* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable Robin J. Cauthron, Chief District Jud ge, United States District Court for the Western District of Oklahoma , sitting by designation. 

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

### AUG 18 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KINSHASA COOLEY,

Petitioner-Appellant,

v. GARY WATKINS; ATTORNEY GENERAL FOR THE STATE OF COLORADO,

Respondents-Appellees. No. 03-1420 (D.C. No. 02-B-1394 (PAC))

(D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, MURPHY , Circuit Judge, and CAUTHRON , ** Chief District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Petitioner Kinshasa Cooley, a Colorado state prison er, was convicted by a jury of burglary, kidnaping, aggravated robbery, as sault, and sexual assault. After concluding direct appeal and post-conviction procee dings in state court, Cooley filed a petition for a writ of habeas corpus in fed eral court, pursuant to 28 U.S.C. § 2254. He asserted that: (1) the prosecution withheld exculpatory evidence from the defense, contrary to the holdings of Kyles v. Whitley , 514 U.S. 419 (1995) and Brady v. Maryland , 373 U.S. 83 (1963); (2) during jury selection, th e prosecution excused a prospective juror on the basis of race, contrary to the holding of Batson v. Kentucky , 476 U.S. 79 (1986); and (3) Cooley’s trial counse l was constitutionally ineffective under the standard of Strickland v. Washington , 466 U.S. 668 (1984). A magistrate judge rejected C ooley’s claims of error on the merits without holding an evidentiary hearing. Upo n de novo review, the district court adopted the magistrate judge’s report and rec ommendation and dismissed Cooley’s § 2254 petition with prejudice. Cooley now challenges the district court’s order de nying his petition, rearguing the three claims made in the district court. He also asserts that he was entitled to an evidentiary hearing. Previously, th is court granted a certificate of appealability (COA) on the Kyles/Brady issue. See 28 U.S.C. § 2253(c)(1)(A) (providing that, in the absence of a COA, a habeas petitioner may not appeal).-3-

We affirm the district court’s ruling on that issue and deny COA on the remaining issues.
DISCUSSION Suppression of exculpatory evidence Suppression “of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment.” Brady , 373 U.S. at 87. Generally, evidence is material “if there i s a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles , 514 U.S. at 433. In this habeas action, we view petitioner’s claim under the deferential standard s et out in 28 U.S.C. § 2254(d). Where, as here, petitioner’s claims were adjudicate d on the merits in state court proceedings, this court may grant habeas relief only where the state court decision was “contrary to, or involved an unreasonable appli cation of, clearly established Federal law, as determined by the Supreme Court” orwas “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. At his criminal trial, the evidence indicated that Cooley (as identified by the victims) and three other armed men forced entry into a home, and “bound, beat, and terrorized the victims, while ran sacking the house in search of money they believed to be present.” Aplt.’s App. at 140 ( People v. Cooley ,-4-

No. 95CA0849 (Colo. Ct. App. Feb. 6, 1997) (not sel ected for official publication)). After several hours, the robbers le ft, taking “cash, jewelry and other items” with them. Id. Cooley based his defense on a mistaken identity theory, presenting testimony “from his wife that he had been home asleep with her on the night of the crime.” Id . at 141. Before trial, the prosecution had disclosed to Cool ey that a gun case designed for the type of gun used in the incident h ad been found a few houses away from the victims’ home and that the case conta ined a serial number. On the last day of trial, an investigating detective’s tes timony added new information. The detective stated that the gun case had been tra ced through the serial number to a man named Morrell and that the police had trie d but failed to contact him. During closing argument, Cooley used this testimonyto claim that Morrell was the true robber. On federal habeas review, the magistrate judge assi gned to the case evaluated the entire record of Cooley’s trial and o bserved that given the victims’ positive identification of Mr. C ooley and the fact that the jury convicted Mr. Cooley despite hearing evidence that Mr. Cooley was not the purchaser of the gun, there is no reasonable probability that the outcome of the trial would hav e been different if the defense had been given the information about th e purchaser of the gun prior to trial. Id. at 330. The magistrate judge concluded that the s tate courts’ determination on the immateriality of Morrell’s name was consistent with clearly-established-5-

federal law. She therefore recommended denial of h abeas relief on the Brady/Kyles issue. Upon our examination of the record, we det ermine that this claim fails for substantially the same reasons set forth in the report and recommendation of the magistrate judge. Exclusion of African-American prospective juror Cooley, who is African-American, seeks a COA on his claim that the prosecution violated his equal protection rights byexercising a peremptory challenge to exclude an African-American woman from the jury. See Batson , 476 U.S. at 89 (holding that a prosecutor may not e xercise a peremptory challenge on the basis of race). A COA may issue “only if th e applicant has made a substantial showing of the denial of a constitution al right” on specified issues. 28 U.S.C. § 2253(c)(2). To make a substantial show ing, “a petitioner must show that reasonable jurists could debate whether (or, f or that matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)) (internal quotation marks omitted). Weincorporate the deferential standard of 28 U.S.C. § 2254(d) “into our consideration of a habeas petitioner’s request for COA.” Dockins v. Hines , 374 F.3d 935, 938 (10th Cir. 2004).-6-

The magistrate judge properly addressed Cooley’s Batson claim as “a question of fact subjected to the standard enunciat ed in 28 U.S.C. § 2254(d)(2).” Sallahdin v. Gibson, 275 F.3d 1211, 1225 (10th Cir. 2002). She therefo re presumed, in the absence of clear and convincing re buttal evidence, that the state court findings were correct. Id. Cooley argued that the prosecution’s reasons for challenging the juror were pretextual. However, ba sed on her review of the record, the magistrate judge concluded that Cooley had failed to present any evidence of purposeful discrimination and that the state court’s Batson findings were reasonable. Accordingly, the magistrate judge recommended dismissal of the Batson claim. Having examined Cooley’s application for a COA and the record on appeal, this court concludes that Cooley is not entitled to a COA. We deny issuance of a COA on the Batson claim for substantially the same reasons set out i n the magistrate judge’s report and recommendation.
Ineffective Assistance of Counsel Cooley next claims that his trial attorney was cons titutionally ineffective for a variety of reasons: failure to advise the tr ial court of Cooley’s prior association with one of the prosecutors, failure toinvestigate whether the gun case and a glove found at the crime scene belonged to Cooley, failure to object to inappropriate behavior of a co-defendant’s attorney , coercion in waiving Cooley’s-7-

right to testify at trial, and a cumulative inadequ acy. In order to prevail on an ineffective assistance claim, a petitioner must dem onstrate both that his attorney’s performance was deficient and that the deficiencies prejudiced his defense. Strickland , 466 U.S. at 687. A showing of prejudice requires a demonstration of “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In his habeas petition, Cooley contended that the s tate courts’ denial of his ineffectiveness claims was contrary to law and amounted to an unreasonable application of the Strickland standard. After reviewing the state courts’ ratio nale for rejecting Cooley’s argument, the magistrate jud ge concluded that the state courts applied the correct test and that they reach ed the reasonable determination that Cooley had not demonstrated any prejudice as aresult of counsel’s alleged errors. For substantially the reasons expressed inthe magistrate judge’s report and recommendation, we deny COA on Cooley’s ineffective assistance claim. Denial of evidentiary hearing Finally, Cooley asserts that the district court err ed in denying him an evidentiary hearing. Because Cooley’s claims were capable of resolution on the record, the district court did not abuse its discre tion in making this determination. See Torres v. Mullin , 317 F.3d 1145, 1161 (10th Cir.), cert. denied , 124 S. Ct.-8-

562 (2003). Cooley was not entitled to an evidenti ary hearing in the district court, and we deny COA on this issue.
CONCLUSION We AFFIRM the ruling of the district court denying Cooley’s Brady claim. As to the remaining claims, we DENY a certificate o f appealability and DISMISS this appeal.

Entered for the Court

Michael R. Murphy Circuit Judge