FILED

United States Court of Appeals

Tenth Circuit

November 13, 2019

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY GAY,

Petitioner - Appellant,

v.

SHAWN FOSTER, Warden;

CYNTHIA H. COFFMAN, Attorney

General of the State of Colorado,

Respondents - Appellees.

No. 18-1423

(D.C. No. 1:16-CV-02415-LTB)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

*

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.

A Colorado jury convicted Terry Gay of first-degree murder. After

unsuccessful state-court proceedings, Mr. Gay petitioned the federal district court

for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied that

petition. It also denied Mr. Gay a certificate of appealability (“COA”). Mr. Gay,

proceeding pro se, now asks this court for a COA and for leave to proceed in

* This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and

Tenth Circuit Rule 32.1.
forma pauperis.

1 Exercising jurisdiction under 28 U.S.C. § 1291, we deny both

requests for the reasons that follow.

I

In 2005, Mr. Gay attended a party in Jefferson County, Colorado, at which

a partygoer was shot and killed. Mr. Gay was charged with the murder. In

advance of trial, the state moved to introduce evidence that Mr. Gay had shot

someone else in Denver a week before the party, and the court admitted that

evidence. The trial court also admitted testimony by a detective that witnesses

often fail to testify at trial to the same facts that they had given in statements to

the police. From this and other evidence, the jury returned a guilty verdict.

After an unsuccessful direct appeal and state postconviction motion, Mr.

Gay petitioned for a writ of habeas corpus in federal court. That petition raised

nine claims. See R., Vol. I, at 16–35 (Habeas Pet., filed Sept. 26, 2016). The

district court denied relief on all nine claims. In one order, the court dismissed

claims four through eight “as procedurally defaulted in state court and barred from

federal habeas review.” Id., Vol. II, at 22 (Order for Answer in Part, Dismissal in

1 Because Mr. Gay appeared pro se before the district court and does

the same on appeal, we liberally construe all his filings. See Erickson v. Pardus,

551 U.S. 89, 94 (2007) (per curiam). Even so, Mr. Gay “must comply with the

same rules of procedure as other litigants.” Requena v. Roberts, 893 F.3d 1195,

1205 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019). Similarly, it is not

“our role . . . to act as his advocate.” Gallagher v. Shelton, 587 F.3d 1063, 1067

(10th Cir. 2009).

2
Part, and State Ct. R., filed Oct. 27, 2017). In the same order, the court

“dismiss[ed] Claim Nine as not cognizable in a federal habeas action.” Id. at 8.

But because Mr. Gay had properly exhausted claims one through three, the district

court ordered more briefing on those claims. After that briefing, the court issued a

second order dismissing claims one through three on the merits. See id., Vol. III,

at 53 (Order on Appl. for Writ of Habeas Corpus, filed Sept. 18, 2018). The next

day the district court entered final judgment, denying Mr. Gay’s habeas petition

and dismissing the action with prejudice. See id. at 5–6 (Final J., filed Sept. 19,

2018). The court also denied Mr. Gay a COA and certified that “any appeal from

this Order is not taken in good faith.” Id. at 5.

Mr. Gay now seeks a COA from this court to appeal from the district court’s

final judgment dismissing his habeas petition. He proposes four questions for our

review. See Aplt.’s Opening Br. at 3(a)–(u).

2 He also moves for leave to proceed

in forma pauperis.

II

A COA is a jurisdictional prerequisite to our adjudication of the merits of a

§ 2254 appeal. See 28 U.S.C. § 2253(c)(1)(A); Davis v. Roberts, 425 F.3d 830,

833 (10th Cir. 2005). And we may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

2 We adhere to the unconventional pagination that Mr. Gay uses in his

opening brief on appeal.

3
§ 2253(c)(2). To obtain a COA when “a district court has rejected the

constitutional claim on the merits,” an applicant must show “that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong,” “or that the issues presented were ‘adequate to deserve encouragement to

proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). But “[w]hen the district court denies

a habeas petition on procedural grounds,” the applicant has an extra hurdle to

clear. Id. That applicant must prove 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.” Id. (emphasis added).

Whether to issue a COA is a “threshold question” that we decide “without

‘full consideration of the factual or legal bases adduced in support of the claims.’”

Buck v. Davis, 580 U.S. ----, 137 S. Ct. 759, 773 (2017) (quoting Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003)). To cross that threshold, an applicant need

not show “that the appeal will succeed.” Welch v. United States, 578 U.S. ----,

136 S. Ct. 1257, 1263 (2016) (quoting Miller-El, 537 U.S. at 337). Indeed, “[a]

claim can be debatable even though every jurist of reason might agree . . . that

petitioner will not prevail.” Buck, 137 S. Ct. at 774 (quoting Miller-El, 537 U.S.

at 338). That said, we must incorporate the Antiterrorism and Effective Death

4
Penalty Act’s (“AEDPA”) deference to state court decisions “into our

consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004); accord Postelle v. Carpenter, 901 F.3d 1202, 1223

(10th Cir. 2018); see 28 U.S.C. § 2254(d)(1), (d)(2) (providing that a habeas

application “shall not be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of the claim . . . (1)

resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law,” or “(2) resulted in a decision that was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding”).

III

Mr. Gay seeks a COA to challenge four of the district court’s rulings. As

explained below, no jurist of reason could debate the correctness of those rulings.

We therefore deny Mr. Gay’s requested COA.

A

Mr. Gay first presents the following question: Did the district court err by

dismissing claims four through eight of his habeas petition without liberally

construing that petition “and without sua sponte considering the U.S. Supreme

Court’s findings in Martinez v. Ryan, 132 S. Ct. 1309 (2012)[?]” Aplt.’s Opening

Br. at 3(a).

5
The district court dismissed those claims “as procedurally defaulted in state

court.” R., Vol. II, at 22. It did so because Colorado law directs state courts, with

limited exceptions, to “deny any [postconviction] claim that could have been

presented” on direct appeal. COLO. R. CRIM. P. 35(c)(3)(VII). And the Colorado

Court of Appeals had denied claims four through eight under that rule because it

determined that Mr. Gay could have, but did not, present those claims on direct

appeal. Concluding that Colorado Rule of Criminal Procedure 35(c)(3)(VII) was

an independent and adequate state procedural ground and finding that Mr. Gay

made no showing of cause or prejudice, the district court deemed claims four

through eight “procedurally defaulted . . . and barred from federal habeas review.”

R., Vol. II, at 22.

Mr. Gay takes issue with this procedural ruling. He argues that the court

erred by illiberally reading his habeas petition and not considering Martinez.

According to Mr. Gay, under Martinez, claims four through eight “could have been

addressed under the guise of ineffective assistance of direct appeal counsel.”

Aplt.’s Opening Br. at 3(a). And he faults the district court for not “read[ing] [the

Martinez argument] into his pleadings.” Id. at 3(c). Thus, he asks this court to

remand claims four through eight to the district court “for review on the merits.”

3

3 Mr. Gay alternatively asks to return to state court “for further

review” and to argue there that his failure to raise claims four through eight on

direct appeal was excused by appellate counsel’s ineffectiveness. Aplt.’s

Opening Br. at 3(c). No jurist of reason could disagree with the district court’s

6
Id.

We must decline Mr. Gay’s request. Mr. Gay concedes that he did not raise

claims four through eight on direct appeal. In order to avoid dismissal under

Colorado Rule of Criminal Procedure 35(c)(3)(VII), he had to convince the state

postconviction court that his failure to raise those claims fell within one of the

enumerated exceptions to the rule. See COLO. R. CRIM. P. 35(c)(3)(VII); accord

People v. Taylor, 446 P.3d 918, 921 (Colo. App. 2018). But Mr. Gay failed to do

so.

4 He is left, then, without any viable means to cast doubt on the district court’s

ruling that he procedurally defaulted claims four through eight and that he failed to

overcome that default.

Furthermore, Martinez offers no reason to doubt the district court’s ruling.

That case held that under certain circumstances “‘a procedural default will not bar

a federal habeas court from hearing a substantial claim of ineffective assistance at

trial if’ the default results from the ineffective assistance of the prisoner’s counsel

conclusion that returning to state court is not an option for Mr. Gay. Because he

could have raised that ineffective-assistance-of-appellate-counsel claim in his

first postconviction proceeding, he “is subject to an anticipatory procedural bar”

stopping him from now advancing this claim in state court. R., Vol. II, at 21; see

COLO. R. CRIM. P. 35(c)(3)(VII); Thacker v. Workman, 678 F.3d 820, 840–41

(10th Cir. 2012).

4 Mr. Gay “discuss[es] the ‘adequacy’ of [Colorado] Crim. P. Rule

35(c)(3)(VII).” Aplt.’s Opening Br. at 3(c). But that discussion is mooted by our

decision in Hobdy v. Raemisch, 916 F.3d 863 (10th Cir. 2019), which ruled that

Colorado Rule of Criminal Procedure 35(c)(3)(VII) is both “independent of

federal law and adequate to sustain a procedural default,” id. at 883.

7
in the collateral proceeding.” Davila v. Davis, 569 U.S. ----, 137 S. Ct. 2058,

2065 (2017) (quoting Martinez, 566 U.S. at 17). But claims four through eight are

not ineffective-assistance-of-trial-counsel claims; they are claims pertaining to

substantive trial errors. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)

(explaining that ineffective-assistance claim and underlying substantive claim

“have separate identities”). As a result, Martinez is inapplicable.

In sum, no jurist of reason could debate the correctness of the district

court’s dismissal of claims four through eight as procedurally defaulted. And Mr.

Gay’s effort to inject doubt fails. His first proposed issue for review thus offers

no basis to grant a COA.

B

Mr. Gay’s second proposed question fares no better. It asks the following:

Did the district court “abuse its discretion” by relying on 28 U.S.C. § 2254(e)(2) to

deny “Mr. Gay the opportunity to develop” claim three (his ineffective-assistanceof-trial-counsel claim) through an evidentiary hearing “because he was unable to

do so at the state level?” Aplt.’s Opening Br. at 3(e).

We need not reach the merits of this second question, however, because Mr.

Gay did not preserve this issue before the district court. At no point did Mr. Gay

argue either that he had developed the factual basis for claim three in state court or

that he met § 2254(e)(2)’s stringent requirements for an evidentiary hearing that

8
apply when a petitioner failed to develop the factual basis of a claim in state court.

That silence effects a waiver of this contention. See, e.g., Parker v. Scott, 394

F.3d 1302, 1327 (10th Cir. 2005); Jones v. Gibson, 206 F.3d 946, 958 (10th Cir.

2000). Given this state of affairs, no jurist of reason could debate the district

court’s resolution of claim three without an evidentiary hearing. We therefore

cannot grant Mr. Gay a COA on his second proposed question.

C

Mr. Gay’s third question meets a similar fate. This question asks whether

the district court erred in denying claim one on the merits. Claim one, in turn,

alleges that the state trial judge violated Mr. Gay’s constitutional rights by (a)

admitting evidence of the earlier Denver shooting, and (b) refusing to recuse

himself after admitting this evidence.

5 The district court denied each subpart of

this claim (subparts (a) and (b), respectively) on the merits. No jurist of reason

could disagree with that resolution.

1

Before Mr. Gay’s trial, the prosecution moved to introduce evidence about

5 Claim one also alleges that the state trial court erred in admitting

evidence that Mr. Gay often said in the course of disputes, “[d]o I need to go out

and get my gun?” Mr. Gay has abandoned his challenge to the district court’s

resolution of this portion of claim one. See Aplt.’s Opening Br. at 3(r) n.2 (“Mr.

Gay will not argue the statement of needing to get a gun issue.”); see also United

States v. Yelloweagle, 643 F.3d 1275, 1276–77 (10th Cir. 2011) (concluding that

party abandoned argument on appeal by not mentioning it in his opening brief).

Thus, we do not consider this waived issue.

9
the prior Denver shooting. It “offered the evidence to rebut Gay’s denial that he

owned or possessed any firearms . . . ; to show Gay’s intent in the [charged

murder]; and to show that Gay acted with deliberation and premeditation.” R.,

Vol. I, at 228 (Op. Affirming J. of Conviction, filed Nov. 22, 2016). The trial

court noted that the Denver-shooting evidence could also be admitted to show Mr.

Gay’s identity as the shooter in the charged murder. The court then admitted that

evidence.

Mr. Gay argues that in doing so the state trial court violated his federal dueprocess right to a fair trial. That evidence, he says, was improperly admitted to

show his propensity to shoot people. And allowing such prejudicial evidence to go

to the jury, Mr. Gay says, rendered his trial unfair.

The district court disagreed. It first noted that the Colorado Court of

Appeals had held that the state trial court did not err under state law or under the

federal Constitution

6

by admitting the Denver-shooting evidence. The district

court also pointed out that habeas relief for a state-law evidentiary error lies only

when the evidentiary ruling was “so unduly prejudicial that it renders the trial

6 The Colorado Court of Appeals expressly rested its holding regarding

subpart (a) on only state (not federal) law. But the district court presumed that

the state court had implicitly addressed and rejected Mr. Gay’s federal

constitutional arguments regarding admission of the Denver-shooting evidence.

See R., Vol. II, at 15 (relying on the presumption explicated in Harrington v.

Richter, 562 U.S. 86 (2011)). Mr. Gay does not challenge this reasoning before

us and, therefore, we have no need to consider the matter further.

10
fundamentally unfair.” R., Vol. III, at 39 (quoting Lott v. Trammell, 705 F.3d

1167, 1190 (10th Cir. 2013)). But the district court found that Mr. Gay could not

show such prejudice. For that reason, it ruled that the state court’s decision

regarding subpart (a) of his claim was “not contrary to or an unreasonable

application of clearly established . . . federal law or an unreasonable determination

of the facts.” Id. at 36.

No jurist of reason could debate the district court’s assessment of that

constitutional claim. Any prejudice from the Denver-shooting evidence was

blunted by the trial court’s instruction to the jury that it could not consider that

evidence to infer that Mr. Gay has a propensity to shoot people. Given this

limiting instruction and our presumption that jurors follow their instructions, see

Weeks v. Angelone, 528 U.S. 225, 234 (2000), no reasonable jurist could question

the district court’s conclusion that this portion of Mr. Gay’s claim one fails under

AEDPA’s deferential standards. Thus, subpart (a) offers no basis on which to

grant Mr. Gay a COA.

2

Nor does subpart (b). After the trial judge admitted the Denver-shooting

evidence, Mr. Gay moved the judge to recuse himself. That motion alleged that by

noting that the Denver-shooting evidence could also be admitted to show

identity—an argument the prosecution had not advanced—the trial judge evinced a

11
bias against Mr. Gay, requiring his recusal. And, in refusing to recuse himself, the

trial judge violated Mr. Gay’s constitutional right to a fair trial before an unbiased

judge, Mr. Gay argued.

The district court rejected that argument, specifically stating the following:

“[a]n accusation of bias grounded in prior judicial rulings against a party almost

never demonstrates partiality requiring a judge’s recusal.” R., Vol. III, at 35

(citing Liteky v. United States, 510 U.S. 540, 555 (1994)). The Colorado Court of

Appeals had found that Mr. Gay’s claims related “only to rulings by the trial

judge” and not any “personal bias and prejudice.” Id. at 36 (discussing state

court’s findings). That court had also held that the trial judge violated neither

state nor federal law

7

in declining to recuse himself. Mr. Gay offered the district

court no evidence to cast doubt on the state court’s ruling. Thus, the district court

concluded that Mr. Gay was not entitled to relief on this habeas claim.

No jurist of reason could disagree. Even in his brief on appeal, Mr. Gay

fails to allege that the state trial judge had a personal bias against him. Simply

put, he offers no reason to question the Colorado Court of Appeals’s denial of his

recusal claim or the district court’s deference to that ruling. Rather, Mr. Gay

7 As with its treatment of subpart (a), the state court only expressly

addressed Mr. Gay’s state-law arguments as to subpart (b). But the district court

again presumed that the state court had implicitly rejected Mr. Gay’s federal

constitutional arguments on the merits. See R., Vol. II, at 15–17 (applying the

presumption from Harrington). Mr. Gay does not challenge this reasoning and,

therefore, we again have no need to consider the matter further.

12
simply asserts that the trial judge “had an interest in seeing that he was convicted.”

Aplt.’s Opening Br. at 3(r). That conclusory assertion is not enough to spark a

debate among jurists of reason regarding the correctness of the district court’s

ruling. We cannot grant Mr. Gay a COA on subpart (b) of claim one.

D

Mr. Gay’s final proposed question is the following: Did the district court err

in denying claim two of his habeas petition? That claim alleged that the trial court

deprived Mr. Gay of his right to a fair trial by admitting testimony from a

detective stating that witnesses often do not testify to the same facts that they have

told the police. Admitting that testimony, Mr. Gay argues, allowed the detective

to testify to the truthfulness of another witness whose trial testimony varied from

the account he gave to the police. And this evidentiary error, Mr. Gay reasons,

deprived him of a fair trial.

The district court disagreed. It reiterated that a state-law evidentiary error

merits habeas relief only when the error renders the trial fundamentally unfair.

See Lott, 705 F.3d at 1190. The court also highlighted the Colorado Court of

Appeals’s conclusion that the detective “neither opined on the truth of a particular

witness’s testimony nor his or her character for truthfulness, and the trial court

properly admitted the statement.” R., Vol. III, at 45 (quoting the state court’s

opinion). Having failed to proffer an argument and supporting facts as to how the

13
state court’s ruling was “contrary to or an unreasonable application of clearly

established federal law,” Mr. Gay was “not entitled to relief” on claim two, the

district court concluded. Id. at 47.

No jurist of reason could debate that conclusion. As the district court

explained, Mr. Gay’s counsel neutralized any prejudice from the detective’s

testimony by cross-examining the detective and the witness whose testimony the

detective supposedly bolstered. What is more, in his briefing on appeal, Mr. Gay

again fails to offer any on-point federal law that the state court’s holding violated.

See Aplt.’s Opening Br. at 3(u) (claiming without support that the state court’s

ruling violated four inapposite Supreme Court cases dealing with judicial bias or

military detention). That failure prevents Mr. Gay from discharging his burden of

showing that jurists of reason could debate the district court’s resolution of the

constitutional claim. We cannot grant Mr. Gay a COA on his fourth proposed

question.

IV

For the foregoing reasons, we DENY Mr. Gay’s application for a COA and

dismiss this matter. And because Mr. Gay has not shown that he has a “reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal,” Watkins v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh

v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)), we DENY his

14
motion for leave to proceed in forma pauperis on appeal.

ENTERED FOR THE COURT

Jerome A. Holmes

Circuit Judge

15