Smith v. Archuleta

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

FOR THE TENTH CIRCUIT October 12, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARLON L. SMITH,

Petitioner - Appellant.

v. No. 15-1477
(D.C. No. 1:14-CV-01185-WJM)
LOU ARCHULETA, Warden; CYNTHIA (D. Colo.)
COFFMAN, the Attorney General of the
State of Colorado,

Respondents - Appellees.
_________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________

Marlon Smith, a Colorado state prisoner proceeding pro se,1 applies for a

certificate of appealability (COA) to challenge a district-court order denying his 28

U.S.C. § 2254 application for a writ of habeas corpus. He also seeks leave to proceed

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except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 Smith appears pro se, “we construe his pleadings and papers
liberally, but our role is not to act as his advocate.” Gallagher v. Shelton, 587 F.3d
1063, 1067 (10th Cir. 2009).
in forma pauperis (IFP). Exercising jurisdiction under 28 U.S.C. § 1291, we deny

Smith’s IFP motion, deny his COA application, and dismiss this matter.

BACKGROUND

On May 15, 2003, a jury convicted Smith of first-degree murder, two counts of

attempted first-degree murder, two counts of first-degree assault, first-degree

burglary, three counts of menacing, and a single count of violating a restraining

order. The jury found that, on August 27, 2002, Smith entered a house where his

estranged wife and others were gathered and shot three of the house’s occupants,

killing his wife and wounding others. He appealed his conviction, but the Colorado

Court of Appeals affirmed.2 In June 2005, the Colorado Supreme Court denied his

petition for certiorari.

In February 2006, Smith filed a pro se motion for postconviction relief under

Colo. R. Crim. P. 35. On December 13, 2007, after the state district court appointed

Smith an attorney, Smith filed an amended postconviction motion asserting over 60

claims for relief. After a hearing on November 23, 2009, the state district court

denied relief. On July 5, 2012, the Colorado Court of Appeals affirmed. On October

7, 2013, the Colorado Supreme Court denied his petition for certiorari.

On April 28, 2014, Smith filed a pro se application for a writ of habeas corpus

under 28 U.S.C. § 2254. In his application, Smith raised the following 12 claims as

summarized by the federal district court, Claim Eleven having three subparts:

2
Though the Colorado Court of Appeals affirmed the judgment, it did remand
for correction of the mittimus because of a clerical error.
2
(1) State district court violated his due process rights by refusing to
suppress an unduly suggestive photo-identification procedure;

(2) State district court violated his right to a fair trial by allowing a
putative expert witness to relate theories in psychology that are
unreliable proof of motive, intent and propensities;

(3) State district court violated his due process rights by failing to
remedy the admission of unfounded, inflammatory hearsay
evidence designed to frame the government’s theory of the case;

(4) State district court violated his right to a fair trial by overruling a
well-founded Rule 403 objection without coherence or actual
review of challenged evidence of a 911 audiotape;

(5) State district court violated his due process rights by denying him
an opportunity to suppress collateral use by the government of
prior unconstitutional convictions;

(6) State district court violated his due process rights by failing to
conduct a Weidemer analysis regarding the validity of prior
convictions, burdening his right to testify;

(7) Evidence is insufficient to sustain a guilty verdict for burglary,
felony murder, and violating a restraining order;

(8) Sentence for the offense of attempted felony murder in Count
Four should be vacated because only one killing;

(9) Ineffective assistance of appellate counsel for failure to amend
opening brief when U.S. Supreme Court issued decision in
Crawford;

(10) Crawford due process issue;

(11) Ineffective assistance of trial counsel for failure to conduct
forensic examinations and for:

(i) Failure to investigate and present evidence of wife’s drug
overdose;

3
 (ii) Failure to object to prosecution eliciting expert opinion
from domestic violence expert without tendering her as
expert witness;

(iii) Failure to recognize a nonwaivable conflict of interest; and

(12) Ineffective assistance of postconviction counsel for failure to
present the result of a mental health examination during the
postconviction process and trial counsel’s failure to present these
results to the courts or to the petitioner implicating Martinez v.
Ryan, 132 S. Ct. 1309 (2012).

R. at 480–81 (list formatting altered).

The federal district court denied all of Smith’s claims, some on procedural

grounds and others on substantive grounds. The federal district court dismissed

Claim Two and Claim Four because Smith had failed to exhaust those claims in state

court. R. at 481–89 (dismissing Claim Two and Claim Four “as procedurally

defaulted and therefore barred from federal habeas review”). The federal district

court further dismissed the portion of Smith’s Claim Eleven that asserted his trial

counsel was ineffective for failing to conduct forensic examinations because, among

other reasons, Smith had failed to address the claim in his opening brief. The district

court denied the remaining claims on substantive grounds.

The district court also certified under 28 U.S.C. § 1915(a)(3) that any appeal

from its order “would not be taken in good faith and therefore in forma pauperis

status is denied for the purpose of appeal” and dismissed the action with prejudice. R.

at 689. Smith timely appealed, filing a pro se application for a COA and an IFP

motion.

4
 DISCUSSION

Of his original 12 claims, Smith has abandoned on appeal Claim Eight, Claim

Ten, and Claim Twelve. He contests the procedural dismissal of Claim Two, Claim

Four, and the forensic-examination portion of Claim Eleven. He also contests the

district court’s substantive dismissal of Claim One, Claim Three, Claim Five, Claim

Six, Claim Seven, Claim Nine, and Claim Eleven (subparts (i), (ii), and (iii)). After

noting the appropriate standard of review, we address each claim below and also

consider Smith’s IFP motion.

A. Certificate of Appealability

To appeal the federal district court’s denial of his habeas application, Smith

must first obtain a COA under 28 U.S.C. 2253(c)(1)(A). The analysis we use to

determine whether to grant a COA depends on the district court’s disposition of the

habeas claims. For the claims that the district court denies on the merits, we may

issue a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). In other words, for those claims, Smith must

show 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) (quotation marks omitted). As to the claims the district court

denied on procedural grounds, we may issue a COA only if Smith shows both “that

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

5
the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id.

1. Claim One: Improper Photo-Identification Procedure

In Claim One, Smith asserts that police officers used an overly suggestive

photo-identification procedure to have witnesses identify him and, as a result, that the

trial court erred by refusing to suppress the identifications in violation of his due-

process rights. Largely for the reasons stated in the district court’s well-reasoned

order denying habeas relief, we conclude that reasonable jurists could not debate

whether Claim One should have been resolved differently.

To determine whether the photo-identification procedure in this case was

constitutionally unsound, we use a two-step analysis. See Grubbs v. Hannigan, 982

F.2d 1483, 1489–90 (10th Cir. 1993). “First, we must determine whether the

procedure was unnecessarily suggestive. If the procedure is found to have been

unnecessarily suggestive, we must then weigh the corrupting influence of the

suggestive procedure against the reliability of the identification itself.” Id. (citations

omitted). The “central question” is “whether under the totality of circumstances the

identification was reliable.” Neil v. Biggers, 409 U.S. 188, 199 (1972) (quotation

marks omitted). “The ultimate question of whether the admission of pre-trial

identification testimony violates due process is reviewed de novo on appeal, although

the underlying facts found by the state court are entitled to a statutory presumption of

correctness pursuant to 28 U.S.C. § 2254(d).” Grubbs, 982 F.2d at 1489 n.5.

6
 If we determine that the procedure used in Smith’s case was unnecessarily

suggestive, we will next weigh five factors “against the corruptive effect of a

suggestive pre-trial identification procedure to determine whether the identification

testimony should have been suppressed.” Id. at 1490. The five factors are: (1) “the

opportunity of the witness to view the criminal at the time of the crime”; (2) “the

witness’ degree of attention”; (3) “the accuracy of the witness’ prior description of

the criminal”; (4) “the level of certainty demonstrated by the witness at the

confrontation”; and (5) “the length of time between the crime and the confrontation.”

Neil, 409 U.S. at 199–200.

In Smith’s case, we need not analyze the reliability factors because we

conclude, as did the district court, that the photo lineup was not impermissibly

suggestive. Smith’s sole argument on this point is that the photo lineup was

impermissibly suggestive because “the photo used of Mr. Smith was distinctly

different than any others as it was a Colorado driver’s license photo and not a mug

shot.” Petitioner’s Opening Br. at 3(b). As best we can tell, Smith has mentioned this

irregularity just once before in his state- and federal-court briefing. And then he did

so only in a footnote, where it is unclear that he is arguing that the lineup was

suggestive because his was the only photo that was not a mug shot. See R. at 595 n.2

(noting in his federal-district-court traverse that “[t]he photograph that was used of

Applicant in the photo array was from his Colorado State ID, not a mug shot from the

police department,” but failing to say whether the other images in the photo lineup

were mug shots and what about his driver’s license photograph made it so obviously

7
different from the other photos). Based on this footnote, it isn’t surprising that the

district court failed to explicitly address Smith’s contention.

Assuming that we may even address this argument raised for the first time on

appeal and never addressed by the Colorado state courts, we note that the federal

district court—citing in part the state district court’s original review of the

photographs—indirectly resolved the issue. The district court agreed with the state

district court’s findings that the photo array consisted of black men of similar size

and shape, with similar hairstyles, and with similar complexions, all standing in front

of similar backgrounds. The federal district court further agreed with the state district

court in concluding that the photos “had no stark contrasts that would effectively

make [Smith’s] photo ‘jump out’ at the viewer.” R. at 645. On these bases, we

conclude that the photo array was not impermissibly suggestive.3 We note that we

need not address Smith’s other arguments concerning the reliability of Diane

Sanchez, Tabitha White, and Robert Gutierrez. Those arguments are appropriately

suited for the second step of an analysis we abandon at step one.

Because we conclude that reasonable jurists could not debate whether Claim

One should have been resolved differently, we deny a COA for this claim.

3
Smith also argued in his habeas petition that the six-person photo array was
suggestive because it only included three individuals who were old enough to be an
uncle of a 17-year-old victim of the shooting who exclaimed that the perpetrator was
her “Uncle Marlon.” R. at 14. Smith does not reassert this argument on appeal. Even
if this argument were properly before us on appeal, though, it would not affect our
conclusion that the photo array was not impermissible suggestive.
8
 2. Claim Three: Failure to Remedy Improper Hearsay Admission

In Claim Three, Smith argues that he was “deprived of the fundamental

fairness essential to the concept of due process” when a witness at trial referred to

evidence that the state district court had already excluded. R. at 597. At trial, during

the prosecution’s direct examination of Diane Sanchez, Sanchez twice referred to

Smith’s having broken his wife’s arm sometime before the date of the shooting.

Because the state district court had in a pretrial order disallowed the government

from eliciting testimony about this arm-breaking, Smith moved for a mistrial after

Sanchez’s volunteered, non-responsive testimony about it. The state district court

denied the motion because the prosecution had not intentionally elicited Sanchez’s

improper testimony and because it concluded that a curative jury instruction would

sufficiently repair any prejudice. In his habeas petition and on appeal, Smith argues

that the jury instruction was insufficient to correct the error and that the state district

court should have declared a mistrial. The federal district court denied relief on this

ground, and we conclude that reasonable jurists could not debate the federal district

court’s Claim Three denial.

We follow in the district court’s footsteps and quote the Colorado Court of

Appeals’ discussion of the events related to Claim Three:

Before trial, the prosecution sought leave to introduce evidence
of uncharged conduct—namely, occasions when defendant had made
contact with his wife in violation of a restraining order. The trial court
granted the motion but disallowed evidence that defendant had broken
his wife’s arm.

9
 At trial, however, a witness ran afoul of the court’s order. In a
nonresponsive answer to the prosecutor’s question, the witness indicated
that defendant had broken his wife’s arm:

Prosecutor: In relationship to the time that he came into
your house and was shooting, how much time
had passed between her telling you that he
was getting mean and that time?

Witness: I’d say about two, three weeks when she told
me that he really broke her arm, that she
didn’t fall and get hurt.

Defense counsel objected, and the court sustained the objection.
Defense counsel also made a motion for a mistrial, which was denied.
Shortly thereafter, the witness again referred to the broken arm:

Prosecutor: Was [the wife] upset when she was talking to
you?

Witness: She just—she just told us. She didn’t say
nothing bad. She just told me he broke her
arm. He’s not as good as we thought he was.

Defense counsel again requested a mistrial. The court again
denied this request.

R. at 167–68. The trial court ultimately gave the jury the following limiting

instruction:

Yesterday you heard [the witness] testify as to an incident regarding a
broken arm. You are instructed to disregard and ignore any testimony
regarding this broken arm. You are to delete it from your notes. You are
to delete it from your minds. You’re in no way to consider it in any
way, shape, form, manner or style. You will also receive at the end of
the evidence a written instruction as to that effect.

R. at 649 (alteration in original).

A state district court’s “evidentiary and procedural rulings may not be

questioned unless [the habeas petitioner] demonstrates that the remark by [a witness]

10
was so prejudicial in the context of the proceedings as a whole that he was deprived

of the fundamental fairness essential to the concept of due process.” Nichols v.

Sullivan, 867 F.2d 1250, 1253 (10th Cir. 1989). The federal district court concluded

that the improper testimony here did not establish a constitutional violation because,

in the context of the proceedings as a whole, the testimony did not deprive Smith of

the fundamental fairness essential to the concept of due process. R. at 649–51.

Implicit in the federal district court’s conclusion is the view that the limiting

instruction remedied any potential prejudice from the testimony.

On appeal, Smith argues that “through allowance of this prejudicial, hearsay

evidence, [the state district court] allowed the jury to consider that a leopard doesn’t

change his spots, i.e., that Mr. Smith acted in conformity with his alleged previous

bad behavior.” Petitioner’s Opening Br. at 3(e). Acknowledging the trial court’s

limiting instruction, Smith further argues that “[w]e all know as well, while a

curative instruction was tendered for the jury not to consider the suppressed

evidence, that (with [all] respect to the jurors), it is virtually impossible to un-ring

that bell.” Id.

We agree with the federal district court that given the overwhelming evidence

at trial—including admissible testimony regarding Smith’s increasingly angry

behavior toward his wife in the weeks leading up to the shooting—the two references

to a broken arm were not so prejudicial in the context of the proceedings as a whole

that Smith was deprived of due process. This is especially true given the state district

court’s limiting instruction to the jury, despite Smith’s argument regarding the

11
futility of curative instructions. See Nichols, 867 F.2d at 1254 (noting that a limiting

instruction “would have cured any possible prejudice” resulting from a witness’s

unsolicited remark even about a defendant’s prior convictions and incarcerations);

Morales v. Jones, 357 F. App’x 184, 185 (10th Cir. 2009) (unpublished) (agreeing

with magistrate judge’s conclusion that “the admission of [improper] evidence did

not render Petitioner’s trial fundamentally unfair, particularly in light of the limiting

instruction given to the jury”).

Because we conclude that reasonable jurists could not debate the propriety of

the district court’s Claim Three conclusion, we deny a COA for this claim.

3. Claim Five: Improper Use of Evidence of Prior Convictions

In Claim Five, Smith argues that the state district court improperly denied his

motion to exclude evidence of his prior felony convictions by applying an

inapplicable time-bar statute. As a result, Smith alleges that the state district court

denied him his constitutional right to due process. Specifically, Smith submits that

“the lower courts misinterpreted the plain meaning of [Colo. Rev. Stat. § 16-5-402(1)

(2015)], in turn failing to observe the requisite fundamental fairness which is

essential to the very concept of justice.” Petitioner’s Opening Br. at 3(g) (citing

Lisenba v. California, 314 U.S. 219, 236 (1941)); see Lisenba, 314 U.S. at 236 (“As

applied to a criminal trial, denial of due process is the failure to observe that

fundamental fairness essential to the very concept of justice.”). The federal district

court denied habeas relief on this claim, concluding that

12
 [t]he state district court’s decision to deny [Smith’s] motion to exclude
prior convictions because the motion was subject to the three-year
limitation under Colo. Rev. Stat. § 16[-]5-402 . . . was not contrary to or
an unreasonable application of any clearly established rule of federal
law as determined by the U.S. Supreme Court, or a decision that was
based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceedings.

R. at 653–54. We agree with the district court and conclude that no reasonable jurist

could debate whether Claim Five should have been resolved differently.

Before we reach our COA analysis, we must clear up an apparent

inconsistency in Smith’s arguments under Claim Five. In his COA application before

us, Smith says that he “sought suppression of his prior convictions . . . [because]

none of the charges were relevant to the immediate case.” Petitioner’s Opening Br. at

3(f). This characterization of his motion to exclude is at odds with his position in his

state-court postconviction motion to vacate and in his habeas petition. In his state-

court postconviction motion to vacate, Smith said that he sought to exclude evidence

of two prior felony convictions by attacking the convictions’ validity. Specifically, in

his state-court postconviction motion, Smith said that his trial counsel alleged only

“that Mr. Smith’s convictions were the results of various constitutional infirmities.”

R. at 245. Similarly, in his habeas petition before the federal district court, Smith

argued that “the district court violated the Petitioner’s constitutional right to due

process and reversibly erred by denying him opportunity to suppress collateral use by

the government of prior unconstitutional convictions.” R. at 24 (capitalization

altered). To the extent Smith attempts to argue that the state district court erred by

refusing to exclude evidence of his prior convictions because they were irrelevant (as

13
opposed to constitutionally invalid),4 we note that this argument didn’t appear in his

habeas petition. We therefore don’t consider this particular argument and won’t grant

Smith a COA on this issue. United States v. Banks, 355 F. App’x 123, 125–26 (10th

Cir. 2009) (unpublished) (declining to issue a COA on an issue where arguments

appeared for “the first time on appeal”). Still, because Smith proceeds pro se, we

liberally construe his filings and consider his general argument that the district court

erred in denying habeas relief on Claim Five as it appears in his habeas petition.

The state district court denied Smith’s motion to exclude evidence of his prior

convictions, applying a state statute that provides that “no person who has been

convicted as an adult . . . under a criminal statute of this or any other state of the

United States shall collaterally attack the validity of that conviction . . . unless such

an attack is commenced within the applicable time period.” Colo. Rev. Stat. § 16-5-

402(1). Smith doesn’t dispute that, if section 16-5-402 applies, a three-year time limit

applies to a collateral attack of prior felony convictions. See id. (providing for a

4
For example, in his COA application, Smith argues as follows:

At trial, Mr. S[m]ith sought suppression of his prior convictions, i.e.,
that they not be allowed to be utilized at trial, as none of the charges
were relevant to the immediate case. (Mr. Smith’s priors were one count
each of simple robbery, possession of marijuana, and check fraud). Mr.
Smith was not (as described in the plain language of the statute),
challenging the validity or adjudication of said, and instead only seeking
to suppress their use in his current trial as other wrong acts, as the
prosecution had filed notice of intent to introduce said.

Petitioner’s Opening Br. at 3(h).
14
three-year time period for collateral attacks on all felonies other than “class 1

felonies”).

As both the state district court and federal district court recognized in this

case, Colorado courts have applied section 16-5-402 to exclude evidence of prior

felony convictions to impeach a defendant, People v. Fultz, 761 P.2d 242, 243–44

(Colo. App. 1988), abrogated on other grounds by People v. Wiedemer, 852 P.2d 424

(Colo. 1993), and to exclude evidence of prior felony convictions to establish

predicate offenses underlying separate charges, Wiedemer, 852 P.2d at 430.

Moreover, in Fultz, the Colorado Court of Appeals concluded that the term

“collateral attack” in section 16-5-402(1) “includes any motion to prohibit the

prosecution from using a prior conviction.” Fultz, 761 P.2d at 243. Smith’s motion

collaterally attacked the constitutional validity of his prior felony convictions and, on

that basis, Smith’s motion sought to prohibit the prosecution from using the

convictions for any purpose. In other words, Smith’s motion collaterally attacked his

prior convictions much like the motions in Wiedemer and Fultz did. His motion is

similarly subject to the three-year time bar, which he didn’t meet. We thus conclude

that no reasonable jurist could debate the propriety of the federal district court’s

dismissal of Claim Five.5

5
Section 16-5-402 provides an exception to the applicable time bar “[w]here
the court hearing the collateral attack finds that the failure to seek relief within the
applicable time period was the result of circumstances amounting to justifiable
excuse or excusable neglect.” Colo. Rev. Stat. § 16-5-402(2)(d). To the extent this
impacts a due-process analysis, we note, as did the federal district court, that “[t]he
trial court did not categorically deny [Smith’s] motion to exclude. Defense counsel
15
 4. Claim Six: Improper Burden on Smith’s Right to Testify

Smith’s Claim Six is closely tied to Claim Five. In Claim Six, Smith argues

that, “because the trial court disallowed suppression of Mr. Smith’s prior criminal

convictions, if he testified, they would be introduced, regardless of their relevancy.

Hence the failure to suppress impermissibly chilled Mr. Smith’s right to testify.”

Petitioner’s Opening Br. at 3(h). Smith couches this claim in terms of an exception to

the section 16-5-402 time bar. The exception allows a defendant to collaterally attack

a prior conviction “[w]here the court hearing the collateral attack finds that the

failure to seek relief within the applicable time period was the result of circumstances

amounting to justifiable excuse or excusable neglect.” Colo. Rev. Stat. § 16-5-

402(2)(d). In his COA application, Smith argues that the state district court chilled

his right to testify “by failing to allow a determination of whether Mr. Smith was

entitled to [the] justifiable excuse/excusable neglect exception to the statutory time

limitations of [Colo. Rev. Stat. § 16-5-402(1)].” Id. The federal district court denied

habeas relief on this claim, and we conclude that no reasonable jurist could debate

the district court’s decision.

In denying habeas relief on Claim Six, the federal district court first cited the

Colorado Court of Appeals’ discussion of Claim Six, noting that the state district

court did indeed address the time-bar exception. We do the same:

argued justifiable excuse . . . and sought and was granted alternate defense counsel to
review the constitutionality and time bar issues raised regarding the prior
convictions.” R. at 653.
16
 Defendant next argues that the court erred in finding that he had
failed to demonstrate justifiable excuse or excusable neglect for his
untimely collateral attack. We again disagree.
As to the 1995 conviction, defendant argued that the three-year
limit did not begin to run until 2000, when he completed his sentence to
probation. The trial court correctly rejected this argument. Where, as
here, a defendant does not file a direct appeal, the three-year period
begins when [the] sentence is imposed. People v. Hampton, 857 P.2d
441, 444 (Colo. App. 1992), aff’d, 876 P.2d 1236 (Colo. 1994).
With regard to the 1981 conviction, defendant argued he was not
informed during his 1995 trial of his right to bring a collateral attack.
The trial court correctly rejected this argument. Ignorance does not
constitute justifiable excuse or excusable neglect. See People v.
Mershon, 874 P.2d 1025, 1036 (Colo. 1994) (lack of knowledge about
the time bar does not constitute justifiable excuse or excusable neglect
as a matter of law). Moreover, even if defendant had brought a collateral
attack during his 1995 trial, it would have been time barred. See People
v. Fagerholm, 768 P.2d 689, 693 (Colo. 1989) (grace period to allow
collateral attacks on conviction obtained before enactment of § 16-5-402
expired on July 1, 1989).

R. at 173–74. With this as background, the federal district court “f[ound] the [state

courts’] factual determination [regarding the inapplicability of the time-bar

exception] correct and that [Smith] has failed to rebut the presumption of correctness

by clear and convincing evidence.” R. at 656–57.

Smith’s COA application is devoid of any meaningful argument that this

district-court finding was unfounded. Smith simply notes that “Mr. Smith had no

forum within which to post a challenge as to the use of his priors in some unforeseen

or possible later charge.” Petitioner’s Opening Br. at 3(i). We don’t see how this

argument supports Smith’s Claim Six, which alleges that the state district court failed

to “allow a determination” of whether the time-bar exception applied in Smith’s case.

Id. at 3(h). This argument doesn’t call into question the federal district court’s

17
finding that the state district court did indeed allow Smith an opportunity to argue

that the time-bar exception applied. It certainly doesn’t attack the reasonableness of

the state district court’s conclusion that the exception didn’t apply.

We thus conclude that no reasonable jurist could debate whether the district

court erroneously denied habeas relief for Smith’s Claim Six and deny a COA on this

claim.

5. Claim Seven: Insufficient Evidence

In Claim Seven, Smith argues that there was insufficient evidence for a

rational jury to find him guilty of burglary, felony murder, and violating a restraining

order. At trial, the government introduced some evidence of a pending restraining

order that Smith’s wife had received on August 14, 2002, a couple of weeks before

her murder. The prosecution implied that Smith’s learning of the restraining order

motivated him to commit the burglary and murder. Smith argues that the evidence

was insufficient to show that he even knew about the restraining order by the day of

his wife’s murder. And Smith argues that, without this motive evidence, the jury had

insufficient evidence to convict him of burglary, felony murder, and violating the

restraining order. The district court thoroughly reviewed the evidence upon which the

jury could have reasonably based its findings and rejected Smith’s claim. We

conclude that reasonable jurists could not debate the district court’s well-reasoned

analysis and conclusion that habeas relief isn’t warranted on Claim Seven.

“When reviewing the sufficiency of the evidence on a habeas corpus petition,

the relevant question is ‘whether, after viewing the evidence in the light most

18
favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Turrentine v. Mullin, 390 F.3d

1181, 1197 (10th Cir. 2004) (quoting Jackson v. Virginia, 307, 319 (1979)). Because

of our respect for “the jury’s province to weigh the evidence and to draw reasonable

inferences from testimony presented at trial,” our review is “sharply limited.” Id.

(quotation marks and alterations omitted). “[A] court ‘faced with a record of

historical facts that supports conflicting inferences must presume—even if it does not

affirmatively appear in the record—that the trier of fact resolved any such conflicts in

favor of the prosecution, and must defer to that resolution.’” Id. (quoting Messer v.

Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)).

In his COA petition, Smith fails to show why the evidence mentioned by the

district court in its order dismissing his habeas petition was insufficient to support the

jury’s findings at trial.6 Smith simply argues that “even when viewed in a light most

favorable to the prosecution, the evidence would not allow any rational trier of fact to

find, beyond a reasonable doubt that he committed felony murder which was based

on the predicate offense of burglary, i.e., that he went into his house without

permission because there was a restraining order lodged against him.” Appellant’s

6
In his petition for a COA, Smith stated that he “attache[d] Appendix A,
which is a list of transcripts and/or exhibits which show[] by clear and convincing
evidence that he had no knowledge of” the August 14, 2002 restraining order.
Appellant’s Opening Br. at 3(j). After an exhaustive search of the appellate record
and Smith’s briefing, we were unable to locate this appendix. While a list
highlighting particular evidence would have been helpful, we have thoroughly
reviewed the record before us and the existence of any such appendix would have no
impact on our disposition of Smith’s COA application.
19
Opening Br. at 3(j). While Smith might be able to point to evidence tending to show

that he didn’t know about the restraining order, he fails to show why the jury had

insufficient evidence to make the contrary finding that he did know about the

restraining order.

The district court ultimately rejected Smith’s insufficient-evidence claim,

finding that “[t]he evidence was sufficient to support a finding that [Smith] was

aware of the restraining order and as a result violated the order and committed the

burglary and felony murder.” R. at 737. Specifically, the district court noted that the

jury had before it the following evidence upon which it could have reasonably based

its findings:

(1) Mr. Garcia’s testimony, which, contrary to [Smith’s] claim, does not
include a definitive statement that on August 27, 2002, [Smith] did not
know of a pending hearing on August 28, 20002; (2) Mr. Mack’s
testimony that [Smith] did know on August 27, 2002, he was subject to
a restraining order; and (3) Ms. Taken-Alive’s testimony that on August
27, 2002, [Smith] told her he had to go to court with the victim at 8:00
a.m. the next morning.

R. at 737. We agree with the federal district court that a rational jury could have

found Smith guilty of burglary, felony murder, and violating a restraining order in the

face of this evidence as well as other evidence at trial. The district court’s thorough

review of the evidence at trial and Smith’s failure to address or rebut the district

court’s findings convince us that no reasonable jurist would disagree with the district

court’s conclusion that this evidence was sufficient to support the jury’s ultimate

findings. We therefore deny Smith’s petition for a COA on this issue.

20
 6. Claim Nine: Ineffective Assistance of Appellate Counsel7

In Claim Nine, Smith argues that his appellate counsel on direct appeal was

ineffective for failing to amend Smith’s opening brief to allege a claim under

Crawford v. Washington, 541 U.S. 36 (2004), which had been decided two months

after Smith filed his opening brief and eleven months before the Colorado Court of

Appeals ruled on Smith’s direct appeal. The district court denied habeas relief on

Claim Nine, noting that Smith had “failed to demonstrate a reasonable probability

that, but for the counsel’s unprofessional errors, the result of the proceeding would

have been different.” R. at 673. We conclude that no reasonable jurist could debate

the soundness of the federal district court’s decision, and deny a COA for this issue.

In Crawford, the Supreme Court held that, “in order for testimonial evidence

to be admissible, the Sixth Amendment ‘demands what the common law required:

unavailability and a prior opportunity for cross-examination.’” Michigan v. Bryant,

562 U.S. 344, 354 (2011) (quoting Crawford, 541 U.S. at 68). Smith claims that his

direct-appeal counsel was ineffective for failing to raise a Crawford claim attacking

police officers’ testimony at trial.8 Indeed, three different officers testified at trial

about statements the deceased victim made to them when they responded to calls

7
On April 4, 2016, Smith submitted supplemental authority related to this
claim under Fed. R. App. P 28(j). We have considered the authority cited in Smith’s
Rule 28(j) letter.
8
In his traverse in the federal district court, Smith abandoned an argument that
his direct-appeal counsel was ineffective for failing to raise a Crawford claim
attacking statements the deceased victim made to a friend, focusing instead on the
police officers’ testimony.
21
reporting a verbal altercation and to calls asserting that Smith had violated earlier

restraining orders.9

The Colorado Court of Appeals’ discussion of Smith’s ineffective-assistance-

of-appellate-counsel claim frames the issue well:

The postconviction court found that the victim’s statements to
law enforcement officials were testimonial, and the admission of the
testimony denied defendant his due process right to confrontation.
However, the postconviction court relied on Vasquez v. People, 173
P.3d 1099 (Colo. 2007), to conclude that defendant had forfeited his
right to confrontation. Vasquez holds that, ‘where . . . (1) the witness is
unavailable; (2) the defendant was involved in, or responsible for,
procuring the unavailability of the witness; and (3) the defendant acted
with the intent to deprive the criminal justice system of evidence, the
defendant then forfeits his right to [confrontation].” Id. at 1104.
A year after Vasquez was announced, the United States Supreme
Court clarified its position on the forfeiture doctrine, and explained that
forfeiture by wrongdoing is an exception to the right to confrontation
only where the defendant acted with the intent to prevent the declarant
from testifying. [Giles v. California, 554 U.S. 353, 361 (2008)].
“[W]here the evidence suggest[s] that the defendant . . . caused a person
to be absent, but [did] not [do] so to prevent the person from
testifying—as in the typical murder case involving accusatorial
statements by the victim—the testimony [i]s excluded unless it was
confronted or fell within the dying-declarations exception.” Id. at 361–
62. Statements are admissible under the forfeiture doctrine only where
the defendant’s “wrong” was designed to prevent a witness from
testifying. Id. at 365.

9
Specifically, Deputy Aaron Baker testified about a conversation that he had
with the victim on August 10, 2002, when he responded to a call about a verbal
altercation. As a result of this call, Smith was arrested for domestic violence,
harassment, and criminal mischief. Deputy Baker testified that, upon Smith’s release
the following day, Smith was issued a temporary restraining order. Officer John
Surma testified about a conversation that he had with the victim on August 12, 2002,
when he responded to a call alleging a violation of a restraining order. Officer Mark
Garcia testified about a conversation that he had with the victim on August 14, 2002,
when he responded to another call alleging a violation of a restraining order.
22
R. at 368–70 (certain alterations and omissions in original). The Colorado Court of

Appeals then concluded that it didn’t need to “address whether defendant’s actions

were sufficient to satisfy the intent requirement of Giles because defendant is unable

to show that he was prejudiced by appellate counsel’s failure to raise the Crawford

issues on appeal.” Id. at 371.

Indeed, to establish that counsel was ineffective, Smith must “demonstrate that

counsel’s performance (1) was unconstitutionally deficient, and (2) resulted in

prejudice.” United States v. Watson, 766 F.3d 1219, 1225 (10th Cir. 2014) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). And, of course, “there is no

reason for a court deciding an ineffective assistance claim to . . . address both

components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697; see id. (“In particular, a court need not determine

whether counsel’s performance was deficient before examining the prejudice suffered

by the defendant as a result of the alleged deficiencies.”). The Colorado Court of

Appeals tackled Claim Nine by proceeding directly to the prejudice prong, and the

federal district court followed suit. Specifically, the federal district court concluded

that Smith had “failed to demonstrate a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” R. at

673. As support for its conclusion, the federal district court noted that “[s]ix

individuals were able to identify [Smith] either by seeing or hearing him at the time

of the shooting. One of the individuals who saw [Smith] commit the shootings had

known him for a number of years, referred to him as uncle, and stated his name in the

23
911 call she made.” R. at 673–74. The Colorado Court of Appeals recited even more

evidence against Smith and noted that his only “theory of defense at trial was

misidentification, and that he was not the shooter.” R. at 371–72.

In his COA application, Smith argues that he was prejudiced because the

victim’s statements to officers went to his “degree of guilt” and that, without the

statements, “he could reasonably have been found guilty of second degree murder

instead of first.” Petitioner’s Opening Br. at 3(m). Having reviewed the record and

the previous courts’ list of the considerable evidence against Smith, this bald

assertion on appeal isn’t enough to grant a COA on Claim Nine. No reasonable jurist

could debate the district court’s denial of the ineffective-assistance-of-appellate-

counsel claim.

In Claim Nine, Smith also argues that his direct-appeal counsel was ineffective

because, had his counsel raised the Crawford issue, Smith’s case would have become

the Giles case. In other words, Smith argues that his case was essentially Giles before

Giles, so he was prejudiced because his case could have made it to the Supreme

Court before Giles did. In Smith’s own words, his argument is as follows:

Taking it step-by-step, had appellate counsel amended and added the
Crawford claim he most certainly would have argued not only that the
hearsay was testimonial and that there was no exception to the hearsay
doctrine that allowed said. The reviewing court would have determined
(as it did anyway), that the error was harmless and Mr. Smith forfeited
his right by killing the victim. This issue would have progressed and Mr.
Smith would have presented his Crawford claim to the U.S. Supreme
Court in advance of that presented in Giles. Accordingly, there is a
reasonable probability that had counsel raised the Crawford issue, the
outcome of Mr. Smith’s appeal would have been different and he would
have stated a valid claim under Strickland.

24
Petitioner’s Opening Br. at 3(l) (emphasis added). The federal district court denied

this portion of Claim Nine, noting that (1) Smith had first made the argument in his

traverse, Loggins v. Hannigan, 45 F. App’x 846, 849 (10th Cir. 2002) (unpublished)

(refusing to consider petitioner’s argument when he first raised the argument in his

traverse); (2) the argument was conclusory and insufficient to warrant habeas relief,

see Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001) (noting that

conclusory allegations were insufficient to warrant habeas relief); (3) the argument

wasn’t raised in the opening brief in his state-court postconviction proceedings; and

(4) the argument failed on the merits because he failed to assert how he was

prejudiced by his direct-appeal counsel’s failure to raise the Crawford claim. In light

of these several deficiencies, we conclude that no reasonable jurist could decide

Smith’s Claim Nine differently. Thus, we deny Smith’s COA request.

7. Claim Eleven: Ineffective Assistance of Trial Counsel

In Claim Eleven, Smith argues that his trial counsel was ineffective for three

reasons, which we discuss below. As with Claim Nine, to establish that counsel was

ineffective, Smith must “demonstrate that counsel’s performance (1) was

unconstitutionally deficient, and (2) resulted in prejudice.” Watson, 766 F.3d at 1225

(citing Strickland, 466 U.S. at 687). And, again, a court may proceed directly to the

prejudice prong of the Strickland analysis. See Strickland, 466 U.S. at 697.

25
 a. Failure to Investigate and Present Evidence

In his first ineffective-assistance claim, Smith argues that his trial counsel was

ineffective because she failed to “raise [a] non-motive defense.” Petitioner’s Opening

Br. at 3(n). The federal district court explained Smith’s argument as follows:

In this claim, [Smith] asserts that trial counsel was ineffective for
not investigating and presenting evidence that he rescued his wife from
a prescription drug overdose prior to the shooting. [Smith] contends that
this evidence would have rebutted the prosecution’s theory that [Smith]
premeditated his wife’s murder. [Smith] further contends trial counsel
stipulated that this evidence would not be admitted unless [Smith]
testified; but the evidence could have been admitted otherwise through
the victim’s medical records, which were available because the records
were disclosed to the district attorney. Finally, [Smith] asserts that
another person was present when [Smith] discovered his unconscious
wife, but trial counsel elected not to have this person testify.
In the Traverse, [Smith] further asserts that trial counsel should
have presented the suicide attempt evidence, along with evidence that
the shooting was committed by someone else as a result of a drug debt
owed by the victim.

R. at 674 (citations omitted). Again, the federal district court quoted the Colorado

Court of Appeals’ analysis of this claim at length. We do the same:

Because of the difficulties inherent in evaluating an attorney’s
conduct without relying on the distorting effects of hindsight, “a court
must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial
strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)). Thus, in any ineffective assistance case, “a
particular decision . . . must be directly assessed for reasonableness in
all circumstances, applying a heavy measure of deference to counsel’s
judgments.” Id. at 691.
Mere disagreement as to trial strategy will not support a claim of
ineffectiveness. People v. Bossert, 722 P.2d 998, 1010 (Colo. 1986).
The decision to call a particular witness at trial is a tactical decision,
and thus, rests within the discretion of trial counsel. [Davis v. People,

26
 871 P.2d 769, 773 (Colo. 1994)]. Trial counsel’s decision not to call
certain witnesses is bolstered where such testimony would open the
door to presentation of damaging evidence by the prosecution. Id.
Here, trial counsel testified at the postconviction hearing that she
investigated defendant’s claim that he rescued his wife from a drug
overdose, but decided not to present such evidence at trial. Trial counsel
testified that the length of time between the victim’s overdose and the
shooting was significant, and thus affected the probative value of the
evidence. According to her testimony, trial counsel believed that
defendant would likely have to testify to succeed in admitting his state-
of-the-mind evidence, but recommended against defendant taking the
stand because his testimony would allow the People to introduce other
incriminating evidence. Moreover, despite defense counsel’s opposition,
the trial court granted the People’s motion in limine to exclude any
evidence that the victim was suicidal because of its minimal probative
value.
In light of this evidence, we perceive no error in the
postconviction court’s finding that trial counsel’s decision to advise
defendant not to testify was a reasonable strategic decision and did not
fall outside the range of reasonable professional assistance. Indeed, after
the trial court granted the motion in limine, defense counsel was
prohibited from presenting evidence that the victim was suicidal.

R. at 375–77. With this as background, the federal district court denied Smith habeas

relief on this portion of his ineffective-assistance claim. We agree with the district

court’s determination and deny his request for a COA.

In his COA application, Smith argues that the federal district court erred in

denying his ineffective-assistance-of-trial-counsel claim for two reasons. First, in

arguing that his trial counsel should have introduced evidence tending to show that

he had saved his wife’s life after she experienced a prescription-drug overdose, Smith

notes that his wife’s near-death experience occurred much closer in time to his wife’s

murder than the federal district court or his trial counsel believed: “Counsel said that

it was some six months prior to the killing (which the lower court relies on), however

27
this simply isn’t true . . . . Mr. Smith cannot prove this without the assistance of

counsel and thus asks this Court to remand on this claim . . . .” Petitioner’s Opening

Br. at 3(o). We understand Smith to argue that, because his wife’s overdose (and his

life-saving actions) was closer in time to her murder than his trial counsel or the

federal district court believed, his trial counsel could have successfully presented this

evidence to the jury to show that he didn’t want his wife to die. Smith’s COA

application ignores the federal district court’s analysis of this claim:

The Court has reviewed the state court transcripts for the
evidentiary hearing held in his Rule 35(c) postconviction motion
proceeding. [Smith]’s claim that trial counsel was ineffective in not
thoroughly investigating the law and facts regarding the victim’s suicide
attempt is not supported by the Rule 35(c) evidentiary hearing record.
First, contrary to [Smith’s] claim that the victim’s suicide attempt was
within two weeks of the shooting, [Smith] stated during the Rule 35(c)
hearing that “[i]t was close to around somewhere within six months or
so, or less.”
Furthermore, during the hearing [Smith] states he told trial
counsel that Maurice Cooper, LaShawn Moffitt, and Mitch Lewis were
witnesses to the suicide attempt, but counsel did not interview them.
Trial counsel testified at the Rule 35(c) hearing that she did interview
family members, Maurice Cooper and Mitch Lewis, regarding the
suicide attempt and they provided information to counsel relevant to
[Smith’s] state of mind regarding his wife; but she opted not to
introduce the evidence because [Smith] most likely would have had to
testify to succeed in introducing the statement-of-mind evidence. The
trial court, however, granted a motion in limine for the prosecution that
prohibited the introduction of the suicide attempt.

R. at 678. Thus, in Smith’s own words, the overdose occurred sometime about six

months before his wife’s murder. And, regardless of when the overdose happened,

the federal district court noted that the state district court granted a motion in limine

excluding evidence of the overdose. This being so, we agree with the federal district

28
court’s conclusion that Smith has “not demonstrated a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” R. at 680; see Strickland, 466 U.S. at 694 (“The defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.”).

Second, Smith argues in his COA application that the federal district court and

his trial counsel inappropriately speculated about the consequences of Smith

testifying at his own trial. In Smith’s own words:

Defense counsel also stated that the prosecution would have been
allowed to introduce other 911 calls concerning previous domestic
violence calls by the victim if the evidence of Mr. Smith’s saving of the
victim’s life were to come in. Respectfully this . . . is . . . an assumption
that the trial court would have ruled in this fashion. Not once do
Respondents or the lower court point to a place in the record where the
trial court ruled upon this issue. Frankly speaking because they cannot.

Petitioner’s Opening Br. at 3(o). In addressing this argument, it’s helpful to once

again state Smith’s ineffective-assistance claim: Smith asserts that his trial counsel

was ineffective because she failed to present evidence that Smith had helped save his

wife’s life after she experienced a prescription-drug overdose. It appears that, after a

thorough investigation, Smith’s trial counsel had concerns about the viability of

presenting this evidence as a defense. Smith’s trial counsel didn’t think the evidence

could have been introduced without Smith testifying, and Smith’s trial counsel had

understandable concerns about what evidentiary doors could open if Smith testified.

To the extent Smith’s argument above attacks the trial counsel’s strategy in deciding

to omit evidence of the victim’s overdose, we note that a counsel’s performance isn’t

29
deficient as long as it “falls within the wide range of reasonable professional

assistance” and “might be considered sound trial strategy.” Strickland, 466 U.S. at

689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). And, regardless, Smith

ignores a fact crucial to the district court’s habeas decision: The state district court

granted a motion in limine (which Smith’s trial counsel opposed) seeking to exclude

evidence of the victim’s overdose. Smith doesn’t explain how his trial counsel’s

speculation and ultimate strategic decision prejudiced his trial in light of the state

district court’s order. Thus, we conclude that no reasonable jurist would debate that

the district court properly denied his habeas petition because Smith failed to

“demonstrate[] a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” R. at 680. We deny this

portion of his COA application.

b. Failure to Present Expert Testimony

Smith next argues that his trial counsel was ineffective for failing to offer the

testimony of an expert in response to a prosecution witness who testified about “(1)

the procedure for obtaining a restraining order in Colorado; (2) how victims

sometimes are manipulated by offenders to not follow through with a restraining

order; and (3) how victims worry about how the offender will feel when served with

the order.” R. at 681. Specifically, Smith argues as follows:

At Mr. Smith’s 35(c) hearing, trial counsel testified in pertinent
part that she didn’t even consider obtaining a rebuttal expert and didn’t
know of anyone who would testify differently than the state’s expert.
Respectfully, this is a clear case of failure to investigate. While
Mr. Smith, due to his incarcerated status cannot immediately point to an

30
 expert who would have testified differently, it is well known that jurors
accept what experts say (the C.S.I. syndrome), as being indisputable.

***

Respectfully, Mr. Smith submits that counsel had an obligation to
conduct sufficient investigations to discover and present an expert
which would have rebutted the state’s expert. As previously noted,
counsel concedes she didn’t do so and didn’t even consider the
possibility of obtaining such an expert. . . . Accordingly, Mr. Smith was
denied the effective assistance of counsel required by the Sixth
Amendment.

Petitioner’s Opening Br. at 3(p)–3(q).

We note that this argument is much different than the arguments that appear in

Smith’s habeas petition. Indeed, the federal district court never addressed this alleged

deficiency in Smith’s trial counsel’s performance because Smith had never claimed

that his trial counsel was ineffective for failing to locate an expert witness. Instead,

Smith argued in his habeas petition that his trial counsel was ineffective for, among

other things, failing to object to the prosecution witness’s testimony. Thus, because

this issue wasn’t presented to the district court, “we adhere to our general rule against

considering issues for the first time on appeal.” United States v. Viera, 674 F.3d

1214, 1220 (10th Cir. 2012); see Patrick v. Patton, 634 F. App’x 220, 222 n.4 (10th

Cir. 2015) (unpublished) (declining to consider issues in a petitioner’s COA

application that “were not presented in his petition”).

c. Failure to Recognize Conflict of Interest

In the third and final portion of his ineffective-assistance-of-trial-counsel

claim, Smith argues that his trial counsel was ineffective for failing to recognize a

31
nonwaivable conflict of interest. Specifically, Smith argues in his COA application

that his trial counsel “was forced to cross-examine a witness who was represented by

an attorney from the same public defender’s office as that of Mr. Smith’s counsel.”

Petitioner’s Opening Br. at 3(r). This general statement of Smith’s argument is

consistent with the arguments he raised in his habeas petition and in the state court.

Yet the district court denied habeas relief on this claim, again citing the Colorado

Court of Appeals’ analysis at length. We also quote the Colorado Court of Appeals’

analysis:

Defendant further contends the trial court failed to recognize a
nonwaivable conflict. In its order following the postconviction hearing,
the court dismissed this claim as “spurious at best since [defendant’s]
trial counsel recognized that . . . her office could not represent the
witness in a criminal matter and immediately withdrew and alternate
defense counsel was appointed to represent the witness.”
Trial counsel testified at the postconviction proceeding:

Q: Did your office at some point represent Ms. Taken-
Alive [one of the prosecution’s witnesses] in a felony case
here in Colorado Springs?

A: Apparently.

But once that attorney realized she was a witness in
[defendant’s] case, our office moved to withdraw and
A.D.C. was appointed. I think it was the same day.

Q: Did you follow the policy of the Public Defender’s
office once you found out about the conflict?

A: Yes.

Q: Do you ever remember notifying [defendant] of this
potential conflict?

A: I think so.

32
 The record supports the postconviction court’s finding that this
claim was “spurious at best.” This conduct does not support a claim of
ineffectiveness. See Strickland, 466 U.S. at 690–91; [People v.
Villarreal, 231 P.3d 29, 36 (Colo. App. 2009)].

R. at 381–82 (certain alterations in original). The federal district court agreed with

the Colorado Court of Appeals’ analysis, noting that “[b]ecause [Smith’s] claims are

conclusory and vague and he does not point to any clear and convincing evidence to

the contrary, the Court finds that [Smith] has not demonstrated a reasonable

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

would have been different.” R. at 687 (citing Strickland, 466 U.S. at 694). Again,

then, the federal district court denied habeas relief on Strickland’s prejudice prong.

But, in his COA application, Smith doesn’t seem to contest the district court’s

analysis of his claim in its broadest sense. Instead, Smith seems to narrow his

argument in his COA application, noting that the federal district court and state

courts “all indicated that Alternate Defense Counsel, i.e., private counsel not

connected to the public defender’s office was appointed. Respectfully this isn’t the

case. While another attorney was appointed to represent the witness when counsel

discovered the witness was represented by her, the attorney who was appointed was

not private counsel, but instead an attorney from counsel’s same office.” Petitioner’s

Opening Br. at 3(r). In other words, Smith is alleging that he was prejudiced because

the alternate defense counsel didn’t cure any existing conflict of interest. As with

Smith’s claim that his trial counsel was ineffective for failing to locate an expert,

discussed above, we note that this conflict argument is completely different from the

33
arguments that appear in Smith’s habeas petition. Thus, because this issue wasn’t

presented to the district court, “we adhere to our general rule against considering

issues for the first time on appeal.” Viera, 674 F.3d at 1220; see Patrick, 634 F.

App’x at 222 n.4 (unpublished) (declining to consider issues in a petitioner’s COA

application that “were not presented in his petition”). We deny Smith’s COA

application on his ineffective-assistance-of-trial-counsel claim.10

8. Unexhausted Claims & Claim Eleven

Having addressed all of Smith’s habeas claims that the federal district court

decided on the merits, we now turn to the claims that the federal district court

decided on procedural grounds. Again, as to the claims that the district court denied

on procedural grounds, we may issue a COA only if Smith shows both “that jurists of

reason would find it debatable whether the petition states a valid claim of the denial

of a constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 (quotation

marks omitted).

a. Claim Two

In Claim Two, Smith asserts that the state district court violated his right to a

fair trial by allowing a “putative expert witness to relate theories in psychology that

10
We further note that, even if we construed Smith’s COA application to
disagree with the federal district court’s ruling that the conflict of interest didn’t
prejudice Smith’s trial, we would agree with the district court’s denial of habeas
relief. As in the federal district court, Smith’s COA application doesn’t point to any
prejudice he may have suffered as a result of this conflict in light of his trial
counsel’s curative actions after she recognized that a conflict existed.
34
are unreliable proof of motive, intent and propensities.” R. at 480. The district court

concluded that this claim was “procedurally defaulted and therefore barred from

federal habeas review” because Smith had failed to present this claim on direct

appeal in state court. R. at 487. In his COA application, Smith doesn’t argue that he

adequately presented this claim on direct appeal in state court.11 Of course, this isn’t

necessarily the end of Smith’s Claim Two:

There are two circumstances where a federal court may nevertheless
consider claims subject to an anticipatory procedural bar: (1) if the
prisoner has alleged sufficient cause for failing to raise the claim and
resulting prejudice or (2) if denying review would result in a
fundamental miscarriage of justice because the petitioner has made a
credible showing of actual innocence.

Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014) (quotation marks omitted).

In his COA application, Smith argues that the federal district court erred by

concluding that he couldn’t show cause for his procedural default.12 In the federal

district court, in his traverse, Smith argued that he had shown cause for failing to

raise Claim Two on direct appeal because “the default occurred at a time when he

had a constitutional right to assistance of counsel, i.e., on direct appeal.” After this

assertion, Smith cited Coleman v. Thompson, 501 U.S. 722 (1991), and accurately

cited that case as saying that “[w]here a petitioner defaults a claim as a result of the

11
Even if he had, we note that the federal district court thoroughly reviewed
Smith’s state-court briefing, including the portions that Smith said raised the claim,
and concluded that “[n]othing . . . indicates that [Smith] presented a federal
constitutional claim in state court with respect to Claim Two.” R. at 483. We agree
with the district court’s conclusion.
12
Smith doesn’t argue that denying review would result in a fundamental
miscarriage of justice.
35
denial of the right to effective assistance of counsel, the State, which is responsible

for the denial as a constitutional matter, must bear the cost of any resulting default

and the harm to state interests that federal habeas review entails.” Coleman, 501 U.S.

at 754. Smith further noted that “[p]rejudice will turn on whether [Claim Two] has

merit or not.” R. at 442. Given the juxtaposition of Smith’s assertion and his citation

to Coleman, the district court interpreted Smith as arguing that his direct-appeal

counsel’s ineffective assistance caused the procedural default of Claim Two.

The federal district court recognized that “[i]neffective assistance of counsel

may establish cause excusing a procedural default.” R. at 486 (citing Jackson v.

Shanks, 143 F.3d 1313, 1319 (10th Cir. 1998)). Then the district court said that

“[Smith], however, must show [that] ‘some objective factor external to the defense

impeded counsel’s efforts to comply with the State’s procedural rule’ and [Smith

must also] have ‘presented to the state courts as an independent claim before it may

be used to establish cause for a procedural default.’” R. at 486 (citing Murray v.

Carrier, 477 U.S. 478, 488 (1986)). Applying this standard to Smith’s case, the

district court concluded that Smith’s “claim that because he had a constitutional right

to assistance of counsel he has shown cause for any procedural default is conclusory

and vague.” R. at 487. The federal district court then continued: “[Smith] does not

demonstrate that some objective factor external to the defense impeded counsel’s

efforts to comply with the State’s procedural rule and that he has presented this

argument to the state courts as an independent claim.” Id.

36
 We certainly agree with the federal district court’s conclusion that Smith’s

argument—that he has shown cause for Claim Two’s procedural default by alleging

that he had a constitutional right to assistance of counsel—is conclusory and vague.

We agree with the district court’s interpretation of Smith’s traverse. In other words,

we also believe that Smith is arguing that his direct-appeal counsel was ineffective

for failing to raise Claim Two. But Smith has never made the necessary arguments

under the Strickland standard to support this argument. See Murray, 477 U.S. at 488

(“So long as a defendant is represented by counsel whose performance is not

constitutionally ineffective under the standard established in Strickland v.

Washington, . . . we think that the existence of cause for a procedural default must

ordinarily turn on whether the prisoner can show that some objective factor external

to the defense impeded counsel’s efforts to comply with the State’s procedural

rule.”). We can’t address whether Smith’s direct-appeal counsel’s ineffectiveness

constitutes cause for Smith’s procedural default of Claim Two when Smith has failed

to argue that his direct-appeal counsel was ineffective for this reason under

Strickland. As just one example, Smith never attempts to show that “counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466

U.S. at 687. Smith doesn’t even cite Strickland in his discussion of Claim Two’s

procedural issues. Instead, he makes the bald assertion that he’s shown cause simply

because he had a constitutional right to counsel on direct appeal. Smith does indeed

have a right to effective assistance of counsel on direct appeal. But to show cause for

37
a procedural default, Smith must show that his direct-appeal counsel was ineffective.

Without arguments under Strickland, Smith’s cause argument is woefully inadequate.

Ineffective assistance is but one method of showing cause for a procedural

default, though. See Frye v. Raemisch, 546 F. App’x 777, 785 (10th Cir. 2013)

(unpublished) (noting that “[c]ause may be shown by either actual ineffective

assistance of counsel or some objective factor external to the defense that impeded

efforts to comply with state procedures” (emphasis added)). The district court

recognized this and concluded that Smith also couldn’t show cause via some

objective factor external to the defense. We agree with the district court’s procedural

analysis here13 because Smith argued that he showed cause only because of his direct-

13
We do have one concern with the district court’s analysis, though. In
discussing the standard for showing cause, the district court correctly stated that
ineffective assistance could establish cause for a procedural default. But, saying
“however,” the district court said that Smith had to establish some objective factor
external to his defense. This could be read as requiring Smith to show both
ineffective assistance of counsel under the Sixth Amendment and some objective
factor external to his defense to show cause for a procedural default. But, as the
Supreme Court noted in Murray and confirmed in Coleman, “if the procedural default
is the result of ineffective assistance of counsel, the Sixth Amendment itself requires
that responsibility for the default be imputed to the state.” Murray, 477 U.S. at 488.
In other words, constitutional ineffective assistance of counsel is an objective factor
external to the defense. See Coleman, 501 U.S. at 754–55 (discussing Murray in
depth and noting that “[a]ttorney error that constitutes ineffective assistance of
counsel is cause” for procedural default). It’s unclear whether the district court
required Smith to show both ineffective assistance and an objective factor external to
the defense. If it did so, that requirement was error. But the district court’s
conclusion that Smith’s ineffective-assistance argument was conclusory and vague is
sufficient, on its own, to deny relief on Claim Two. If Smith failed to argue how his
direct-appeal counsel was ineffective, Smith couldn’t have shown cause via that
route. See Frye v. Raemisch, 546 F. App’x 777, 785 (10th Cir. 2013) (unpublished)
(noting that “[c]ause may be shown by either actual ineffective assistance of counsel
or some objective factor external to the defense that impeded efforts to comply with
38
appeal counsel’s ineffectiveness. Having described above why his argument was

inadequate, and having no other argument to turn to, it follows that he hasn’t shown

some other factor external to the defense. See Murray, 477 U.S. at 488. Because no

reasonable jurist would find it debatable whether the district court was correct in its

procedural ruling, we deny his COA application for Claim Two.

Even if Smith had properly argued that his direct-appeal counsel was

ineffective for failing to raise Claim Two, we note that he never made this separate

claim in his habeas petition. As the Supreme Court has held, “an ineffective-

assistance-of-counsel claim asserted as cause for the procedural default of another

claim can itself be procedurally defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453

(2000). We addressed above Smith’s only claim that his direct-appeal counsel was

ineffective, and Smith’s claim didn’t involve appellate counsel’s failure to raise

Claim Two. Instead, it raised appellate counsel’s failure to amend Smith’s opening

brief to raise a Crawford claim. In his COA application, Smith doesn’t address this

issue. He never argues that his procedural default of this ineffective-assistance claim

should be excused for cause or any other reason. We therefore deny a COA on Claim

Two.

b. Claim Four

In Claim Four, Smith argues that the state district court violated his right to a

fair trial when it admitted into evidence a recording of a witness’s 911 call placed

state procedures” (emphasis added)). Therefore, we deny a COA despite any potential
error in the district court’s analysis.
39
immediately after the shooting. Specifically, Smith argues that the district court

should have excluded the 911 recording under Fed. R. Evid. 403 and the district court

also erred in “admitt[ing] the tape without even listening to it.” R. at 23. The federal

district court dismissed Claim Four as procedurally defaulted. The entirety of Smith’s

argument in his COA application is as follows:

Mr. Smith will respectfully rely on the arguments presented above when
addressing Claim 2, as again the lower court cites, at least in pertinent
part that Mr. Smith has not shown that some objective factor to the
defense caused the procedural default, i.e., failure to cite proper federal
authority on direct appeal does not allow exhaustion of a claim.

Petitioner’s Opening Br. at 3(t). We find it difficult to understand Smith’s argument

here, but because he cites to his Claim Two argument, we assume that he again

argues that he has shown cause to excuse his Claim Four procedural default on

grounds that his direct-appeal counsel was ineffective for failing to raise the

constitutional 911-recording issue. To better understand Smith’s argument on appeal,

it also helps to look at the portion of the federal district court’s analysis of Claim

Four that follows the court’s conclusion that Claim Four was unexhausted:

[Smith’s] claim that because he had a constitutional right to assistance
of counsel he has shown cause for any procedural default is conclusory
and vague. Also, his claim that counsel should have supplemented any
pending brief based on Crawford and Davis may demonstrate that some
objective factor external to the defense impeded counsel’s efforts to
comply with the State’s procedural rule, e.g. new law, but he has not
shown that he has presented this argument regarding Claim Four to the
state courts as an independent claim.

R. at 488–89 (citation omitted).

40
 Simply put, the district court correctly concluded that Smith had procedurally

defaulted his claim that ineffective assistance of his appellate counsel was cause for

excusing a procedural default on Claim Four. True, Smith argued that his direct-

appeal counsel was ineffective for failing to raise a Crawford claim about police

officers’ testimony about the victim’s statements (a claim we reject above). But

Smith never argued that his direct-appeal counsel was ineffective for failing to raise a

claim that the state district court violated his right to a fair trial when it admitted the

911 recording.14 We therefore deny a COA on Claim Four, noting that no reasonable

jurist would disagree with the federal district court’s procedural ruling.

c. Claim Eleven

In Claim Eleven, Smith argues that his trial counsel was ineffective for several

reasons. The federal district court reached the merits on three of these reasons and

denied habeas relief. We reviewed those three claims above and denied a COA on

each of them. But the federal district court didn’t address the merits of Smith’s claim

that his trial counsel was ineffective for failing “to conduct forensic examinations.”

R. at 489. Instead, the federal district court reasoned as follows:

14
On direct appeal, Smith’s counsel did argue that the district court
erroneously admitted the 911 recording under Rule 403. Yet, as the federal district
court noted when it concluded that Smith’s Claim Four was unexhausted, Smith
never tied this issue to “a fair trial violation based on a federal constitutional claim.”
R. at 488. To the extent Smith’s COA application argues that the district court erred
in this conclusion, we note that we have thoroughly reviewed Smith’s state-court
briefs and conclude that no reasonable jurist would question the district court’s
determination that Smith procedurally defaulted Claim Four by failing to bring before
the state courts a federal constitutional claim.
41
 In his Reply, [Smith] asserts that his ineffective assistance of trial
counsel claim regarding the failure to conduct forensic examinations
was fully and fairly presented to the state courts. [Smith] contends that
the district court failed to address the forensics claim, which the court
has a duty to address all claim claims in a Rule 35(c) motion, and on
direct appeal he requested the [Colorado Court of Appeals] to remand
this claim back to district court for a ruling so that claim could be
addressed on appeal, but the [Colorado Court of Appeals] elected not to
do so.
The [Colorado Court of Appeals] acknowledged [Smith’s] failure
to address [this] claim when it affirmed the denial of the Rule 35(c)
postconviction motion. The [Colorado Court of Appeals] found no
reversible error in the district court’s denial of [Smith’s] motion based
on incompleteness. [Smith] does not specifically address the forensic
claim in the opening brief. Furthermore, [Smith’s] claim that the district
court failed to follow state procedure in a Rule 35(c) motion is not a
federal constitutional claim. A challenge to the state postconviction
proceedings does not present a cognizable federal issue. See Sellers v.
Ward, 135 F.3d 1333, 1339 (10th Cir. 1998) (a claim that focuses on
postconviction remedy and not a judgment for basis of incarceration is
not a cognizable federal constitutional claim in a federal habeas action);
Steele v. Young, 11 F.3d 1518, 1524 (10th Cir. 1993); see also Del
Rantz v. Hartley, 577 F. App’x 805, 807 (10th Cir. 2014).
Nonetheless, Claims Eleven(i), (ii), and (iii) were presented and
addressed by the [Colorado Court of Appeals]. The Court will dismiss
only the forensic claim in Claim Eleven.

R. at 489–90 (record citations omitted). In addressing this procedural ruling in his

COA application, Smith says only the following: “The lower court did not address

the fact that Mr. Smith submitted that this claim was fully and fairly exhausted. If

this isn’t sufficient, Mr. Smith will rely on the same factors he did on Claims 2 and 4

supra as listed immediately above.” Petitioner’s Opening Br. at 3(u) (record citations

omitted). As the above-quoted portion of the federal district court’s analysis of Claim

Eleven shows, the federal district court did address Smith’s argument that this

portion of Claim Eleven was fully and fairly exhausted. The district court thoroughly

42
reviewed the state courts’ analysis of this claim before denying relief. We conclude

that reasonable jurists couldn’t disagree with the federal district court’s procedural

ruling and deny COA on Claim Eleven.

As to Smith’s one-sentence argument referring us to his arguments under

Claim Two and Claim Four, we note that we won’t craft a party’s arguments for him,

even if he proceeds pro se. Perry v. Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir.

1999). Because this argument isn’t sufficiently developed to allow for meaningful

appellate review, we deny COA on the forensic-investigation portion of Claim

Eleven. McCain v. McCollum, 606 F. App’x 425, 430 n.2 (10th Cir. 2015)

(unpublished).

B. Motion to Proceed In Forma Pauperis

Under 28 U.S.C. § 1915(a)(3), the district court certified that this appeal would

not be taken in good faith. Nonetheless, we may consider Smith’s IFP motion under

Fed. R. App. P. 24(a)(5). See Rolland v. Primesource Staffing, LLC, 497 F.3d 1077,

1078–79 (10th Cir. 2007). Having reviewed Smith’s IFP motion on appeal, we

conclude that Smith has not demonstrated the existence of “a financial inability to

pay the required fees and the existence of a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812–13 (10th Cir. 1997) (quotation marks omitted). Thus, we

deny his IFP motion.

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 CONCLUSION

For the foregoing reasons, we deny Smith’s IFP motion and deny Smith’s

application for a COA on all of his habeas claims.

Entered for the Court

Gregory A. Phillips
Circuit Judge

44