Appellate Case: 22-1180 Document: 010110793955 Date Filed: 01/06/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 6, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
CHARLES WHITTEN,
Petitioner - Appellant,
v. No. 22-1180
(D.C. No. 1:20-CV-00453-DDD)
DEAN WILLIAMS; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BACHARACH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Charles Whitten, proceeding pro se, requests a certificate of appealability (COA)
to appeal from the district court’s denial of his amended 28 U.S.C. § 2254 habeas
application. We deny a COA and dismiss this matter.
BACKGROUND
A jury found Mr. Whitten guilty of charges of aggravated robbery and menacing
(Case No. 10CR3396) arising out of a bank robbery in Colorado Springs. The trial court
determined he was a habitual criminal and sentenced him to a total of 176 years of
*
This order is not binding precedent except under the doctrines of law of the case,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: 22-1180 Document: 010110793955 Date Filed: 01/06/2023 Page: 2
imprisonment. The Colorado Court of Appeals (CCA) affirmed, and the Colorado
Supreme Court (CSC) denied certiorari.
Mr. Whitten then filed a state post-conviction proceeding under Colorado Rule of
Criminal Procedure 35(c), which the trial court denied. As with the direct appeal, the
CCA affirmed, and the CSC denied certiorari.
Mr. Whitten next filed a § 2254 application and then an amended § 2254
application in federal court. The amended application set forth sixteen claims of
ineffective assistance of trial counsel and two claims of due process violations. However,
Mr. Whitten almost immediately withdrew Claims 12 through 16 because he had not
exhausted them. By order of the federal district court, the state filed a pre-answer
response addressing potential affirmative defenses for the remaining claims. It asserted
that the application was not second or successive, that it appeared to be timely, and that
Mr. Whitten had exhausted Claims 1 through 11 by raising them in his state
post-conviction appeal and Claims 17 and 18 by raising them in his direct appeal. The
district court then directed the state to file an answer addressing the remaining claims on
the merits, and it did so. Ultimately the district court denied the application on the
merits. Mr. Whitten now seeks a COA to appeal.
DISCUSSION
I. COA and Legal Standards
Mr. Whitten must obtain a COA to appeal from the district court's denial of his
§ 2254 application. See 28 U.S.C. § 2253(c)(1)(A). To do so, he must make “a
substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where, as
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here, the district court denied the claims on the merits, “[t]he petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), our review of
state-court decisions is deferential. See, e.g., Pacheco v. El Habti, 48 F.4th 1179, 1192
(10th Cir. 2022). When a state court has adjudicated a claim on the merits, the federal
courts can grant habeas relief only if the applicant establishes that the state-court 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 determination of the facts in light of the evidence
presented in the State court proceeding,” id. § 2254(d)(2). Also, “a determination of a
factual issue made by a State court shall be presumed to be correct,” and “[t]he applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.” Id. § 2254(e)(1). “AEDPA’s deferential treatment of state court decisions
must be incorporated into our consideration of a habeas petitioner’s request for COA.”
Pacheco, 48 F.4th at 1192 (internal quotation marks omitted).
II. Ineffective-Assistance Claims
Claims 1 through 16 alleged Mr. Whitten’s trial counsel was ineffective. As
stated, Mr. Whitten withdrew Claims 12 through 16, leaving Claims 1 through 11 for
adjudication by the federal district court.
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A. Legal Standards
For ineffective-assistance claims, the “clearly established Federal law” is
Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must
show that (1) “counsel’s performance was deficient,” and (2) “the deficient performance
prejudiced the defense.” Id. at 687. The performance prong requires a defendant to show
counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688.
The prejudice prong requires a showing that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
On habeas review, “[t]he question is not whether a federal court believes the state
court’s determination under the Strickland standard was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks omitted). Further,
“because the Strickland standard is a general standard, a state court has even more
latitude to reasonably determine that a defendant has not satisfied that standard.” Id. “A
state court’s determination that a claim lacks merit precludes federal habeas relief so long
as fairminded jurists could disagree on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted);
see also Wood v. Carpenter, 907 F.3d 1279, 1289 (10th Cir. 2018) (“[A] state court’s
application of federal law is only unreasonable if all fairminded jurists would agree the
state court decision was incorrect.” (internal quotation marks omitted)).
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B. Mr. Whitten is not entitled to a COA.
The CCA rejected Mr. Whitten’s ineffective-assistance claims by stating:
Defendant next contends that his trial attorney performed
ineffectively by failing to (1) adequately present a motion to suppress
evidence; (2) consult with an expert; (3) adequately cross-examine State
witnesses; and (4) raise the issue of prosecutorial misconduct. We reject
defendant’s claims because defendant cannot meet the prejudice prong of
Strickland. In other words, defendant cannot show a reasonable probability
that, but for these omissions by counsel, the outcome of the case would
have been different.
R. Vol. I at 359 (citation omitted). The CCA explained that it reached its conclusion
based on “overwhelming evidence” against Mr. Whitten, id., which it went on to
describe. It further stated, “Conversely, defendant has come forward with no evidence
that would have changed the outcome of this case.” Id. at 362.
The federal district court treated Claims 1 through 3 differently than Claims 4
through 11. Perceiving that the CCA had not expressly addressed Claims 1 through 3, it
“looked through” the CCA’s opinion to the decision of the state trial court on those
claims. Id. Vol. II at 520-22. We disagree with this approach. Consistent with the
briefing before it, the CCA broadly summarized the first ineffective-assistance claim as
contending that counsel failed to “adequately present a motion to suppress evidence.” Id.
Vol. I at 359. As briefed, however, this category included the allegations that counsel
“fail[ed] to adequately investigate and present the motion to suppress evidence”; failed to
“adequately challeng[e] the search warrants on the basis of conflicting statements”; and
“fail[ed] to challenge the recovered gun and case.” Id. at 324-25. These are the
circumstances addressed in Claims 1 through 3. We therefore see no reason to think that
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the CCA’s discussion applies only to Claims 4 through 11. Accordingly, the appropriate
evaluation for all of the ineffective-assistance claims is the reasonableness of the CCA’s
determination that Mr. Whitten failed to satisfy Strickland’s prejudice prong.1
The CCA appropriately identified Strickland as the relevant legal standard, and no
reasonable jurist would debate whether its decision was contrary to or an unreasonable
application of Strickland. No reasonable jurist would think it unreasonable for the CCA
to conclude that Mr. Whitten failed to show prejudice in light of the overwhelming
evidence in the record. See Mays v. Hines, 141 S. Ct. 1145, 1149 (2021) (faulting federal
appellate court’s failure to defer to state court’s decision that applicant failed to show
prejudice in light of overwhelming evidence).
Further, no reasonable jurist would debate whether the CCA’s decision was an
unreasonable determination of the facts in light of the record. Mr. Whitten extensively
challenged the ten pieces and categories of evidence the CCA identified. The federal
district court examined the record, concluding with regard to each piece or category that
Mr. Whitten had not overcome § 2254(e)(1)’s presumption of correctness. It further
explained weaknesses in Mr. Whitten’s position, including reliance on speculation and
conjecture. Before this court, Mr. Whitten again challenges the evidence cited by the
CCA. But his arguments do not undermine the district court’s thorough examination of
1
Any error by the district court in evaluating the state post-conviction court’s
decision rather than the CCA’s decision for Claims 1 through 3 does not warrant granting
a COA. Ultimately, no reasonable jurist would debate whether Mr. Whitten is entitled to
habeas relief on his ineffective-assistance claims under § 2254(d)(1) or (2).
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the record. He has not shown that reasonable jurists would debate the determination that
he failed to overcome the presumption of correctness.
III. Due Process Claims
Claims 17 and 18 alleged due process violations. Mr. Whitten does not request a
COA for Claim 18, leaving only Claim 17 for our consideration. In Claim 17, he
challenged the state court’s admission of evidence from a separate witness-intimidation
case and evidence indicating he was on parole at the time of the robbery.
Because “federal habeas review is not available to correct state law evidentiary
errors,” Mr. Whitten “is entitled to relief only if an alleged state-law error was so grossly
prejudicial that it fatally infected the trial and denied the fundamental fairness that is the
essence of due process.” Hooks v. Workman, 689 F.3d 1148, 1180 (10th Cir. 2012)
(brackets and internal quotation marks omitted). Only evidence that “is so extremely
unfair that its admission violates fundamental conceptions of justice” fails the test of
“fundamental fairness.” Dowling v. United States, 493 U.S. 342, 352 (1990) (internal
quotation marks omitted). “Because a fundamental-fairness analysis is not subject to
clearly definable legal elements, when engaged in such an endeavor a federal court must
tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306 F.3d 982,
999 (10th Cir. 2002) (brackets and internal quotation marks omitted).
A. Evidence of Witness Intimidation
The CCA upheld, under Colorado Rule of Evidence 404(b), the admission of
evidence from a separate case charging that Mr. Whitten had intimidated witnesses in the
robbery case. After describing the evidence, the CCA held, “[t]his evidence that Whitten
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attempted to influence the testimony of numerous witnesses who provided significantly
inculpatory testimony is highly probative of a consciousness of guilt, and therefore highly
probative that Whitten committed the charged offenses.” R. Vol. I at 283-84. It found
itself “unable to say that the probative value is substantially outweighed by the danger of
unfair prejudice,” id. at 282, and it further found that the state “did not exploit the unfair
prejudice of the evidence,” id. at 284. The federal district court concluded that admitting
the evidence of witness intimidation did not make Mr. Whitten’s trial fundamentally
unfair because it “was probative as to the witnesses’ credibility and Mr. Whitten’s
consciousness of guilt.” Id. Vol. II at 546.
“[T]he fundamental-fairness inquiry requires [the court] to look at the effect of
the admission of the evidence within the context of the entire trial. Doing so requires
weighing the relevance of the challenged evidence against its prejudicial value, in light of
the other evidence against the petitioner.” Johnson v. Martin, 3 F.4th 1210, 1230
(10th Cir. 2021) (brackets, citation, and internal quotation marks omitted), cert. denied,
142 S. Ct. 1189 (2022). Reasonable jurists would not debate the conclusion that the
evidence was relevant and not unduly prejudicial. That is even more true in light of the
record as a whole. See id. at 1231 (“Where evidence against a defendant is strong, the
likelihood that erroneously admitted evidence will have an unduly prejudicial impact is
lessened.”). Further, to the extent Mr. Whitten complains about the failure to give a
limiting instruction, no reasonable jurist would debate the determination that the omission
of such an instruction did not make the trial fundamentally unfair.
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B. Evidence Related to Parole Status
The CCA also upheld, under Colorado Rules of Evidence 402 and 403, the
admission of evidence that Mr. Whitten was wearing an ankle monitor and was not
within range of the monitoring box at the time of the robbery. The CCA held that the
ankle-monitor evidence was admissible as “evidence of Whitten’s whereabouts at the
time of the robbery.” R. Vol. I at 287. It concluded that the probative value was not
outweighed by the danger of unfair prejudice, given that Mr. Whitten’s parole status was
not mentioned and the exhibits contained only one abbreviated reference to the Colorado
Department of Corrections. The federal district court held that the admission of evidence
related to Mr. Whitten’s parole status did not make the trial fundamentally unfair because
the evidence was relevant and Mr. Whitten failed to show that any prejudice rose to the
level of being unfair.
As with the intimidation evidence, reasonable jurists would not debate the
determination that the ankle-monitoring evidence was relevant and not unduly
prejudicial. See Johnson, 3 F.4th at 1230. Again, this is particularly true in light of the
record as a whole. See id. at 1231.
CONCLUSION
We deny a COA and dismiss this matter. We grant Mr. Whitten’s motion to
proceed without prepayment of costs and fees.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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