* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 14 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KENNETH R. COBBIN,

Petitioner-Appellant,

v. ARISTEDES W. ZAVARES, MARK E. MCKINNA, Superintendent and THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees. No. 99-1042 (D.C. No. 97-B-2258) (D. Colo.) (32 F. Supp.2d 1225)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination-2-

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Kenneth R. Cobbin filed a petition for a writ of ha beas corpus pursuant to 28 U.S.C. § 2254 seeking to overturn his conviction for aggravated robbery on the basis that his trial counsel provided constitutionally ineffective assistance, see Strickland v. Washington , 466 U.S. 668, 687 (1984). Adopting the recommendation of the magistrate judge, which thoro ughly discussed the factual and procedural history of Cobbin’s claim, the distr ict court denied the petition.
See Cobbin v. Zavares , 32 F. Supp.2d 1225 (D. Colo. 1999). Cobbin timel y filed a notice of appeal, and the matter is now before us on Cobbin’s application for a certificate of appealability. To be entitled to a certificate of appealability, C obbin must make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c); Ross v. Ward , 165 F.3d 793, 797 (10th Cir.), cert. denied, 1999 WL 496228 (U.S. Oct. 4, 1999) (No. 99-5138). Cobbin contends that he is entitl ed to a certificate on the basis that his trial counsel w as ineffective for failing to prevent the introduction of evidence of his past cr iminality, which he contends allowed the jury to convict him based on previous a cts rather than on evidence he committed the crime charged. Specifically, he cont ends that his counsel should have objected to the admission of “mug shots” taken of him in 1987 and 1985 and-3-

to testimony that he was a suspect with regard to adifferent robbery. The district court held that because the 1987 mug shots were adm issible and Cobbin’s counsel had properly objected to and had stricken the testi mony regarding the other robbery, his performance in these respects was not deficient. See Cobbin , 32 F. Supp.2d at 1233-34. The district court also held t hat even assuming that counsel’s failure to object to the introduction of the 1985 mug shots was deficient performance, Cobbin had not shown the requisite pre judice to entitle him to relief. See id. at 1234. We generally agree with the district court’s thorou gh analysis of Cobbin’s arguments and conclude that additional comment is w arranted only regarding counsel’s failure to the object to the admission of the 1985 mug shots. As typical mug shots, these photos showed both a front and pro file view of Cobbin. Counsel recognized the negative inferences that could be drawn from these photos, see People v. Bugarin , 507 P.2d 875, 877 (Colo. 1973), and he sought suc cessfully to have the police identification numbers deleted from them, see People v. Pickett , 571 P.2d 1078, 1083 (Colo. 1977), and to prohibit w itnesses generally from referring to the photos as mug shots. Nonetheless, we agree with the district court that the trial court probably would have sust ained an objection to their admission because of their limited, if any, probative value. See Bugarin , 507 P.2d at 877; People v. Bozeman , 624 P.2d 916, 920 (Colo. Ct. App. 1980).-4-

However, the critical issue at trial was the robbery victim’s identification of Cobbin as the robber, and the victim had failed to identify Cobbin from a book of photos that included the 1985 mug shots. The 19 85 mug shots of Cobbin did not differ significantly from the photos taken in 1 987, and defense counsel used the similarity in the two sets of photos to supportCobbin’s defense that the victim’s subsequent identification of Cobbin as the robber from the photo array containing the 1987 photos was due to suggestion by the police or subconscious recollection of the 1985 photos. As a result, admi ssion of the 1985 mug shots bolstered Cobbin’s defense, and this must be consid ered in assessing the prejudice resulting from the inference of prior criminal hist ory that could be drawn from the photos. See United States v. Logan , 861 F.2d 859, 865 (5th Cir. 1988) (holding that both positive and negative effects of counsel error must be considered in determining prejudice). Thus, exclusion of the mug shots would have eliminated the inference of prior criminal history, but, at th e same time, weakened Cobbin’s defense. Considering both the positive and negativ e effects of admission of the mug shots in light of the other evidence at trial, including the victim’s steadfast identification of Cobbin as the robber, we agree wi th the district court that Cobbin has not demonstrated that counsel’s performa nce, assuming it was deficient, was sufficiently prejudicial; i.e., our confidence in the outcome of the trial has not been undermined. See Strickland , 466 U.S. at 694.-5-

Thus, for substantially the reasons stated by the d istrict court in rejecting Cobbin’s claim, we conclude that Cobbin has not mad e a substantial showing of the denial a constitutional right. His application for a certificate of appealability is DENIED, all outstanding motions are DENIED, and the appeal is DISMISSED.

Entered for the Court

Robert H. Henry Circuit Judge