FILED
United States Court of Appeals
Tenth Circuit
March 21, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
TRAVIS RASHAD BARNES,
Petitioner-Appellant,
v.
No. 12-1371
WARDEN JOHN DAVIS, Warden; (D.C. No. 1:11-CV-02760-REB)
THE ATTORNEY GENERAL OF (D. Colo.)
THE STATE OF COLORADO,
Respondents-Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
Petitioner-Appellant Travis Rashad Barnes, a prisoner in Colorado state
custody, proceeding pro se, 1 seeks a certificate of appealability (“COA”) to
challenge the district court’s denial of his application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Mr. Barnes also seeks leave to proceed in forma
pauperis. Having thoroughly reviewed the relevant law and the record, we deny
*
This order is not binding precedent except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
1
Because Mr. Barnes 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).
Mr. Barnes’s application for a COA, deny his request to proceed in forma
pauperis, and dismiss this matter.
I
Mr. Barnes was convicted by a jury in Denver County District Court of two
counts of first-degree murder. He was sentenced to two consecutive life terms in
prison without parole. The Colorado Court of Appeals affirmed the judgment
against Mr. Barnes on direct appeal. The Colorado Supreme Court denied
certiorari.
Subsequently, Mr. Barnes filed a post-conviction motion in state trial court
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, collaterally
attacking the judgment against him. The trial court denied the motion, the
Colorado Court of Appeals affirmed this denial, and the Colorado Supreme Court
denied certiorari.
Mr. Barnes then filed a pro se Application for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. In his application, Mr. Barnes asserted three
claims: (1) the trial court violated his Sixth Amendment confrontation rights by
allowing the prosecution to present hearsay evidence without calling the out-of-
court declarant as a witness; (2) trial counsel was ineffective for failing to object
and renew his motion for a mistrial after the prosecution rested without calling
the out-of-court declarant as a witness; and (3) direct appeal counsel was
ineffective for failing to properly raise the Confrontation Clause claim on direct
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appeal.
Each claim arises from the direct examination of Mr. Barnes’s girlfriend at
trial. Specifically, the prosecutor asked the girlfriend whether she recalled telling
her friend that she was afraid that her boyfriend, Mr. Barnes, would break in
through her window. See R. at 443–44 (Order on Appl. for Writ of Habeas
Corpus, dated Sept. 6, 2012) (quoting the relevant colloquy between the
prosecutor and Mr. Barnes’s girlfriend). Mr. Barnes’s trial counsel objected and
moved for mistrial—notably, just once—arguing that the prosecutor was trying to
introduce hearsay without having the friend testify; 2 the prosecutor responded that
the questions were necessary to lay the foundation for impeaching the girlfriend’s
2
In considering the viability of a Confrontation Clause claim, we note
some lack of clarity as to whether a hearsay statement of Mr. Barnes’s girlfriend
was actually admitted into evidence, although it appears that only the prosecutor
injected the statement in his examination of the girlfriend. Compare R. at 443
(“Q: Specifically, . . . do you recall telling [the friend], . . . , that night, that you
were afraid of your boyfriend coming in the window?” (alterations in original)),
with id. at 111–12 (Opening Br. of Def.-Aplt., filed Nov. 29, 2011) (referring to
“improper prosecutorial questioning that elicited inadmissible [hearsay]
evidence”). However, as noted infra, the Colorado Court of Appeals resolved the
Confrontation Clause question on the basis of whether the statement was
testimonial. Consequently, we also direct our focus to that question and need not
definitively opine on whether the statement was actually hearsay and admitted
into evidence. See id. at 448 (“[T]he Colorado Court of Appeals concluded that
the prosecutor’s reference to the girlfriend’s statement did not violate the
Confrontation Clause because it was not testimonial.” (citation omitted) (internal
quotation marks omitted)). Cf. Littlejohn v. Trammell, 704 F.3d 817, 838 (10th
Cir. 2013) (“Despite his oblique references to the Confrontation Clause, Mr.
Littlejohn does not actually claim that such a violation took place—only that the
prosecutor’s ‘comments were akin to a violation of the Confrontation Clause.’”
(quoting Aplt. Littlejohn’s Opening Br. at 51)).
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testimony with the friend’s testimony, and the trial court overruled trial counsel’s
objection.
The State contended, and the district court agreed, that Mr. Barnes’s first
claim for relief was procedurally defaulted in the state courts—viz., counsel on
direct appeal did not raise the Confrontation Clause claim in his opening brief and
instead raised the claim for the first time in the reply brief. 3 Nonetheless, because
“[a] habeas petitioner may establish cause for his procedural default by showing
that he received ineffective assistance of counsel in violation of the Sixth
Amendment,” Banks v. Reynolds, 54 F.3d 1508, 1514 (10th Cir. 1995), and
because Mr. Barnes asserted in his third claim that his appellate counsel was
ineffective, the district court determined that Mr. Barnes may be able to
demonstrate cause for his procedural default of his first claim based on his
allegations in his third claim.
However, the district court concluded, consistent with the Colorado Court
of Appeals’s holding, that Mr. Barnes’s third claim failed on the merits—the
admission of the alleged hearsay statement did not raise Confrontation Clause
3
“In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred unless the prisoner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991).
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concerns as it was non-testimonial, 4 and therefore, appellate counsel’s failure to
raise the issue on direct appeal did not result in constitutionally deficient
performance. Because Mr. Barnes’s ineffective assistance claim lacked merit, the
district court concluded that Mr. Barnes had failed to establish cause for the
procedural default of his Confrontation Clause claim.
The district court then proceeded to address the merits of Mr. Barnes’s
second claim, and concluded, as did the Colorado Court of Appeals, that trial
counsel was not constitutionally ineffective for failing to renew a motion for
mistrial after admission of the alleged hearsay statement—again, the statement
was non-testimonial, and Mr. Barnes’s girlfriend denied ever stating that she was
afraid of Mr. Barnes, making it unlikely that the statement caused prejudice to
Mr. Barnes. Accordingly, the district court dismissed Mr. Barnes’s case with
prejudice.
Mr. Barnes seeks to appeal from the district court’s denial of his § 2254
petition.
4
See generally Crawford v. Washington, 541 U.S. 36, 59 (2004)
(“Testimonial statements of witnesses absent from trial have been admitted only
where the declarant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.”); United States v. Smalls, 605 F.3d 765, 778 (10th
Cir. 2010) (analyzing Crawford and its progeny with respect to the meaning of
the term “testimonial”).
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II
A COA is a jurisdictional prerequisite to our review of the merits of
a § 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d
711, 713 (10th Cir. 2006); see also Gonzalez v. Thaler, 132 S. Ct. 641, 647–49
(2012) (discussing, inter alia, the “clear” jurisdictional language in § 2253(c)(1)).
We will issue a COA only if the applicant makes “a substantial showing of the
denial of a constitutional right.” Woodward v. Cline, 693 F.3d 1289, 1292 (10th
Cir. 2012) (quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted);
accord Clark, 468 F.3d at 713. An applicant “satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude that the issues
presented are adequate to deserve encouragement to proceed further.” Dulworth
v. Jones, 496 F.3d 1133, 1136–37 (10th Cir. 2007) (quoting Miller-El v. Cockrell,
537 U.S. 322, 327 (2003)) (internal quotation marks omitted).
When the district court denies relief “on procedural grounds, the applicant
faces a double hurdle. Not only must the applicant make a substantial showing of
the denial of a constitutional right, but he must also show ‘that jurists of reason
would find it debatable . . . whether the district court was correct in its procedural
ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also Gonzalez, 132 S. Ct.
at 648.
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III
Mr. Barnes seeks a COA from our court, alleging the following: (1) the
district court erred by dismissing his case with prejudice based on its conclusion
that his Confrontation Clause claim lacked merit; (2) the district court erred by
concluding that the Confrontation Clause claim was procedurally defaulted; and
(3) the district court misrepresented the facts of appellate counsel’s deficient
performance.
Pursuant to the analytic framework that the Supreme Court has established,
most notably in Miller-El and Slack, we have carefully reviewed Mr. Barnes’s
combined opening brief and application for COA as well as the record, including
the district court’s thorough order denying Mr. Barnes’s § 2254 petition. Based
upon this review, we conclude that Mr. Barnes is not entitled to a COA on any of
his claims because he has not made a substantial showing of the denial of a
constitutional right. For substantially the same reasons articulated by the district
court, reasonable jurists could not debate whether his § 2254 petition should have
been resolved in a different manner, and the issues that Mr. Barnes seeks to raise
on appeal are not adequate to deserve encouragement to proceed further.
Mr. Barnes also seeks to proceed in forma pauperis. However, he has not
demonstrated “the existence of a reasoned, nonfrivolous argument on the law and
facts in support of the issues raised on appeal.” Watkins v. Leyba, 543 F.3d 624,
627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809,
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812 (10th Cir. 1997)) (internal quotation marks omitted). Therefore, we decline
to grant this relief.
IV
For the foregoing reasons, we deny Mr. Barnes’s request for a COA, deny
his motion to proceed in forma pauperis, and dismiss this matter.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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