FILED

United States Court of Appeals

Tenth Circuit

April 19, 2017

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BERNARD JONES, 

Petitioner - Appellant,

v.

LOU ARCHULETA, Warden; THE

ATTORNEY GENERAL OF THE

STATE OF COLORADO,

Respondents - Appellees.

No. 16-1398

(D.C. No. 1:15-CV-01829-PAB)

(D. Colo.)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.

Petitioner Bernard Jones, a state prisoner represented by counsel, seeks a

certificate of appealability to appeal the district court’s denial of his § 2254

habeas application.

Petitioner is serving a lengthy state prison sentence for conspiracy to

possess cocaine as a habitual criminal. In his § 2254 petition, he raised five

claims for relief: (1) his federal constitutional rights were violated when the

*

 This order is not binding precedent except under the doctrines of law of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.
conspiracy count was amended several years after the statute of limitations had

run; (2) his conviction was barred by the Double Jeopardy Clause because he was

also fined under a controlled substance tax for possession of the drugs that were

involved in his criminal conviction for conspiracy; (3) Petitioner received

ineffective assistance of counsel when trial counsel inadvertently solicited

incriminating hearsay regarding a confidential informant; (4) counsel was

ineffective for failing to attack the validity of Petitioner’s earlier convictions that

formed the basis for his sentencing as a habitual offender; and (5) Petitioner

received ineffective assistance of counsel based on counsel’s failure to perform a

reasonable investigation in preparation for trial. The district court denied relief

as to all of these claims. Petitioner now seeks to appeal the district court’s ruling

as to his first four claims for relief. He does not raise any arguments regarding

the fifth claim raised in his habeas application, and we accordingly will not

address this claim in determining whether Petitioner is entitled to a certificate of

appealability.

After thoroughly reviewing the record and Petitioner’s arguments on

appeal, we conclude that reasonable jurists would not debate the district court’s

denial of habeas relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). First,

the district court correctly concluded that Petitioner’s first claim was procedurally

barred because Petitioner did not raise any federal constitutional claims relating

to the amendment of the indictment in the state court proceedings. See Anderson

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v. Harless, 459 U.S. 4, 6 (1982) (“[Section] 2254 requires a federal habeas

petitioner to provide the state courts with a ‘fair opportunity’ to apply controlling

legal principles to the facts bearing upon his constitutional claim. It is not

enough that all the facts necessary to support the federal claim were before the

state courts, or that a somewhat similar state-law claim was made.” (citations

omitted)). Second, as the district court explained more comprehensively below,

Petitioner has not shown the state court’s disposition of his double jeopardy

argument was contrary to clearly established federal law. See Mansfield v.

Champion, 992 F.2d 1098, 1100 (10th Cir. 1993) (“In a habeas corpus proceeding

under section 2254, a federal court should defer to a state court’s interpretation of

state law in determining whether an incident constitutes one or more than one

offense for double jeopardy purposes.”). Third, the state court conducted a

thorough postconviction review of Petitioner’s claim regarding trial counsel’s

solicitation of evidence regarding the confidential informant and concluded the

evidence did not prejudice Petitioner’s case, given the other evidence linking

Petitioner to drug sales. We are not persuaded the state court determination was

based on an unreasonable determination of the facts or an unreasonable

application of clearly established federal law, and Petitioner accordingly has not

demonstrated that he is entitled to habeas relief on this claim. See 28 U.S.C. §

2254(d). Finally, the state court held multiple postconviction hearings at which it

heard testimony from Petitioner, at least one attorney who represented Petitioner

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in an earlier criminal case, and at least two eyewitnesses to the events that gave

rise to Petitioner’s first criminal conviction. After hearing all of this testimony,

the state court found as a factual matter that even if trial counsel in this case had

challenged the validity of the earlier convictions, these convictions would have

been affirmed. Again, Petitioner has not shown the state court’s holding was

based on an unreasonable determination of the facts, nor has he otherwise

demonstrated an entitlement to federal habeas relief.

We therefore DENY Petitioner’s request for a certificate of appealability

and DISMISS the appeal.

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge

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