UNITED STATES CO URT OF APPEALS

TENTH CIRCUIT

ALEX HOMER LINZY Petitioner - Appellant,

v. WARDEN FRANCIS FAULK; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents- Appellees. No. 14-1504 (D.C. No. 1:14-CV-00962-RM) (D. Colo.)

ORDER DENYING MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF FEES DENYING CERTIFICATE OF APPEALABILITY, AND DISMISSING APPEAL

Before MATHESON , O'BRIEN , and PHILLIPS , Circuit Judges.

Alex Homer Linzy is a Colorado state prisoner. Proceeding pro se, 1 he wants to appeal from the denial of his 28 U.S.C. § 2254 habeas petition. The district judge denied a certificate of appealability (COA). He has re newed his request with this Court, which we too deny.

1 We liberally construe Linzy’s pro se filings. See Ledbetter v. City of Topeka, Kan. , 318 F.3d 1183, 1187 (10th Cir. 2003). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - Linzy pulled his former girlfriend from he r car and dragged her down the street into a vacant house where he beat and rape d her. He was convicted by a jury of second degree kidnapping, sexual assa ult, and third degree assau lt. He was adjudicated a habitual criminal and sentenced to 96 year s imprisonment on the kidnapping conviction, a consecutive 48 years to life imprisonment on the sexual assault conviction, and a concurrent 2 years imprisonment on the a ssault conviction. His convictions and sentences were affirmed on direct appeal and his state court petitions for post-conviction relief (two) were unsuccessful. He then sought relief in federal court, filing a pro se § 2254 habeas petition raising twelve claims. The district judge re solved all twelve claims but we are concerned only with those raised in his COA application, all ineffectiv e assistance of counsel claims. With respect to trial counsel, he claimed counsel should ha ve challenged the chain of custody of the rape kit performed on the victim, objected to the testimony of the State’s DNA expert for

lack of foundation under People v. Valencia , 257 P.3d 1203 (Colo. Ct. App. 2011), and raised a sufficiency of the evidence argument regarding th e asportation element of the kidnapping conviction. As for appellate c ounsel, he said counsel rendered deficient performance by failing to raise the suffici ency of the evidence argument on appeal. 2 The district judge concluded Linzy’s ineffe ctive assistance of trial counsel claims were procedurally defaulted because they were either (1) determined by the state courts to be procedurally barred as untimely or successive (independent and adequate state

2 In the district court, these cl aims were Claims 3(f), 7 and 9.- 3 - grounds) or (2) not fairly presented to the state courts and would now be procedurally barred under Colorado law (an ticipatory procedural bar). Linzy argued his procedural default should be excused because the state court denied his request for appointed post-conviction relief counsel. See Martinez v. Ryan , --- U.S. ---, 132 S. Ct. 1309, 1320 (2012) (“Wher e, under state law, claims of ineffective

assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habe as court from hearing a substantial claim of

ineffective assistance at trial if, in the initial-review colla teral proceeding, there was no

counsel or counsel in that proceeding was ineffective.”). 3 The judge determined the lack

of counsel did not excuse the default because his claims were not “s ubstantial,” i.e., they

lacked “some merit.” Id. at 1318. Although the rape kit was or iginally mislabeled (and co nsequently misplaced), the error was rectified before DNA analysis of the kit’s vaginal swabs occurred. Moreover, there was no evidence, other than speculation, of any tampering. The district judge also

3 While the Colorado courts have “expre ssed a preference” for defendants to raise ineffective assistance of trial counsel claims in collateral review proceedings, they do not require defendants to do so. People v. Thomas , 867 P.2d 880, 886 (Colo. 1994); see also People v. Price , 240 P.3d 557, 565 (Colo. Ct. App. 2010) (“Because of the need for a developed factual record, an ineffective assist ance of counsel claim should ordinarily be raised in a postconviction proceed ing, not on direct appeal. Only in rare instances are ineffective assistance of counsel claims presen ted so that they need no further factual development prior to review on direct a ppeal.”) (citation and qu otations omitted). Nevertheless, the rule in Martinez has been extended to circ umstances where the “state procedural framework, by reason of its desi gn and operation, makes it highly unlikely in a typical case that a defendant will have a me aningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal.” Trevino v. Thaler , --- U.S. ---, 133 S. Ct. 1911, 1921 (2013). We assume Martinez applies.- 4 - concluded the State had presented suffici ent foundation for the admission of the DNA expert’s testimony. According to that test imony, a forensic scientist from the Denver Police Department Crime Lab tested the va ginal swabs collected from the victim and found semen. The DNA expert then extracted DNA from the semen, compar ed it to the DNA sample taken from Linzy, and conclude d they matched. Apparently the DNA expert tested the semen sample extracted from the swabs by the forensic scientist, but did not test the vaginal swabs themselves. In other circumstances such a possible break in the chain of custody might be significant, but here there was sufficient evidence connecting the vaginal swabs to the victim. Indeed, defense counsel had so stipulated. 4 Finally, the judge noted that trial counsel had raised a su fficiency of the evidence

4 Compare Valencia , 257 P.3d at 1206 (concluding tr ial court abused its discretion by allowing an expert to testify as to resu lts of her testing on specimens taken from the defendant and victim where there was no evidence, other than the expert’s own conclusory statements, estab lishing the specimens came from the defendant and victim). Evidentiary rulings by state courts generally do not present a vi able federal habeas issue. See Moore v. Marr , 254 F.3d 1235, 1246 (10th Cir. 2001 ) (“As a general matter, federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence, and federal courts may not interfere with state evidentia ry rulings unless the rulings in question rendered th e trial so fundamentally unfair as to constitute a denial of federal constitutional rights.”) (c itation and quotations omitted); see also Estelle v. McGuire , 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”) (quotations omitted). Those considerations aside, Linzy raises Valencia to support his ineffective assistance of trial counsel claim, a cons titutional claim cognizable under § 2254. See Strickland v. Washington , 466 U.S. 668, 685-86 (1984). Bu t, even if legally relevant, Valencia does not help him. As the district ju dge concluded, that case is not factually comparable because of trial couns el’s stipulation in this case. To the extent Linzy objected to counsel’s decision to stipulate, the judge decided Linzy had not shown prejudice under Strickland because he had no t provided any evidence the semen sample tested was not obtained from the victim.- 5 - argument by moving for a directed verdict at the close of the State’s evidence. Alternatively, he found the victim’s testim ony, which was corroborated by the police and an examining physician, to have been suffi cient to support the asportation element of kidnapping. As to the ineffective assistance of appe llate counsel claim, the Colorado Court of Appeals determined the eviden ce to be sufficient to su pport the kidnapping conviction

and therefore counsel was not ineffectiv e for failing to challenge it on appeal. 5 Upon review of the state court record the district judge agreed, based on Jackson v. Virginia , 443 U.S. 307, 319 (19 79) (stating evidence is sufficient to support a conviction if, “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 a reasonable doubt”). Appellate counsel’s failure to raise a suffici ency of the evidence argument on appeal did not constitute deficient performance or prejudice. Linzy must obtain a COA to pursue an appeal. Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003). A COA will issue “onl y if the applicant has made a substantial

5 In rejecting the ineffectiv e assistance of appellate c ounsel claim, the Colorado Court of Appeals said: Linzy has failed to show meritorious grounds for reversal. Suffi cient evidence in the record, including the victim’s testim ony and evidence of the severe scraping and bruising which experts said resulte d from the victim being dragged to the house where Linzy locked her, supp orts the jury’s verdict . . . . Thus, we conclude Li nzy has not shown how he was prejudiced by appellate counsel’s conduct . . . . (R. at 524 (citation omitted).)- 6 - showing of the denial of a constitutional right. ” 28 U.S.C. § 2253(c)(2). To make such a showing, he must demonstrate “that reasonabl e jurists could debate whether (or, for that matter, agree that) the petition s hould have been reso lved in a different manner or that the issues presented were adequate to dese rve encouragement to proceed further.” Slack v.

McDaniel , 529 U.S. 473, 484 (20 00) (quotations omitted). Because his petition was denied in part on procedural grounds, he fa ces a double hurdle—he must establish “that jurists of reason would find it debatable whet her the petition states a valid claim of the denial of a constitutional right and that jurists of reason woul d find it debatable whether

the district court was correct in its procedural ruling.” Id. (emphasis added). “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner sh ould be allowed to proceed further.” Id. In cogent orders the distri ct judge thoroughly and corre ctly addressed and resolved Linzy’s ineffective assistance of trial counsel claims. They are procedurally defaulted and Linzy failed to show those claims are “substantial” under Martinez . Like the Colorado Court of Appeals, the district judge concluded appella te counsel was not ineffective. Federal inquiry is limited to wh ether the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” in this case, Strickland v. Washington , 466 U.S. 668 (1984), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §- 7 - 2254(d); see also Upchurch v. Bruce , 333 F.3d 1158, 1164 (1 0th Cir. 2003). The Colorado Court of Appeals’ decision is neither; Linzy is not entitled to relief. 6

We DENY A COA and DISMISS this matter. 7 Since we have addressed the request for a COA, Linzy’s compan ion request to proceed on appeal in forma pauperis or ifp (that is without prepayment of fees) is mo ot. Linzy must pay the full amount of all

6 The district judge should not have explicitly decided th e ineffective assistance of appellate counsel claim de novo (i.e., no deficient performance or prejudice). Determination of that claim should have re sted on whether the Colorado Court of Appeals’ resolution of that claim was contrary to or an unreasonable application of Strickland , a substantially more deferential standard. See Harrington v. Richter , 562 U.S. 86, 105 (2011) (“Estab lishing that a state c ourt’s application of Strickland was unreasonable under § 2254(d) is . . . di fficult. The stan dards created by Strickland and § 2254(d) are both highly deferential and when the two apply in tandem, review is doubly so.”) (citations and quotations omitted). Linzy can hardly be heard to complain that he received a more substantial re view than he deserved.

7 Linzy also requests a COA to challenge the denials of his (1) motion for an evidentiary hearing, (2) motion for a copy of th e state court record w ithout cost under 28 U.S.C. § 2250, and (3) motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases. But “a COA is only appropriate in circumstances implicating constitutional error.” United States v. Eatman , 569 F. App’x 626, 631-32 (10th Cir. 2014) (unpublished). The denials of these motions are not of constitutional magnitude. Moreover, to the extent any of these motions sought to place new evidence before the federal court that was not part of the state court record, they were properly denied under Cullen v. Pinholster , --- U.S. ---, 131 S. Ct. 1388, 1398 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”).- 8 - filing and docketing fees to the Clerk of the District Court. Payment is immediately due. 8

Entered by the Court:

Terrence L. O’Brien United States Circuit Judge

8 28 U.S.C. § 1915(a)(1) does not relie ve a party from paying the filing and docketing fees. As it plainly states, the stat ute only excuses “prepayment” of the fees. See 28 U.S.C. § 1915(a)(1); see also Flint v. Haynes , 651 F.2d 970, 9 72 (4th Cir. 1981) (“The use of the word ‘prepa yment’ in [§ 1915(a)(1)] i ndicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed w ithout having to advance the fe es and costs associated with litigation.”). Irrespective of how his ifp request is treated Linzy must pay the full amount of the filing and docketing fees.