appellate counsel’s failure to raise the issue on appeal did not amount to

deficient performance or prejudice Mr. Zuniga.

Due process does not require unanimity from a state court jury on the various

means or theories of committing a single offense charged. Schad v. Arizona, 501 U.S.

624, 631 (1991).2 The trial court’s failure to instruct the jury that it had to determine

unanimously whether Mr. Zuniga had committed the crime as a principal or complicitor

did not violate due process. Because Mr. Zuniga’s alleged omitted appellate claim lacked

merit, we conclude reasonable jurists could not debate that the district court properly

denied Mr. Zuniga’s ineffective assistance of appellate counsel claim regarding failure to

raise this issue. We deny a COA.

d. Sentencing enhancement

Mr. Zuniga argues appellate counsel was ineffective for failing to challenge the

trial court’s enhancement of his sentence as a “crime of violence” under Colo. Rev. Stat.

2
Mr. Zuniga’s reliance on Richardson v. United States, 526 U.S. 813 (1999), is
misplaced because Richardson discusses the requirement of a unanimous verdict in
federal criminal trials. It does not discuss whether a unanimous verdict is required in
state criminal trials.

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§ 18-1.3-406(1)(a). Specifically, he contends that the evidence at trial failed to establish

that he “[u]sed” or “threatened the use of[] a deadly weapon” as required under the

statute. Colo. Rev. Stat. § 18-1.3-406(1)(a), (2)(a)(I).

The CCA rejected Mr. Zuniga’s ineffective assistance claim on this ground

because Mr. Zuniga’s sentence enhancement was lawful. It determined that Mr. Zuniga

was convicted of multiple crimes of violence, the jury made the required deadly weapon

findings for the conspiracy and attempt charges, and therefore application of § 18-1.3-406

was mandatory.

The district court concluded appellate counsel’s failure to appeal the district

court’s use of the sentencing enhancement did not amount to ineffective assistance

because the crime-of-violence statute was properly applied to Mr. Zuniga.

For substantially the same reasons as stated by the district court, we conclude the

state court did not erroneously apply the crime-of-violence sentencing enhancement. We

therefore conclude no reasonable jurist could debate that the district court properly denied

Mr. Zuniga’s ineffective assistance of appellate counsel claim regarding failure to raise

this issue. We deny a COA.

e. Fourth Amendment

Mr. Zuniga finally argues appellate counsel was ineffective for failing to amend

his appeal to challenge the search of his residence under Randolph, which was decided

while his direct appeal was pending. He contends police should not have searched his

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residence based on his common-law wife’s assent because they did not have a warrant

and he had refused permission.

In Randolph, the Supreme Court held that “a warrantless search of a shared

dwelling for evidence over the express refusal of consent by a physically present resident

cannot be justified as reasonable as to him on the basis of consent given to the police by

another resident.” 547 U.S. at 120. The CCA rejected Mr. Zuniga’s claim, concluding

that Randolph was inapposite to Mr. Zuniga’s case because the police actually had a

search warrant.

The district court concluded Mr. Zuniga’s counsel was not ineffective for failing

to amend his appeal to assert a claim under Randolph because such a claim lacked merit.

It determined that Mr. Zuniga’s “unsupported assertion . . . that the police did not have a

warrant to search the residence, falls short of the clear and convincing evidence needed to

rebut a state court’s factual finding under 28 U.S.C. § 2254(e)(1).” ROA at 377

(quotations, citation, and alteration omitted). Indeed, it explained Mr. Zuniga’s assertion

that the search was warrantless was belied by the state court record, which contained (1)

an affidavit from an officer of the Aurora Police Department that it executed the search

pursuant to a warrant and (2) a motion to suppress filed by Mr. Zuniga, in which he

argued “there was no probable cause to justify issuance of the search warrant.” ROA at

377-78.

Based on the record, this allegedly omitted issue is meritless and no reasonable

jurist could debate that the district court properly denied Mr. Zuniga’s ineffective
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assistance of appellate counsel claim regarding failure to raise this issue. We deny a

COA.

* * * *

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

constitutional right” on any his alleged grounds for ineffective assistance of appellate

counsel, 28 U.S.C. § 2253(c)(2), we deny a COA on all his ineffective assistance of

appellate counsel issues.

III. CONCLUSION

Based on the foregoing, we deny Mr. Zuniga a COA and dismiss this matter. We

also deny Mr. Zuniga’s motion to proceed ifp.

ENTERED FOR THE COURT

Scott M. Matheson, Jr.
Circuit Judge

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