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 a pplication. 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 transacti on in a parking lot in Colorado Springs. A jury convicted Thomas of sec ond-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 prec edent except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, 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 Court2 direct appeal to the Colorado C ourt of Appeals (CCA), Thomas ra ised several claims of error, including: (1) the exclu sion of testimony from a witnes s who would allegedly have supported his theory of self-def ense; (2) the exclusion of test imony about the victim’s gang affiliation; and (3) the refusa l to give the jury his tend ered instructions on self-defense. The CCA ruled on th e merits of these claims, den ied 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 evidenti ary hearing. Following appointment of post-co nviction counsel and an evident iary hearing, the trial court denied the ineffec tive assistance claim. The CCA a ddressed 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 ha beas application in federal dist rict court, asserting three claims: (1) the trial cour t violated his Sixth Amendment rights by excluding testimony (a) from a witness who obs erved the victim’s gang ass ociate near the scene of the crime with a gun that was po ssibly retrieved from the victi m, which in turn could explain why no gun was found on or near the victim and (b) abou t the victim’s gang affiliation; (2) he received ineffe ctive assistance of trial co unsel in violation of the Sixth Amendment based on counsel’s ( a) choice of a theory of self-def ense that clashed with Thomas’s desire to testify and (b) decision to pursue a theory of defense known to be3 based on false testimony; and (3 ) the trial court violated his Due Process rights by refusing to give the ju ry Thomas’s instruc tions on self-defense

. The district judge concluded Th omas failed to exhaust Claim 2(b )—the alleged ineffective assistance based on trial counsel’s decision to pur sue a theory of defense “known to be based on false te stimony.” 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 pr ocedurally defaulted habe as 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 o f his § 2254 application. See 28 U.S.C. § 2253(c)(1)(A) (requiri ng a state prisoner appealin g denial of a § 2254 application to obtain a COA). We will issue a COA “on ly if the applicant has made a substantial showing of t he denial of a constitutional ri ght.” Id . § 2253(c)(2). To make that showing, a petitioner m ust demonstrate that reasonabl e jurists could debate “whether . . . the petition should h ave been resolved in a diff erent manner or that the issues presented were adequate t o deserve encouragement to proc eed further.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (inter nal 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 unreasonab le application of, cle arly established Fe deral law, as determined by the Supreme Court of the Un ited States,” § 2254(d)(1), or “w as based on an4 unreasonable determination of the facts in light of the evidenc e presented in the State court proceeding,” § 2254(d)(2). See also Davis v. McCollum , 798 F.3d 1317, 1319 (10th Cir. 2015). We presume fact ual findings of a state court to be correct unless the applicant rebuts that presumption by “clear and convincing evid ence.” § 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 s uch an instance, a prisoner must satisfy a two-part standard: he must “show[], at least, that jurists of reason wo uld find it debatable whether the application states a valid claim of the denial of a constit utional right and that jurists of reason would find it debatable wh ether the district court was c orrect in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Ea ch component of [this] showing is part of a threshold inquiry, and a court may find th at 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 th e record and arguments.” Id . at 485. Courts are encouraged to decide the proce dural issue first, if it is the e asiest issue, because “the Court will not pass upon a cons titutional question although pro perly presented by the record, if there is also present some other ground upon which t he case may be disposed of.” Id . (internal quotation marks omitted).5 III. ANALYSIS A. The Procedurally Defaulted In effective Assistance Claim An application for a writ of h abeas corpus fails unless the ap plicant has exhausted state remedies or no adequate state remedies are available or e ffective 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 m eans that the petitioner has raised the substance of the fede ral claim in state court.” Id . (internal quotation marks omitted). The district judge found Thomas f ailed to raise Claim 2(b) in h is original motion for post-conviction relief, at th e evidentiary hearing on reman d, or in his appeal to the CCA. Accordingly, Thom as failed to fairly present the federal claim in state court.
See Colo. R. Crim. P. 35(c)(3)(VII) (with certain exceptions not ap plicable here, “the [trial] court shall deny any clai m that could have been present ed in an appeal previously brought or postconviction procee ding previously brought”). Jur ists of reason would not find the procedural d ecision debatable. Thomas asks his default be exc used because (according to him) h e has raised a substantial claim of ineffective assistance. See Martinez v. Ryan , 566 U.S. 1, 14 (2012) (“To overcome the default, a pri soner must also demonstrate tha t the underlying ineffective-assistance-of-trial-c ounsel claim is a substantial one, which is to say that the prisoner must demonstrate that t he claim has some merit.”). Bu t the district court judge examined the state court record a nd concluded Thomas “failed to show that the6 underlying ineffective assistance of counsel claim is substanti al 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 tw o prosecution witnesses who said they “observed a black man with cornr ows, who was later identified b y name, shouting “no, no, no,’ from across the street a s he witnessed the shooting.” Id . at 158 (internal quotation marks omitted). The fi rst witness testified the man, who was unarmed, was running parallel to the crime s cene. The second witness also c onfirmed the man was running parallel to the crime s cene, but the trial court exclud ed her proposed testimony that the man had a gun. The CCA found “[n]either witness saw t he man at the crime scene or going to or from it. Bot h witnesses observed a gray V olvo sedan, and the second witness testified that the man entered the gray Volvo af ter 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 th e proposed testimony as speculation: Here, [Thomas] offered no evidenc e that the man was nearer to t he crime scene than across the street. Bot h witnesses testified that th e man never approached the victim. Hence, it would be merely speculation t o argue that he somehow had obtained the vic tim’s gun before entering the gr ay Volvo. Therefore, the trial court did no t abuse its discretion in excl uding evidence of the man’s gun.
Id . at 158-59 (internal quotation marks omitted).7 Thomas argues the trial court violated his right under the Six th Amendment’s Confrontation Clause by exclud ing the proposed testimony of the second witness who would have said the man had a gun. No do ubt, the Constitution guarantees criminal defendants a meaningful opportun ity to present a complete defen se. Nonetheless, [w]hile the Constitution thus pr ohibits the exclusion of defens e evidence under rules that serve no legitim ate purpose or that are dispro portionate to the ends that they are asserted t o promote, well-established ru les of evidence permit trial judges to exclude evidence if its probati ve value is outweighed by certain other fact ors such as unfair prejudice, c onfusion 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. No r was it based on an unreasonabl e determination of the facts based on the evidence pres ented 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 cou rt violated his Sixth Amendme nt rights by excluding evidence that the vic tim and the black man with the c ornrows were both members of the same gang. Thoma s “offered the evidence to expl ain why the occupants of the gray Volvo would retrieve the victim’s gun, to explain w hy defendant might have feared for his life, and to expla in why the recanting witness r ecanted.” R., Vol. 3 at 160 (internal quotation marks omitte d). The CCA acknowledged the o ffered testimony, and for various reasons concluded, “th e trial court abused its disc retion in excluding evidence8 of the victim’s and third pa rties’ gang affiliations.” Id . at 161 (internal quotation marks omitted). However, it found no constitutiona l violation, explaining “a co nstitutional violation occurs [only] if the e rroneously excluded evidence wa s ‘material,’” and concluding “the gang affiliation evidence was not material.” Id . (internal quotation marks omitted). The CCA correc tly framed the relevant question as “whether the proffered testimony, if believed , would have created a reasonab le doubt that did not exist without the evidence.” Id . at 161 (internal quotation ma rks omitted). After discussing the record evidence at length, it concluded the gang affiliatio n evidence was not material: “[I]n light of the entire record, we cannot say with fair assur ance that the trial court’s error substantially influenced th e verdict or dep rived [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 cla im was contrary to nor an unreasonable application of federal law. Nor was it bas ed on an unreasonable determination of the facts based on the evidence presented in t he 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 assistanc e is his contention trial counsel advanced a theory of self-defense against his wis hes, impermissibly chilling his right to testify in his own defense. Thomas claims he want ed to pursue a claim of9 innocence—when the shooting star ted he left with his son to ass ure his son’s safety and did not shoot anyone—not self defense. As the CCA acknowledged, “a defendant who shows that a conflic t of interest actually affected the adequacy o f his representation need not d emonstrate prejudice in order to obtain relief.” R., Vol . 3 at 165 (internal quotation marks omitted). But it concluded Thomas failed to “establish[] the constitutional pred icate for his claim of ineffective assistan ce” because he had not “ show[n] that his co unsel actively represented conflicting interests.” Id . at 167 (internal quotation marks omitted). The district court judge consid ered the CCA’s decision on this claim not to be contrary to nor an un reasonable application of federal law. Hi s conclusion is not reasonably debatable. D. Self-Defense Related Jury Instructions For his final claim Thomas asse rted a due process violation be cause the trial court refused to give three of his t endered jury instructions relatin g to self-defense. These instructions were addressed by the CCA on direct appeal, and it concluded there was no error because the first instructi on related to the lesser inclu ded offense of reckless manslaughter, an offense to which self-defense does not apply u nder Colorado law, and the second and third instructions were unnecessary because the court’s instructions accurately reflected self-def ense 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 conducti ng habeas review, a federal court is limited to deciding whe ther a conviction violated the Constitution, laws, or10 treaties of the United States.” Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). As such, “[c]laims of erroneous jury ins tructions can justify setting as ide a state conviction on habeas review only if the errors had the effect of rendering th e trial so fundamentally unfair as to cause a denial of a fair trial in the constitution al 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 instru ctions, fundamental fairness requires that a criminal defendant be provided a meani ngful 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 recog nized “federal habeas relief is available only when the aili ng instruction by itself so infe cted the entire trial that the resulting conviction violates due process.” Id . (internal quotation marks omitted). The instructions accurately advised the jury concern ing Colorado la w of self-defense and the decision to deny Thomas’s tendere d instruction did not otherwis e render the trial so unfair as to cause a due process violation. As with the other claims, reasonable jurists could not debate the propriety o f the district judge’s conclusi on. IV. CONCLUSION Since reasonable jurists could not debate the correctness of th e denial of § 2254 habeas relief, we deny the request for a COA and dismiss this m atter. Because we have reached the merits of the COA request, prepayme nt of fees is no longer an issue. Nevertheless a fee issue remains. The releva nt statute, 28 U.S.C. § 1915, forgives only prepayme nt of fees, not the ultimate liab ility for those fees.11 Thomas is obligated to pay all filing and docketing fees; payme nts shall be directed to the Clerk of the District Court fo r the District of Colorado.

Entered for the Court

Terrence L. O’Brien Circuit Judge