Suazo v. Jacquez

Appellate Case: 22-1157 Document: 010110726991 Date Filed: 08/19/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 19, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DANIEL SUAZO, JR.,

Petitioner - Appellant,
No. 22-1157
v. (D.C. No. 1:18-CV-00330-RMR)
(D. Colo.)
MR. JACQUEZ, WARDEN OF THE
A.V.C.F. CORRECTIONAL FACILITY,
AND PHILIP J. WEISER, ATTORNEY
GENERAL FOR THE STATE OF
COLORADO,

Respondents - Appellees.
_________________________________

ORDER DENYING A CERTIFICATE OF APPEALABILITY*
_________________________________

Before MORITZ, BRISCOE, and CARSON, Circuit Judges.
_________________________________

Petitioner Daniel Suazo, Jr., a Colorado state prisoner appearing pro se,

requests a certificate of appealability (“COA”) so that he may appeal the district

court’s order dismissing his petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. Because Suazo has failed to satisfy the standards for issuance of a COA, we

*
This order is not binding precedent except under the doctrines of law of the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.
Appellate Case: 22-1157 Document: 010110726991 Date Filed: 08/19/2022 Page: 2

deny his request, as well as his motion to proceed in forma pauperis on appeal, and

dismiss this matter.

I

A

In 2007, Suazo and a woman named Vanessa Chagolla agreed to rob a drug

dealer from whom Chagolla had previously purchased drugs. To carry out the

robbery, Suazo and Chagolla went to the drug dealer’s home. There, Chagolla

knocked on the door while Suazo, armed with a tire iron, hid behind her. When the

victim answered the door, Suazo and Chagolla forced their way inside and attacked

the victim. Suazo struck the victim with the tire iron, attempted to cut his throat with

a knife, and held him while Chagolla struck him with a shovel and placed a plastic

bag over his head. Suazo and Chagolla then took the victim’s wallet.

Following the attack, the police searched Suazo’s residence and recovered the

victim’s wallet and a knife. Both the wallet and knife contained DNA evidence that

was most probably contributed by both the victim and Suazo.

Suazo and Chagolla were charged with a number of offenses stemming from

the attack. Chagolla entered into a plea deal and agreed to testify against Suazo.

Although Suazo testified in his own defense, the jury convicted him of attempted

first-degree murder, first-degree burglary, aggravated robbery, second-degree assault,

theft, and several sentence enhancers. The state trial court sentenced Suazo to a total

term of imprisonment of 88 years, comprised of a 48-year sentence for attempted

first-degree murder, a consecutive 20-year sentence for first-degree burglary, a

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consecutive 20-year sentence for aggravated robbery, and 10-year concurrent

sentences for assault and theft.

Suazo filed a direct appeal. The Colorado Court of Appeals (CCA) affirmed

his convictions and sentences in an unpublished decision issued on January 28, 2010.

State v. Suazo, No. 08CA0187 (Colo. Ct. App. Jan. 28, 2010); see ECF 23-4. The

Colorado Supreme Court thereafter denied Suazo’s petition for writ of certiorari.

Suazo twice sought and was denied state post-conviction relief. Suazo’s first

effort ended on January 22, 2018, when the Colorado Supreme Court denied his

petition for writ of certiorari. Suazo’s second effort ended on December 7, 2020,

when the Colorado Supreme Court again denied his petition for writ of certiorari.

B

On February 9, 2018, while his second state post-conviction proceeding was

still pending in the Colorado state courts, Suazo initiated these federal proceedings

by filing a pro se application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The district court stayed and administratively closed the case until the conclusion of

the state court post-conviction proceedings.

On February 11, 2021, the district court reopened the case. Suazo, with the

permission of the district court, filed an amended application. Suazo’s amended

habeas application sought relief based upon the following claims:

1) “Denial of a fair trial before impartial jury due to a denial of
challenge for cause of Juror who had law enforcement ties and
connections in family and friends and stated That she believed
[Suazo] was guilty before and during voir dire and questioning.”
ECF No. 25 at 4.

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2) “Denial of a fair trial, the improper question by the Jury, which was
not corrected by the Trail [sic] Court and/or objected to by Trail [sic]
Counsel.” Id. at 5.
3) “Fourteenth Amendment, Insufficient evidence to convict of Pre-
meditated Attempted First Degree Murder.” Id. at 6.
4) “Denial of a fair trial/Prosecutorial misconduct, misstatements of
law as to the element of 1st Degree Premeditated Murder
(Attempted). Id. at 7.
5) “Denial of a fair trial. Discovery Violation. Withholding of a
critical key report that must be given to the defense prior to trial,
showing that the victim was under the influence and doing Cocaine
at the time of the offense that was committed against him.” Id.
6) “Ineffective assistance of Trial Counsel, in violation of [Suazo’s]
Sixth Amendment of the United States Constitution.” Id. at 8.
7) “The Colorado Court of Appeals and the Trial Court erred in
denying [Suazo’s] Direct Appeal in its rulings affecting [his] Due
Process and his United States Constitutional Rights and his State
Rights.” Id. at 12.
8) “[Suazo’s] sentence is grossly disproportionate and thus violates the
protections afforded by the Eighth Amendment to the U.S.
Constitution against Cruel and Unusual Punishment.” Id. at 14.
9) “[Suazo’s] Sixth . . . and Fourteenth . . . Amendment rights were
violated, ineffective assistance of trial counsel, appellate counsels
(2), and trial court failed to investigate [Suazo’s] mental and
emotional state of mind at time of his crime.” Id. at 15.

On October 25, 2021, the district court issued an order dismissing part of

Claim 7 (concerning the trial court’s alleged refusal to allow evidence or testimony

regarding firearms in the victim’s house) and all of Claim 9 as unexhausted and

procedurally defaulted. The order also directed respondent to file an answer

addressing the merits of the remaining claims.

On April 14, 2022, the district court, having received respondent’s answer,

issued an order denying the remaining claims on the merits.

Final judgment in the case was entered on April 12, 2022. Adams filed a

timely notice of appeal. He has since filed an application for COA with this court.

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II

“A state prisoner whose petition for a writ of habeas corpus is denied by a

federal district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137

S. Ct. 759, 773 (2017). “Federal law requires that he first obtain a COA from a

circuit justice or judge.” Id. (citing 28 U.S.C. § 2253(c)(1)). To obtain a COA, a

state prisoner must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). This requires the prisoner to “sho[w] 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.’” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003) (alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). In other words, the prisoner must show that the district court’s resolution of

the claims was “debatable or wrong.” Slack, 529 U.S. at 484. If the prisoner’s

claims were denied on the basis of a procedural ruling, the prisoner must demonstrate

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

of the denial of a constitutional right and . . . whether the district court was correct in

its procedural ruling.” Id.

The district court’s procedural dismissal of two claims

Here, two of Suazo’s claims were dismissed by the district court on the

procedural ground that they were unexhausted and procedurally barred. As the

district court correctly noted, 28 U.S.C. § 2254(b)(1)(A) provides that “[a]n

application for a writ of habeas corpus on behalf of a person in custody pursuant to

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the judgment of a State court shall not be granted unless it appears that . . . the

applicant has exhausted the remedies available in the courts of the State.”

“Exhaustion,” as we have noted, “requires that the claim be fairly presented to the

state court, which means that the petitioner has raised the substance of the federal

claim in state court.” Grant v. Royal, 886 F.3d 874, 890 (10th Cir. 2018) (quotation

marks omitted). The district court in this case concluded that there was no evidence

in the record establishing that the relevant portion of Claim 7 and all of Claim 9

“were fairly presented to the CCA as federal constitutional claims,” and it thus

concluded those “claims [we]re unexhausted.” ECF No. 41 at 10. The district court

in turn concluded that those two claims were subject to an anticipatory procedural

default because, if Suazo “tried to return to state court now to present these claims in

a collateral attack, they would be untimely” in light of the applicable three-year

statute of limitations that applies under Colorado state law. Id. (citing Colo. Rev.

Stat. § 16-5-402(1)). The district court also noted that, “with limited exceptions not

applicable here, the Colorado Rules of Criminal Procedure bar [Suazo] from raising a

claim in state court that was, or could have been, presented in a prior appeal or

postconviction proceeding.” Id. at 11 (citing Colo. R. Crim. P. 35(c)(3)(VI)).

Suazo, in his application for COA, does not directly address the district court’s

dismissal of the relevant part of Claim 7 and all of Claim 9. Suazo does, however,

make reference to the district court “proceedurally [sic] default[ing] one of his

claims,” and Suazo argues that “he has and can show ‘cause for default’ by and

through the ineffectiveness of trial counsel and various appellate counsel.” App. at 9.

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The only specificity that Suazo provides in support is his reference to his “post-

conviction counsel . . . refus[ing] to argue” a particular claim in his “initial 35(c)

post-conviction motion.” Id. at 10. To the extent this was intended by Suazo as a

challenge to the district court’s dismissal of part of Claim 7 or all of Claim 9, we

conclude he has failed to establish that reasonable jurists would disagree with the

district court’s procedural ruling on those claims. That is because, in relevant part,

there is no constitutional right to counsel in post-conviction proceedings. E.g.,

Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008).

The district court’s dismissal of other claims on the merits

As to the remaining claims alleged in Suazo’s amended application, the district

court dismissed them on the merits. Suazo, in his application for COA, directly or

indirectly refers to six of those claims, i.e., Claims 2, 3, 4, 5, 6, and 8. We therefore

proceed to determine whether Suazo is entitled to a COA on any of those claims.1 As

we explain below, we conclude that Suazo has failed to establish his entitlement to a

COA on any of these claims.

a) Claim 2 – denial of fair trial due to improper question by jury

In Claim 2 of his amended application, Suazo alleged that he was deprived of

his constitutional right to a fair trial when a juror posed a question that the trial court,

without objection, asked of Suazo while he was on the witness stand, i.e., “How did

1
To the extent that Suazo intended to challenge the district court’s dismissal
of the remaining two claims, i.e., Claim 1 and the remaining part of Claim 7, we
conclude he has failed to establish that reasonable jurists could disagree with the
district court’s reasons for dismissing those claims.
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the DNA get on the spoon/knife?”2 ECF No. 25 at 5. Suazo responded, in part, that

he “d[id]n’t know.” ECF No. 53 at 9. Suazo alleged that this was an improper

question to be posed to him, it should not have been permitted by the trial court, and

his trial counsel was ineffective for failing to object to the question.

The district court noted that the CCA, in the course of Suazo’s direct appeal,

reviewed and rejected part of this claim (i.e., the denial of fair trial argument, but not

the ineffective assistance of trial counsel claim3) under plain error review. ECF No.

53 at 9. In the CCA’s view, “[t]he question, although imprecise, was based on a

reasonable inference from the DNA expert’s testimony.” Id. The district court

concluded that the CCA’s analysis did “not contradict or unreasonably apply binding

Supreme Court precedent.” Id. at 10. The district court also rejected Suazo’s

suggestion “that the ‘spoon knife’ was not the weapon used to commit the crimes,”

concluding that “Suazo fail[ed] to present clear and convincing evidence to rebut the

presumption of correctness under [28 U.S.C.] § 2254(e)(1).” Id.

Suazo, in his application for COA, makes a brief reference to this claim, but he

fails to provide any arguments or evidence that would lead reasonable jurists to

2
According to Suazo, “a silver combination spoon/knife was discovered on top
of a wallet inside of a drug paraphernalia box” that belonged to him. ECF No. 25 at
5. Suazo alleges that “[t]he wallet ultimately was found to belong to the victim,” and
that “[t]he silver spoon/knife was tested for DNA and the victims [sic] DNA was
found on it (even though the spoon/knife had no connection to the crime and that the
victim stated in his testimony . . . that he had never seen that knife before).” Id.
3
The district court did not expressly address this portion of Claim 2, but we
conclude, in any event, that this claim does not warrant the issuance of a COA.
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conclude that the district court’s resolution of the claim was debatable or that the

claim is deserving of further review.

b) Claim 3 – sufficiency of evidence to support attempted murder conviction

In Claim 3 of his amended application, Suazo alleged that the evidence

presented at his trial was constitutionally insufficient to allow the jury to convict him

of attempted first degree murder. The district court, in addressing this claim, began

by noting that the CCA considered and rejected this claim on the merits in the course

of Suazo’s direct appeal. The CCA concluded, in pertinent part, that “[v]iewing the

. . . evidence in the light most favorable to the prosecution,” the jury could have

reasonably found “that Suazo acted with deliberation and intent” by “arm[ing]

himself with a tire iron,” “hid[ing] behind his codefendant as she knocked on the

victim’s door,” “str[iking] the victim with the tire iron and attempt[ing] to cut his

throat with a knife,” and “h[olding] the victim while the co-defendant struck him

with a shovel and put a plastic bag over his head.” Id. at 11. The district court

concluded that the CCA’s analysis was not contrary to, or an unreasonable

application of, the Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307

(1979), which outlines the standard for evaluating a claim challenging the

constitutional sufficiency of evidence. Id. at 12–13.

Although Suazo continues to allege in his application for COA that the

evidence presented at his trial was insufficient to support the attempted murder

conviction, he presents no arguments or evidence that would allow reasonable jurists

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to conclude that the district court’s analysis was debatable or that the claim is

deserving of further review.

c) Claim 4 – prosecutorial misconduct/misstatements of law

In Claim 4 of his amended application, Suazo alleged that “[d]uring closing

arguments, the Assistant District Attorney discussed the “after deliberation” element

of first degree murder under Colorado law and “analogized it to that of changing

lanes during a traffic maneuver.” ECF No. 25 at 7. Suazo argued “that this

interpretation was improper” and “impermissibly lower[ed] the prosecutions [sic]

burden of proof.” Id. Suazo also alleged that “[t]he D.A. . . . used statements

calculated to ‘inflame’ the passions and prejudices of the jury concerning the

evidence of a spoon/knife which was proven not to have been used against the victim,

but the D.A. insistently argued to the jury that” it “was the weapon used by [Suazo]

to try and cut the victims [sic] throat with.” Id.

The district court noted that Suazo raised this issue on direct appeal and that

the CCA rejected it on the merits. In doing so, the CCA concluded that the

prosecutor’s analogy to changing lanes was “consistent with the definition of ‘after

deliberation’” set forth in the Colorado statute defining that term. ECF No. 53 at 14

(citing Colo. Rev. Stat. § 18-3-101(3)). As for the prosecutor’s comments about the

spoon/knife, the CCA concluded they “were reasonable inferences from the expert

testimony” indicating that both Suazo’s and the victim’s DNA were found on the

object. Id. The district court concluded there was “no basis for [federal] habeas

relief on this claim” because “the CCA’s decision turn[ed],” in part, “on the

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definition of ‘deliberation’ under Colorado criminal law,” and because it was bound

to accept the CCA’s determination that the prosecutor’s comments regarding the

spoon/knife “were proper under [Colorado] state law.” Id. at 15–16. Lastly, the

district court concluded that “the prosecutorial misconduct claim fail[ed] when

gauged by [the] federal standards” outlined in Darden v. Wainwright, 477 U.S. 168

(1986). Id. at 16. More specifically, the district court concluded that “[t]he CCA’s

rejection of Suazo’s prosecutorial misconduct claim reasonably applied Darden.” Id.

at 16–17.

We conclude that nothing in Suazo’s application for COA could remotely

persuade reasonable jurists that the district court’s resolution of this claim was

debatable or that the claim is deserving of further review.

d) Claim 5 – withholding of evidence that victim was under the influence

In Claim 5 of his amended habeas application, Suazo alleged that his

constitutional right to a fair trial was violated because the prosecution withheld from

the defense, prior to trial, evidence showing that the victim was under the influence

of cocaine at the time of the offense. According to Suazo, “a Doctor who had treated

the victim at the Hospital . . . testified” during the prosecution’s case-in-chief that a

toxicology screening had been performed on the victim and “had come back positive

for drugs, re; Cocaine.” ECF No. 25 at 7. Suazo alleged that neither he nor his trial

counsel “had prior knowledge of this,” and that his trial counsel unsuccessfully

moved for a new trial on this ground (the trial court found that the prosecution had no

prior knowledge of the toxicology report either). Id. Suazo further alleged that

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“[h]ad this critical report been properly disclosed” prior to trial, “defense counsel

could have formulated her case around this issue or even sought out some kind of

mitigating circumstances that could have helped [him] or aided in his defense.” Id. at

8.

The district court noted that on direct appeal the CCA considered the issue and

concluded that the trial court did not abuse its discretion in denying Suazo’s motion

for a new trial. In support, the CCA concluded that “[n]o discovery violation

occurred because the prosecution did not know that the documents existed,” “Suazo

did not seek a continuance,” and “[t]he trial court’s curative instruction was

sufficient to overcome any prejudice to Suazo.” ECF No. 53 at 19. The district court

in turn concluded that the claim failed to provide “[a] basis for [federal] habeas

relief.” Id. The district court noted that the CCA’s findings were “supported by the

state-court record” and “Suazo d[id] not rebut the presumption of correctness

[afforded to those findings] with clear and convincing evidence of his own.” Id. at

19–20 (citing 28 U.S.C. § 2254(e)(1)). The district court further concluded that

“Suazo fail[ed] to establish a Brady violation because the state-court record

confirm[ed] that the prosecution never knew about or possessed the toxicology

report.”4 Id. at 20. “Moreover,” the district court noted, “the CCA reasonably

applied the Supreme Court’s Brady caselaw to conclude that the report was

immaterial to the outcome of Suazo’s trial.” Id.

4
See Brady v. Maryland, 373 U.S. 83 (1963).
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After reviewing Suazo’s application for COA, we conclude that reasonable

jurists could not debate the district court’s resolution of this claim, nor would they

find the claim deserving of further review.

e) Claim 6 – ineffective assistance of trial counsel

In Claim 6 of his amended habeas application, Suazo alleged that his trial

counsel was ineffective in a number of respects. To begin with, Suazo alleged that

“multiple knives” were found “throughout the home of the victim” that “were not

tested for DNA evidence,” and he in turn alleged that his trial counsel was ineffective

for failing to seek DNA testing of those knives and the spoon/knife that was seized

from his own home. Suazo also alleged that his trial counsel should have sought

testing of the plastic bags that were placed over the victim’s head in order to

determine whether the victim had actually chewed through them as he had claimed at

trial to have done. Lastly, Suazo alleged that his trial counsel was ineffective for

failing to advise him he could enter an Alford plea rather than going to trial.

The district court reviewed the CCA’s analysis of these claims and concluded

that there was no basis for granting federal habeas relief on the basis of any of these

claims. First, the district court noted that the CCA determined, in the context of

reviewing one of Suazo’s motions for post-conviction relief, that Suazo’s trial

counsel “made a strategic decision not to test the knives in the victim’s home, and

that,” in any event, “no prejudice to Suazo had been shown under Strickland.”5 ECF

5
See Strickland v. Washington, 466 U.S. 668 (1984).
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No. 53 at 23. Notably, the CCA stated that it “fail[ed] to perceive how a defense

expert in this area could have provided significant assistance” to Souza. Id. The

district court concluded that “[t]he CCA’s decision to deny this ineffective assistance

of counsel claim was not contrary to, or an unreasonable application of, clearly

established federal law under § 2254(d)(1),” and that “Suazo fail[ed] to rebut the

presumption that the state-court’s factual findings were correct.” Id. at 25.

Next, the district court considered Suazo’s claim that his counsel should have

sought testing of the plastic bags placed on the victim’s head. The district court

noted that the CCA considered and rejected this claim on the merits. Specifically, the

CCA concluded that Suazo “failed to demonstrate that any further testing [of the

plastic bags] would have produced sufficient evidence to likely lead to a different

outcome in his trial,” and it therefore rejected his claim of ineffective assistance. Id.

at 26. The district court concluded that the CCA “reasonably applied Strickland” in

rejecting Suazo’s claim. Id. The district court also noted that Suazo failed to explain

in his application “what testing the bag would have revealed, how it would have

added to his defense, or why there was a reasonable probability that the outcome at

trial would have been different.” Id. at 26–27.

Finally, the district court considered and rejected Suazo’s claim that his trial

counsel was ineffective for failing to advise him to enter an Alford plea. The district

court noted that the CCA, in the course of denying Suazo’s second motion for state

post-conviction relief, denied this claim on the merits. The CCA noted, in pertinent

part, that “the record indicate[d] that trial counsel discussed the prosecution’s plea

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offer with Suazo, but he wasn’t interested in it” and in fact “rejected the plea offer

for two reasons: first, the offer required him to plead guilty to a class 2 felony, and

second, it required a stipulated sentence of at least twenty years in the custody of the

[Colorado Department of Corrections].” Id. at 28. The CCA further noted that the

state trial court, in denying Suazo’s second motion for state post-conviction relief,

“implicitly discredited Suazo’s testimony that he would have accepted the plea offer

if he had known he could enter an Alford plea because” entering such a plea “would

have required a guilty plea to a class 2 felony and a stipulated sentence of twenty

years in the custody of the DOC.” Id. The district court concluded that “[t]he CCA’s

decision was not contrary to, or an unreasonable application of, Strickland.” Id. The

district court noted that “[t]he record lack[ed] any evidence that Suazo was ever

offered an Alford plea, or that the prosecution would have agreed to it.” Id. “On top

of that,” the district court noted, “the record ma[de] clear that Suazo failed to show

prejudice because,” regardless of the type of plea, “he refused to plead guilty to a

stipulated 20-year sentence.” Id.

Turning now to Suazo’s application for a COA, we conclude he has failed to

establish that reasonable jurists could debate the district court’s conclusions

regarding any of these ineffective assistance claims.

f) Claim 8 – proportionality of Suazo’s sentences

In Claim 8, Suazo alleged that his cumulative sentence of 88 years “is grossly

disproportionate and thus violates the protections afforded by the Eighth Amendment

to the U.S. Constitution.” ECF No. 25 at 14. Suazo also alleged that “in 2016, the

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Colorado General Assembly amended Colorado’s Crime of Violence Statute . . . to

allow that the crime of Aggravated Robbery no longer mandates a Consecutive

sentence.” Id. (emphasis and capitalization in original). In addition, Suazo asserted

that Colorado law “now requires that the complicator (Applicant) must have had the

intent to commit the underlying offense actually committed by the principal.” Id. He

argues that, in light of “these changed legal standards,” his cumulative sentence is

“grossly disproportionate” and should be vacated and his case remanded to the state

trial court for resentencing. Id.

The district court noted that the CCA considered and rejected Suazo’s

proportionality argument. ECF No. 53 at 29. In doing so, the CCA stated, in

pertinent part:

The postconviction [district] court conducted an abbreviated
proportionality review, correctly noting that attempted first degree
murder, aggravated robbery, and burglary are per se grave and serious
crimes. The court then recited the facts of the case and concluded that
the harm caused or threatened here [was] significant, the crimes
involved violence, and they were crimes of significant magnitude.

We agree with the postconviction court’s determinations. Defendant
barged into the victim’s house, hit the victim several times with a tire
iron, wrestled with him, put a knife to his throat, and tied him to a chair.
A plastic bag or bags were placed over the victim’s head, limiting the
victim’s ability to breathe. Defendant and his codefendant stole $1300
and caused multiple physical injuries to the victim, including
lacerations, traumatic brain injury, and a hematoma. Although a
physician testified that the victim did not suffer serious bodily injury,
there was evidence to the contrary, and the jury found that he did.
Considered individually or collectively, the harshness of the penalty
imposed for each crime is proportionate to the magnitude and gravity of
the crimes committed.

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Accordingly, an extended proportionality review is not required here,
and we conclude that defendant’s sentences are proportionate.

Id. at 30. The district court concluded that, “[m]easured against [applicable]

Supreme Court cases, the CCA was not unreasonable to reject Suazo’s Eighth

Amendment proportionality challenge to his sentences totaling 88 years.” Id. at 32.

In other words, the district court explained, “when considering Suazo’s offenses, no

part of the CCA’s decision rejecting this claim falls so far outside the boundaries of

rational disagreement that the Court could brand it unreasonable under [28 U.S.C.]

§ 2254(d)(1).” Id.

As for Suazo’s arguments in his amended habeas application regarding

post-conviction changes to Colorado law, the district court noted that such changes in

state law “do[] not serve as a basis for federal habeas relief.” Id. at 29 n.5. Although

the district court did not say so in its decision, it appears that Suazo never presented

these same arguments to the CCA.

Turning to Suazo’s application for COA, we conclude he has failed to

establish his entitlement to a COA on any of these arguments. More specifically, he

has failed to establish that reasonable jurists could debate the district court’s

resolution of those arguments.

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IV

The application for COA and the motion to proceed in forma pauperis on

appeal are DENIED and the matter is DISMISSED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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