FILED
United States Court of Appeals
Tenth Circuit
April 19, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BERNARD JONES,
Petitioner - Appellant,
v. No. 16-1398
(D.C. No. 1:15-CV-01829-PAB)
LOU ARCHULETA, Warden; THE (D. Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Petitioner Bernard Jones, a state prisoner represented by counsel, seeks a
certificate of appealability to appeal the district court’s denial of his § 2254
habeas application.
Petitioner is serving a lengthy state prison sentence for conspiracy to
possess cocaine as a habitual criminal. In his § 2254 petition, he raised five
claims for relief: (1) his federal constitutional rights were violated when the
*
This order is not binding precedent except under the doctrines of law of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.
conspiracy count was amended several years after the statute of limitations had
run; (2) his conviction was barred by the Double Jeopardy Clause because he was
also fined under a controlled substance tax for possession of the drugs that were
involved in his criminal conviction for conspiracy; (3) Petitioner received
ineffective assistance of counsel when trial counsel inadvertently solicited
incriminating hearsay regarding a confidential informant; (4) counsel was
ineffective for failing to attack the validity of Petitioner’s earlier convictions that
formed the basis for his sentencing as a habitual offender; and (5) Petitioner
received ineffective assistance of counsel based on counsel’s failure to perform a
reasonable investigation in preparation for trial. The district court denied relief
as to all of these claims. Petitioner now seeks to appeal the district court’s ruling
as to his first four claims for relief. He does not raise any arguments regarding
the fifth claim raised in his habeas application, and we accordingly will not
address this claim in determining whether Petitioner is entitled to a certificate of
appealability.
After thoroughly reviewing the record and Petitioner’s arguments on
appeal, we conclude that reasonable jurists would not debate the district court’s
denial of habeas relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). First,
the district court correctly concluded that Petitioner’s first claim was procedurally
barred because Petitioner did not raise any federal constitutional claims relating
to the amendment of the indictment in the state court proceedings. See Anderson
-2-
v. Harless, 459 U.S. 4, 6 (1982) (“[Section] 2254 requires a federal habeas
petitioner to provide the state courts with a ‘fair opportunity’ to apply controlling
legal principles to the facts bearing upon his constitutional claim. It is not
enough that all the facts necessary to support the federal claim were before the
state courts, or that a somewhat similar state-law claim was made.” (citations
omitted)). Second, as the district court explained more comprehensively below,
Petitioner has not shown the state court’s disposition of his double jeopardy
argument was contrary to clearly established federal law. See Mansfield v.
Champion, 992 F.2d 1098, 1100 (10th Cir. 1993) (“In a habeas corpus proceeding
under section 2254, a federal court should defer to a state court’s interpretation of
state law in determining whether an incident constitutes one or more than one
offense for double jeopardy purposes.”). Third, the state court conducted a
thorough postconviction review of Petitioner’s claim regarding trial counsel’s
solicitation of evidence regarding the confidential informant and concluded the
evidence did not prejudice Petitioner’s case, given the other evidence linking
Petitioner to drug sales. We are not persuaded the state court determination was
based on an unreasonable determination of the facts or an unreasonable
application of clearly established federal law, and Petitioner accordingly has not
demonstrated that he is entitled to habeas relief on this claim. See 28 U.S.C. §
2254(d). Finally, the state court held multiple postconviction hearings at which it
heard testimony from Petitioner, at least one attorney who represented Petitioner
-3-
in an earlier criminal case, and at least two eyewitnesses to the events that gave
rise to Petitioner’s first criminal conviction. After hearing all of this testimony,
the state court found as a factual matter that even if trial counsel in this case had
challenged the validity of the earlier convictions, these convictions would have
been affirmed. Again, Petitioner has not shown the state court’s holding was
based on an unreasonable determination of the facts, nor has he otherwise
demonstrated an entitlement to federal habeas relief.
We therefore DENY Petitioner’s request for a certificate of appealability
and DISMISS the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
-4-