UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CHADDRICK THOMAS, 

 Petitioner - Appellant, 

v. 

BARRY GOODRICH, Warden; 

THE ATTORNEY GENERAL OF 

THE STATE OF COLORADO, 

 Respondents - Appellees. 

No. 18-1107 

(D.C. No. 1:16-CV-00435-PAB) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before BALDOCK, KELLY, and O’BRIEN, Circuit Judges. 

_________________________________ 

Chaddrick Thomas, a Colorado state prisoner proceeding pro se, wants to appeal 

from the denial of his 28 U.S.C. § 2254 habeas application. We deny his request for a 

certificate of appealability (COA) and dismiss this matter. 

I. BACKGROUND 

In 2002, three men were shot and killed during a drug transaction in a parking lot 

in Colorado Springs. A jury convicted Thomas of second-degree murder for his role in

shooting one of the victims and he was sentenced to forty years’ imprisonment. In his 

 

 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 13, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

direct appeal to the Colorado Court of Appeals (CCA), Thomas raised several claims of 

error, including: (1) the exclusion of testimony from a witness who would allegedly have 

supported his theory of self-defense; (2) the exclusion of testimony about the victim’s 

gang affiliation; and (3) the refusal to give the jury his tendered instructions on 

self-defense. The CCA ruled on the merits of these claims, denied them, and affirmed the 

conviction. The Colorado Supreme Court (CSC) denied certiorari review. 

Thomas next filed a motion for post-conviction relief in the trial court, which 

was denied. On appeal, the CCA affirmed the denial of all but one of Thomas’s 

post-conviction claims—ineffective assistance of counsel. The CCA remanded the 

ineffective assistance claim to the trial court for an evidentiary hearing. 

Following appointment of post-conviction counsel and an evidentiary hearing, the 

trial court denied the ineffective assistance claim. The CCA addressed the merits of the 

claim on appeal and affirmed the trial court’s second denial of the motion. The CSC 

denied certiorari review. 

Thomas then filed his § 2254 habeas application in federal district court, asserting 

three claims: (1) the trial court violated his Sixth Amendment rights by excluding 

testimony (a) from a witness who observed the victim’s gang associate near the scene of 

the crime with a gun that was possibly retrieved from the victim, which in turn could 

explain why no gun was found on or near the victim and (b) about the victim’s gang 

affiliation; (2) he received ineffective assistance of trial counsel in violation of the Sixth 

Amendment based on counsel’s (a) choice of a theory of self-defense that clashed with 

Thomas’s desire to testify and (b) decision to pursue a theory of defense known to be 
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based on false testimony; and (3) the trial court violated his Due Process rights by 

refusing to give the jury Thomas’s instructions on self-defense. 

The district judge concluded Thomas failed to exhaust Claim 2(b)—the alleged 

ineffective assistance based on trial counsel’s decision to pursue a theory of defense 

“known to be based on false testimony.” He also concluded the “unexhausted claim 

would be procedurally barred in state court [and] is subject to an anticipatory procedural 

bar. . . . [A]s a result [it] is a procedurally defaulted habeas claim.” R., Vol. 3 at 18-19. 

He denied the remaining claims on the merits and further denied Thomas’s request for a 

COA. 

II. STANDARD OF REVIEW 

Thomas must obtain a COA before he can appeal from the denial of his § 2254 

application. See 28 U.S.C. § 2253(c)(1)(A) (requiring a state prisoner appealing denial of 

a § 2254 application to obtain a COA). We will issue a COA “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To 

make that showing, a petitioner must demonstrate that reasonable jurists could debate 

“whether . . . the petition should have been resolved in a different manner or that the 

issues presented were adequate to deserve encouragement to proceed further.” Miller-El 

v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). 

Since the state court adjudicated the merits of Thomas’s claim, we may grant 

habeas relief only for one of two reasons: if the state court decision “was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as determined 

by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an 
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unreasonable determination of the facts in light of the evidence presented in the State 

court proceeding,” § 2254(d)(2). See also Davis v. McCollum, 798 F.3d 1317, 1319 

(10th Cir. 2015). We presume factual findings of a state court to be correct unless the 

applicant rebuts that presumption by “clear and convincing evidence.” § 2254(e)(1). See 

also Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011). 

The COA standard in § 2253(c)(2) applies a bit differently when the habeas claim 

fails on a procedural ground. In such an instance, a prisoner must satisfy a two-part 

standard: he must “show[], at least, that jurists of reason would find it debatable whether 

the application 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 v. McDaniel, 529 U.S. 473, 484 (2000). “Each component of [this] 

showing is part of a threshold inquiry, and a court may find that it can dispose of the 

application in a fair and prompt manner if it proceeds first to resolve the issue whose 

answer is more apparent from the record and arguments.” Id. at 485. Courts are 

encouraged to decide the procedural issue first, if it is the easiest issue, because “the 

Court will not pass upon a constitutional question although properly presented by the 

record, if there is also present some other ground upon which the case may be disposed 

of.” Id. (internal quotation marks omitted). 
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III. ANALYSIS 

A. The Procedurally Defaulted Ineffective Assistance Claim 

 An application for a writ of habeas corpus fails unless the applicant has exhausted 

state remedies or no adequate state remedies are available or effective to protect the 

applicant’s rights. See § 2254(b)(1). “A claim has been exhausted when it has been 

fairly presented to the state court.” Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 

2006) (internal quotation marks omitted). “Fair presentation means that the petitioner has 

raised the substance of the federal claim in state court.” Id. (internal quotation marks 

omitted). 

The district judge found Thomas failed to raise Claim 2(b) in his original motion 

for post-conviction relief, at the evidentiary hearing on remand, or in his appeal to the 

CCA. Accordingly, Thomas failed to fairly present the federal claim in state court. 

See Colo. R. Crim. P. 35(c)(3)(VII) (with certain exceptions not applicable here, “the 

[trial] court shall deny any claim that could have been presented in an appeal previously 

brought or postconviction proceeding previously brought”). Jurists of reason would not 

find the procedural decision debatable. 

Thomas asks his default be excused because (according to him) he has raised a 

substantial claim of ineffective assistance. See Martinez v. Ryan, 566 U.S. 1, 14 (2012) 

(“To overcome the default, a prisoner must also demonstrate that the underlying 

ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the 

prisoner must demonstrate that the claim has some merit.”). But the district court judge 

examined the state court record and concluded Thomas “failed to show that the 
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underlying ineffective assistance of counsel claim is substantial or has some merit.” R., 

Vol. 3 at 155. His decision is not reasonably debatable. 

B. Exclusion of Evidence 

1. Removal of the Victim’s Gun 

The CCA noted the testimony from two prosecution witnesses who said they 

“observed a black man with cornrows, who was later identified by name, shouting “no, 

no, no,’ from across the street as he witnessed the shooting.” Id. at 158 (internal 

quotation marks omitted). The first witness testified the man, who was unarmed, was 

running parallel to the crime scene. The second witness also confirmed the man was 

running parallel to the crime scene, but the trial court excluded her proposed testimony 

that the man had a gun. The CCA found “[n]either witness saw the man at the crime 

scene or going to or from it. Both witnesses observed a gray Volvo sedan, and the 

second witness testified that the man entered the gray Volvo after it had exited the 

parking lot in which the shootings occurred.” Id. (internal quotation marks omitted). 

As such, the CCA concluded the trial court properly excluded the proposed testimony as 

speculation: 

Here, [Thomas] offered no evidence that the man was nearer to the crime 

scene than across the street. Both witnesses testified that the man never 

approached the victim. Hence, it would be merely speculation to argue that 

he somehow had obtained the victim’s gun before entering the gray Volvo. 

Therefore, the trial court did not abuse its discretion in excluding evidence 

of the man’s gun. 

Id. at 158-59 (internal quotation marks omitted). 
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 Thomas argues the trial court violated his right under the Sixth Amendment’s 

Confrontation Clause by excluding the proposed testimony of the second witness who 

would have said the man had a gun. No doubt, the Constitution guarantees criminal 

defendants a meaningful opportunity to present a complete defense. Nonetheless, 

[w]hile the Constitution thus prohibits the exclusion of defense evidence 

under rules that serve no legitimate purpose or that are disproportionate to 

the ends that they are asserted to promote, well-established rules of 

evidence permit trial judges to exclude evidence if its probative value is 

outweighed by certain other factors such as unfair prejudice, confusion of 

the issues, or potential to mislead the jury. 

Holmes v. South Carolina, 547 U.S. 319, 326 (2006). 

 Given the wide latitude afforded trial judges by Holmes, the district judge 

concluded the CCA’s decision on this claim was neither contrary to nor an unreasonable 

application of federal law. Nor was it based on an unreasonable determination of the 

facts based on the evidence presented in the state-court trial. Reasonable jurists would 

entertain no debate about the propriety of his decision. 

2. Gang Affiliation

According to Thomas, the trial court violated his Sixth Amendment rights by 

excluding evidence that the victim and the black man with the cornrows were both 

members of the same gang. Thomas “offered the evidence to explain why the occupants 

of the gray Volvo would retrieve the victim’s gun, to explain why defendant might have 

feared for his life, and to explain why the recanting witness recanted.” R., Vol. 3 at 160 

(internal quotation marks omitted). The CCA acknowledged the offered testimony, and 

for various reasons concluded, “the trial court abused its discretion in excluding evidence 
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of the victim’s and third parties’ gang affiliations.” Id. at 161 (internal quotation marks 

omitted). 

However, it found no constitutional violation, explaining “a constitutional 

violation occurs [only] if the erroneously excluded evidence was ‘material,’” and 

concluding “the gang affiliation evidence was not material.” Id. (internal quotation 

marks omitted). The CCA correctly framed the relevant question as “whether the 

proffered testimony, if believed, would have created a reasonable doubt that did not exist 

without the evidence.” Id. at 161 (internal quotation marks omitted). After discussing 

the record evidence at length, it concluded the gang affiliation evidence was not material: 

“[I]n light of the entire record, we cannot say with fair assurance that the trial court’s 

error substantially influenced the verdict or deprived [Thomas] of a fair trial. Thus, the 

error is not reversible.” Id. at 162 (internal quotation marks omitted). See Richmond v. 

Embry, 122 F.3d 866, 872 (10th Cir. 1997). 

The district judge could not say the CCA’s decision on this claim was contrary to 

nor an unreasonable application of federal law. Nor was it based on an unreasonable 

determination of the facts based on the evidence presented in the state-court trial. He was 

correct; no jurist would find the result reasonably debatable. 

C. Ineffective Assistance of Trial Counsel 

Thomas’s only properly exhausted claim of ineffective assistance is his contention 

trial counsel advanced a theory of self-defense against his wishes, impermissibly chilling 

his right to testify in his own defense. Thomas claims he wanted to pursue a claim of 
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innocence—when the shooting started he left with his son to assure his son’s safety and 

did not shoot anyone—not self defense. 

 As the CCA acknowledged, “a defendant who shows that a conflict of interest 

actually affected the adequacy of his representation need not demonstrate prejudice in 

order to obtain relief.” R., Vol. 3 at 165 (internal quotation marks omitted). But it 

concluded Thomas failed to “establish[] the constitutional predicate for his claim of 

ineffective assistance” because he had not “show[n] that his counsel actively represented 

conflicting interests.” Id. at 167 (internal quotation marks omitted). 

 The district court judge considered the CCA’s decision on this claim not to be 

contrary to nor an unreasonable application of federal law. His conclusion is not 

reasonably debatable. 

D. Self-Defense Related Jury Instructions 

 For his final claim Thomas asserted a due process violation because the trial court 

refused to give three of his tendered jury instructions relating to self-defense. These 

instructions were addressed by the CCA on direct appeal, and it concluded there was no 

error because the first instruction related to the lesser included offense of reckless 

manslaughter, an offense to which self-defense does not apply under Colorado law, and 

the second and third instructions were unnecessary because the court’s instructions 

accurately reflected self-defense under Colorado law. 

 On habeas review, “it is not the province of a federal habeas court to reexamine 

state-court determinations on state-law questions. In conducting habeas review, a federal 

court is limited to deciding whether a conviction violated the Constitution, laws, or 
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treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As such, 

“[c]laims of erroneous jury instructions can justify setting aside a state conviction on 

habeas review only if the errors had the effect of rendering the trial so fundamentally 

unfair as to cause a denial of a fair trial in the constitutional sense, or [they are] otherwise 

constitutionally objectionable.” Dockins v. Hines, 374 F.3d 935, 938-39 (10th Cir. 2004) 

(internal quotation marks omitted). 

 The district judge recognized “[i]n the context of jury instructions, fundamental 

fairness requires that a criminal defendant be provided a meaningful opportunity to 

present a complete defense, and incorrect jury instructions may divest a defendant of this 

opportunity.” R., Vol. 3 at 172. Appropriately, he also recognized “federal habeas relief 

is available only when the ailing instruction by itself so infected the entire trial that the 

resulting conviction violates due process.” Id. (internal quotation marks omitted). The 

instructions accurately advised the jury concerning Colorado law of self-defense and the 

decision to deny Thomas’s tendered instruction did not otherwise render the trial so 

unfair as to cause a due process violation. As with the other claims, reasonable jurists 

could not debate the propriety of the district judge’s conclusion. 

IV. CONCLUSION 

Since reasonable jurists could not debate the correctness of the denial of § 2254 

habeas relief, we deny the request for a COA and dismiss this matter. 

Because we have reached the merits of the COA request, prepayment of fees is no 

longer an issue. Nevertheless a fee issue remains. The relevant statute, 28 U.S.C. 

§ 1915, forgives only prepayment of fees, not the ultimate liability for those fees. 
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Thomas is obligated to pay all filing and docketing fees; payments shall be directed to the 

Clerk of the District Court for the District of Colorado. 

Entered for the Court 

Terrence L. O’Brien 

Circuit Judge