FILED

United States Court of Appeals

Tenth Circuit

February 28, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSÉ CORONADO,

Petitioner - Appellant, No. 07-5138

v. (N.D. Oklahoma)

RON WARD, Director; ATTORNEY

GENERAL OF THE STATE OF

OKLAHOMA,

Respondents - Appellees.

 (04-CV-817-HDC-FHM)

ORDER

Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.

José Coronado, a state prisoner proceeding pro se, has filed an application

for a certificate of appealability (COA), seeking to appeal the district court’s

dismissal of his petition for writ of habeas corpus under 28 U.S.C. § 2254. 

Because Mr. Coronado has failed to make “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his application for a COA

and dismiss this matter. 

I. BACKGROUND

Mr. Coronado and his wife, Veronica, were arrested on August 27, 2001,

after a traffic stop by Oklahoma Highway Patrol Trooper Eades led to the
1

 Mr. Coronado initially cited prosecutorial misconduct as a fourth basis for

relief, but he withdrew the claim after conceding in his reply brief that it lacked

merit. 

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discovery of two duct taped bricks of cocaine in a belt around Ms. Coronado’s

waist. A jury in Tulsa County District Court convicted Mr. Coronado of

Trafficking in Illegal Drugs in violation of OKLA. STAT. tit. 63, § 2-415(C), and

the court sentenced him to twenty years’ imprisonment. Mr. Coronado appealed

his conviction and sentence to the Oklahoma Court of Criminal Appeals (OCCA). 

The OCCA issued an unpublished opinion in which it denied each of Mr.

Coronado’s claims and affirmed the judgment and sentence of the trial court. 

Mr. Coronado next filed an application for post-conviction relief in state

district court. As grounds for relief, he cited ineffective assistance of trial

counsel and ineffective assistance of appellate counsel. The state district court

denied relief. Mr. Coronado then appealed the ruling to the OCCA, which

affirmed the district court’s denial of post-conviction relief. 

Mr. Coronado next filed a petition for writ of habeas corpus in federal

district court under 28 U.S.C. § 2254. In his petition, Mr. Coronado cited three

grounds for relief:1

 (1) ineffective assistance of trial counsel; (2) ineffective

assistance of appellate counsel; and (3) insufficiency of evidence to support his

conviction. The district court dismissed Mr. Coronado’s ineffective assistance of

trial counsel claim, finding that it was procedurally barred because it was not
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properly raised before the OCCA on direct appeal. The court denied Mr.

Coronado’s remaining grounds for relief after determining that the OCCA had not

unreasonably applied clearly established federal law or made an unreasonable

determination of the facts when it denied relief on those grounds. See 28 U.S.C.

2254(d); Williams v. Taylor, 529 U.S. 362, 402-03 (2000). 

Mr. Coronado then filed an application for a COA in the district court,

which the court denied. Mr. Coronado filed an application for COA with this

court, seeking to appeal the same issues he raised before the district court. He

also contends that the district court erred in denying his motion for an evidentiary

hearing and for appointment of counsel. 

II. DISCUSSION

A COA is a jurisdictional prerequisite to this court’s review of Mr.

Coronado’s petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S.

322, 336 (2003). We will issue a COA only if Mr. Coronado makes “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make this showing, Mr. Coronado must demonstrate that the issues he has

raised are debatable among jurists, that a court could resolve the issues

differently, or that the questions deserve further proceedings. Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). We now turn to the issues for which Mr. Coronado

seeks a COA. 

1. Ineffective Assistance of Trial Counsel
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First, Mr. Coronado maintains that his state court trial counsel was

ineffective. The district court found this claim to be procedurally barred because

the OCCA dismissed the issue on independent and adequate grounds of state law. 

See Coleman v. Thompson, 501 U.S. 722, 724 (1991). Specifically, the OCCA

dismissed Mr. Coronado’s post-conviction ineffective assistance of trial counsel

claim on the grounds that Mr. Coronado could have raised the issue on direct

appeal but did not. Because the district court dismissed this claim on procedural

grounds, Mr. Coronado must show 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.” Slack, 529 U.S. at 484. 

This court has recognized that Oklahoma’s procedural bar on ineffective

assistance of counsel claims such as Mr. Coronado’s is a valid bar to a federal

court’s consideration of an ineffectiveness of counsel claim when “trial and

appellate counsel differ; and the ineffectiveness claim can be resolved upon the

trial record alone” or after adequately developing a factual record through some

other procedural mechanism. English v. Cody, 146 F.3d 1257, 1263-64 (10th Cir.

1998). We agree with the district court’s resolution of the issue, and, more

importantly, we conclude that other jurists of reason would not find the issue to

be debatable. Mr. Coronado was represented by different counsel at trial and on

appeal. And we agree with the district court that Mr. Coronado’s claim could
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have been resolved on the record alone. But even if the trial record was not

sufficient, Mr. Coronado has failed to assert that Oklahoma’s remand procedure,

as provided by Rule 3.11 of the Rules of the Oklahoma Court of Criminal

Appeals, would not have permitted him to supplement the record adequately for

his ineffectiveness claim on direct appeal. 

Moreover, Mr. Coronado’s claim is not eligible for our consideration

because he cannot show “cause and prejudice” to excuse his default in Oklahoma

courts. See Coleman, 501 U.S. at 749-50. Namely, Mr. Coronado’s briefs before

this court point to no evidence suggesting that “some objective factor external to

the defense impeded . . . [his] efforts to comply with the state procedural rules.” 

Murray v. Carrier, 477 U.S. 478, 488 (1986). Nor can Mr. Coronado demonstrate

that a fundamental miscarriage of justice would result if his claim was not

considered. This standard requires that Mr. Coronado demonstrate that he is

“actually innocent” of the crime of which he was convicted. McCleskey v. Zant,

499 U.S. 467, 494 (1991). Mr. Coronado has undertaken no effort to make such a

showing. 

2. Ineffective Assistance of Appellate Counsel

Second, Mr. Coronado argues that his counsel on direct appeal was

ineffective in failing to argue that his trial counsel was ineffective. In order to

receive a COA for this issue, Mr. Coronado must show that reasonable jurists

would debate whether the OCCA unreasonably applied Strickland v. Washington,
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466 U.S. 668, 687 (1984), in determining that Mr. Coronado did not receive

ineffective assistance of counsel. See United States v. Cook, 45 F.3d 388, 392

(10th Cir. 1995). In order to show that he was entitled to a favorable ruling under

Strickland, Mr. Coronado must demonstrate that his appellate counsel’s

performance was deficient and also that he was prejudiced as a result of the

deficient performance. Strickland, 466 U.S. at 687. In order to make this

showing, he must first show that his trial counsel was ineffective. 

We agree with the district court that Mr. Coronado’s allegations of

ineffective assistance at a suppression hearing and at trial are without merit, and

we conclude that he is not entitled to a COA for this claim. Mr. Coronado

contends that his trial counsel provided constitutionally deficient representation

by inadequately preparing for a suppression hearing at which counsel challenged

the legality of the traffic stop that led to his arrest. Like the district court, we

conclude that Mr. Coronado cannot prevail because, even assuming his counsel’s

performance was deficient, we find nothing in Mr. Coronado’s briefs or the record

to suggest that, but for counsel’s performance, the result of the suppression

hearing would have been different. 

 Mr. Coronado’s counsel obtained pre-trial discovery, exercised five

peremptory challenges during jury selection, and cross-examined the state’s

witnesses. Mr. Coronado’s claim regarding ineffectiveness at trial appears to be

based primarily on his belief that his counsel should have requested discovery
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regarding inducements used by the state to motivate his wife to change her

statement regarding ownership of the drugs found on her person. However, as the

district court’s order points out, Ms. Coronado did not testify at trial. The

prosecution instead established Mr. Coronado’s ownership of the drugs by

admitting into evidence a conversation between Mr. Coronado and his wife that

police surreptitiously recorded while the two sat in Trooper Eades’s patrol car

prior to their arrest. 

In short, Mr. Coronado has failed to demonstrate that reasonable jurists

would debate whether the OCCA unreasonably applied federal law in concluding

that he failed to rebut the “the strong presumption that counsel’s conduct [fell]

within the wide range of reasonable professional assistance.” Strickland, 466

U.S. at 694. Because Mr. Coronado has demonstrated neither inadequate

performance of counsel nor prejudice, he cannot demonstrate that his appellate

counsel was constitutionally deficient in failing to raise an ineffective assistance

of counsel claim. 

3. Sufficiency of Evidence

 Third, Mr. Coronado claims that he is entitled to relief because the

prosecution did not present sufficient evidence at trial to support his conviction

for Trafficking in Illegal Drugs. The key inquiry under federal law is “whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond
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a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). 

Under Oklahoma law, the prosecution had to prove to the jury beyond

reasonable doubt that Mr. Coronado (1) knowingly, (2) possessed, (3) 28 grams or

more of cocaine. OKLA. STAT. tit. 63, § 2-415(C) (2000). Here, the state

produced ample evidence to meet its burden. The jury heard testimony from

Trooper Eades, who found bricks of cocaine on Ms. Coronado’s person. As

suggested above, the jury also heard, via recorded translation from Spanish to

English, an incriminating conversation between Mr. and Ms. Coronado that was

recorded while the two sat in the back of a patrol car. This conversation alone

could have allowed a reasonable jury to find the elements of the offense beyond a

reasonable doubt. We therefore deny a COA for this claim. 

4. Evidentiary Hearing and Appointment of Counsel 

The district court denied Mr. Coronado’s habeas petition without

conducting an evidentiary hearing, notwithstanding Mr. Coronado’s motion for a

hearing with the assistance of appointed counsel. Mr. Coronado asserts in his

application for COA that the court erred in denying his petition without an

evidentiary hearing. We conclude that the district court did not abuse its

discretion in denying Mr. Coronado’s motion for a hearing and therefore affirm

its ruling. See Anderson v. Att’y Gen. of Kansas, 425 F.3d 853, 858 (10th Cir.

2005) (“A district court’s decision to grant or deny an evidentiary hearing in a

habeas proceeding is reviewed for an abuse of discretion.”). 
2

Mr. Coronado argues that he should not be bound by the standards of

Section 2254(e)(2) because he diligently sought before the Oklahoma courts to

develop a factual basis for his claims through an evidentiary hearing. If we were

to credit Mr. Coronado's arguments, we would assess his contention of error

under pre-ADEPA standards. Under that rubric, a petitioner is entitled to an

evidentiary hearing so long as his allegations, if true and not contradicted by the

existing record, would entitle him to habeas relief. See Bryan, 335 F.3d at 1214. 

As suggested by our analysis of Mr. Coronado's three other claims, we would

reach the same conclusion and uphold the district court's denial of an evidentiary

(continued...)

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“[The Anti-Terrorism and Effective Death Penalty Act (AEDPA)] strictly

limits a federal court’s ability . . . to grant evidentiary hearings.” Hammon v.

Ward, 466 F.3d 919, 925 (10th Cir. 2006). Section 2254 provides:

If the applicant has failed to develop the factual basis of a claim in

State court proceedings, the court shall not hold an evidentiary hearing

on the claim unless the applicant shows that– 

(A) the claim relies on–

(i) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously

unavailable; or

(ii) a factual predicate that could not have been previously

discovered through the exercise of due diligence; and 

(B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense. 

28 U.S.C. § 2254(e)(2)(A)&(B); see also Bryan v. Mullin, 335 F.3d 1207, 1214

(10th Cir. 2003) (en banc). The district court did not abuse its discretion in

determining that Mr. Coronado did not meet this burden.2

 Mr. Coronado has not
2

(...continued)

hearing even under pre-ADEPA standards. 

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presented this court with evidence that factual predicates for any of his claims

could not have been discovered through due diligence. Moreover, Mr. Coronado

has not demonstrated that, but for constitutional error, no reasonable factfinder

would have found him guilty.

Finally, the district court did not err in failing to appoint counsel for Mr.

Coronado. There is no constitutional right to counsel beyond the direct appeal of

a criminal conviction, and Mr. Coronado, who was not entitled to an evidentiary

hearing, has not demonstrated that he was entitled to counsel. See Swazo v.

Wyoming Dep’t of Corr., 23 F.3d 332, 333-34 (10th Cir. 1994) (recognizing the

right to counsel in a habeas proceeding when the district court determines that an

evidentiary hearing is required). 

III. CONCLUSION

For the reasons provided above, we DENY Mr. Coronado’s application for

COA and DISMISS the matter. 

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk