1 Vialpando’s petition was filed after April 24, 199 6, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AED PA”); as a result, AEDPA’s provisions apply to this case. See Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320 (1997)). AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). This requires Vialpando to show “that reasonable jurists could debate whether (or, for that matter, agree th at) the petition should have been resolved in a different manner or that the iss ues presented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, (continued...) 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 24, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY VIALPANDO, Petitioner-Appellant,

v. RICHARD SOARES and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 04-1230 (D.C. No. 99-M-1560) (D. Colo.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.
State prisoner Timothy Vialpando requests a certifi cate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 225 4 petition. 1 For substantially1 (...continued)

484 (2000) (quotations omitted). Because the district court denied Vialpando a COA, he may not appeal the district court’s decisio n absent a grant of COA by this court. Vialpando has contemporaneously filed an appeal of a separate habeas denial challenging his conviction for sexual assaul t on a child, No. 04-1229, which is the subject of an order on this same date. -2- the same reasons set forth by the district court, w e DENY Vialpando’s request for
a COA and DISMISS

. Following a four day jury trial, Vialpando was conv icted of sexual assault on a child and sexual assault in the first degree i n Colorado state courts. His conviction was upheld on direct appeal. In 1989, V ialpando filed a pro se motion for post-conviction relief under Colorado Rule of C riminal Procedure 35(c), in which he alleged, among other errors, that his coun sel was ineffective because he failed to personally interview the victim’s mother, author of an exculpatory letter, and failed to offer her testimony at trial. Vialpa ndo argued that the victim’s mother would have testified that her daughter admitted to falsely accusing Vialpando, and that it was therefore professionallyunreasonable for trial counsel not to call the mother as a witness. Vialpando als o claimed that, notwithstanding any credibility questions the prosecution could hav e raised, there was a reasonable probability that if the victim’s mother had been called, the result of the trial would have been different. Following a heari ng on the motion for postconviction relief in 1997 with appointed counsel, the district court denied relief.2Vialpando also asserts that the district court abu sed its discretion in failing to

hold an evidentiary hearing. Although a hearing is required “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief,” § 2255, we will not disturb the trial court’s decision unless we have a “definite and firm conviction that the lo wer court made a clear error of judgment or exceeded the bounds of permissible choi ce in the circumstances.” McEwen v. City of Norman , 926 F.2d 1539, 1553-54 (10th Cir. 1991). After a review of the record, we have no such conviction. -3- The Colorado Court of Appeals (“CCA”) affirmed the denial of Vialpando’s request for Rule 35(c) relief, and the Colorado Sup reme Court denied certiorari. Under AEDPA, if a claim is adjudicated on the merit s in state court, we will grant habeas relief only if that adjudication resulted in a decision “that was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court of the United States” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C . § 2254(d)(1)-(2). In response to Vialpando’s allegations of ineffecti ve assistance of counsel, the district court denied relief because Vialpando failed to demonstrate that the CCA applied the wrong legal standard, or that its d ecision was based on an unreasonable determination of facts in light of the evidence presented at the state court proceeding. We agree with the district court ’s conclusion. 2In evaluating the ineffective assistance of counsel claim in coll ateral state court proceedings, both the trial court and CCA identified and applied the two-part test announced in-4-

Strickland v. Washington , 466 U.S. 668 (1984), and concluded that the decis ion not to personally interview the victim’s mother, orcall her as a witness was purely a tactical decision. This conclusion was ba sed in part on the trial court’s evaluation of the letter upon which Vialpando’s cla im was based: any experienced trial lawyer . . . taking a good lo ok at [the letter] would view this witness – potential witness, [the v ictim’s mother], as a serious problem. I mean there’s enough ammunitio n in here for cross-examination for someone to spend, I suppose, a day or two on, if they really wanted to press it. In any event, t his is a purely tactical decision, which the Court finds to be a perfectly a dequate basis. I mean you can tell from reading this letter that thi s person would be a disaster on the witness stand. I can figure that m uch out without ever having laid eyes on her. In any event, that decisi on is purely a tactical one, within the purview of the defense cou nsel, and not a decision to be made by the client. The district court found no error in the state courts’ application of Strickland . Because we do not discern an unreasonable determ ination of facts or an unreasonable application of the standards for de termining ineffectiveness of counsel in the state courts’ evaluation of this cla im, we agree. After careful review of Vialpando’s application, th e district court’s order denying relief, and the material portions of the re cord on appeal, and after according the appropriate deference due under AEDPA , we conclude that Vialpando’s claims are without merit. Accordingly, Vialpando has failed to make “a substantial showing of the denial of a constitut ional right.” § 2253(c)(2).-5-

Vialpando ’s application for a COA is DENIED and the appeal is DISMISSED

. ENTERED FOR THE COURT Carlos F. Lucero Circuit Judge