UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TONEY L. BROWN, Petitioner - Appellant,

v. DAVID ZUPAN; CYNTHIA H. COFFMAN, Attorney General of the State of Colorado, Respondents - Appellees. No. 17-1206 (D.C. No. 1:14- CV-02218-WJM) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MATHESON , BACHARACH , and PHILLIPS , Circuit Judges.

________________ _________________ Toney L. Brown, a Colorado st ate prisoner proceeding pro se, 1 seeks a certificate of appealability (C OA) to appeal the district court’s denial of his application for relief under 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we de ny a COA and dismiss this matter. Mr. Brown was convicted of aggravat ed robbery, first degree criminal trespass, two counts of third degree assaul t, false imprisonment, and two habitual criminal counts. People v. Brown , (Colo. App. No. 03CA0316, May 24, 2007)

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Brown is proceeding pro se, we construe his fi lings liberally. See Van Deelen v. Johnson , 497 F.3d 1151, 1153 n. 1 (10th Cir. 2007). FILED United States Court of Appeals Tenth Circuit 

### February 15, 2018 Elisabeth A. Shumaker Clerk of Court2 (unpublished). After seeking postconviction relief in stat e court, Mr. Brown filed his § 2254 application asserting eight claims for relief: his Sixth and Fourteenth Amendment rights were violat ed because his trial counsel was ineffective (Claim One); his Sixth Amendment rights were vi olated because his first public defender was ineffective (Claim Tw o); his Sixth and Fourteen th Amendment rights were violated because his trial counsel had a conf lict of interest (Claim Three); his Fourth Amendment rights were violated because th e police improperly attempted to detain him and seized evidence from his vehicle (C laim Four); his Fifth Amendment rights were violated because a police officer im properly identified him (Claim Five); his Sixth and Fourteenth Amendment rights were violated because the prosecution failed to preserve relevant 911 recordings (C laim Six); his Sixth and Fourteenth Amendment rights were violated because his appellate counsel was permitted to withdraw and his retained counsel provided ineffective assistance by failing to raise issues related to his trial counsel’s ineffe ctiveness (Claim Seven); and his Sixth and Fourteenth Amendment rights were violat ed because certain exculpatory evidence was not presented at hi s trial (Claim Eight). The district court dismissed all but the se cond and third claims as procedurally defaulted because Mr. Brown failed to exhaus t them in state court, where they would now be barred. On Claim Two, the cour t determined that the performance of Mr. Brown’s first public defe nder was not deficient under Strickland v. Washington , 466 U.S. 668, 688 (1984). On Claim Thr ee, the court concluded that the Colorado Court of Appeals (CCA) did not unreasonabl y apply clearly established federal law3 when it determined Mr. Brown’s trial counsel did not have a conflic t of interest. In addition, the court declined to excuse Mr. Brown’s procedural de fault of Claim Eight based on arguments of his actual inno cence. The court denied a COA. Mr. Brown must obtain a COA to appeal the district court’s denial of § 2254 relief. See 28 U.S.C. § 2253(c)(1)(A), (c)(3) . A COA may issue “only if the applicant has made a substan tial showing of the denial of a constitutional right.” § 2253(c)(2). When a district court reje cts a claim on the mer its, “[t]he petitioner must demonstrate that reasonable jurists woul d find the district c ourt’s assessment of the constitutional claim[] debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). When a court dismisses a § 225 4 application on procedural grounds, a petitioner is entitled to a COA only if he shows both that reasonable jurists would find it debatable whether he had stated a valid constitutional claim and whether the court’s procedural ruling was correct. Id. at 484-85. In reviewing a § 2254 application, “[w]e presume th at the factual findings of the state court are correct” unless the petitioner presents clear and convincing evidence to the contrary. Fairchild v. Workman , 579 F.3d 1134, 1137 (10th Cir. 2009). Claim One The district court determined that although Mr. Brown challenged his trial counsel’s effectiveness in tw o postconviction motions, he di d not pursue this claim in his appeals of those postconvi ction challenges, and theref ore the claim, which had several subparts, was procedurally defaulte d. Generally, a prisoner is barred from obtaining federal habeas review of a claim that he failed to exhaust in state court.4 See Coleman v. Thompson , 501 U.S. 722, 750 ( 1991). However, in Martinez v. Ryan , 566 U.S. 1, 9 (2012), the Supreme Court recognized a narrow exception to the Coleman rule: “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedur al default of a claim of ineffective assistance at trial.” For the Martinez exception to apply, Mr. Brown must show that his first postconviction counsel was ineffective under the standards of Strickland , and he “must also demonstrate that the underlying ineffective-assistanceof-trial-counsel claim is a s ubstantial one, which is to say that [he] must demonstrate that the claim ha s some merit.” Martinez , 566 U.S. at 14. Mr. Brown has not shown that his underlyi ng claim against his trial counsel is substantial. 2 “[A]ctual ineffectiven ess claims alleging a de ficiency in attorney performance are subject to a general requirement that th e defendant affirmatively prove prejudice.” Strickland , 466 U.S. at 693. To show prejudice, Mr. Brown “must show that there is a reasonable probability that, but for couns el’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. He argues that his trial counsel failed to seek suppr ession of certain physical and identification evidence, present expert testimony on issues not directly relate d to his guilt, and present other testimony that w ould controvert minor detail s from his case, but he has not shown a reasonable probab ility that the outcome of hi s trial would have been different had these stra tegies been pursued. See id. at 693 (“It is not enough for the

2 We may deny COA on a ground that is su pported by the reco rd even if it was not relied on by the district court. See Davis v. Roberts , 425 F.3d 830, 834 (10th Cir. 2005).5 defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”). Because Mr. Brown has not demonstrated cause for his procedural default, reasonable jurists coul d not debate the district cour t’s dismissal of this claim. To the extent Mr. Brown argues that hi s postconviction appella te counsel were ineffective for failing to rais e issues related to his trial counsel’s effectiveness, their alleged ineffectiveness cannot be cause for a procedural de fault because “[t]here is no constitutional right to an attorney in state post-conviction proceedings.” Coleman , 501 U.S. at 752. The limited exception to Coleman recognized in Martinez , 566 U.S. at 14, and Trevino v. Thaler , 569 U.S. 413 (2013), do es not apply here. See Middlebrooks v. Carpenter , 843 F.3d 1127, 1136 (6th Cir. 2016) (“[T]he Martinez-Trevino exception does not apply to save pr ocedural defaults that occur in appeals from initial-review collateral proceedings.” (internal quotation marks omitted)). As a result, reas onable jurists could not debate the reasonableness of the district court’s procedur al ruling on this claim. Claim Two Mr. Brown’s first public defender repres ented him for about three weeks from shortly after his arrest until the state c ourt granted the public defender’s motion to withdraw at a preliminary hearing. Mr. Brown argues that the public defender was ineffective because he did not take appropria te steps to preserve 911 recordings that were relevant to Mr . Brown’s defense. Because the CCA did not decide this claim on the merits and it was not otherwise procedurally barred, the di strict court reviewed it de novo. See Gipson v.6 Jordan , 376 F.3d 1193, 1196 (10th Cir. 2004). “For federal ha beas claims not adjudicated on the merits in state-court proceedings, we exerci se our independent judgment and review the federal district court’s conclusions of law de novo.” Hooks v. Workman , 689 F.3d 1148, 1163-64 (10th Cir. 2012) (internal quotation marks omitted). Of course, at th e COA stage, we review the district court’s dispositive ruling solely for debatabili ty, as explained above. See Buck v. Davis , 137 S. Ct. 759, 773 (2017) (“The COA inquiry . . . is not coextensive with a me rits analysis.”). “To demonstrate ineffective assistance of counsel a petitioner must establish both (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that there is a re asonable probability that, but for counsel’s unreasonable errors, the outcome of his a ppeal would have been different.” Ellis v. Hargett , 302 F.3d 1182, 1186 (10t h Cir. 2002) (citing Strickland , 466 U.S. at 688, 694). In applying the first prong of Strickland , “‘[e]very effort must be made to evaluate the conduct from counsel’s perspectiv e at the time,” and “counsel is strongly presumed to have rendered ad equate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Hooks , 689 F.3d at 1186-87 (internal quotation marks omitted). With respect to the second prong, a petitioner must demonstrate “more th an some conceivable effe ct on the outcome of the proceeding.” Id. at 1187 (“Reasonable probab ility is more than mere speculation . . . .”). The district court concluded that it was not unreasonable for the public defender not to have preserved the 911 r ecordings before his representation of7 Mr. Brown ended and that Mr. Brown’s subse quent inability to obta in the recordings could not be imputed to the public defender. Therefore, the court determined that Mr. Brown did not present evidence that would overcome the presumption of reasonableness with respect to the public defender’s performance. The court also concluded that Mr. Brown ha d not satisfied his burden of showing that he was prejudiced by the absence of the recordings at trial because his assertion as to the value of the recordings was speculative. The court’s conc lusion that Mr. Brown is unable to prevail on either prong of the Strickland test is not debatable. Claim Three The CCA reversed the judgment of convi ction from Mr. Brown’ s first trial and remanded the case for a new trial. See People v. Brown , (Colo. App. No. 95CA0177, Mar. 6, 1997) (unpublished). At his s econd trial, Mr. Brow n was represented by counsel who had previously supervised his first public defender and another public defender who represented one of the prosecu tion’s witnesses. Mr. Brown argues that these connections created a conflict of interest. But the CCA determined that Mr. Brown’s trial counsel le ft the public defender’s offi ce more than four years before he represented Mr. Brown and al so before the offi ce represented the prosecution witness. Mr. Brown has not pr esented clear and convincing evidence to rebut these findings or to s upport his contentions that a c onflict of interest adversely affected his trial counsel’s performance and that there was collusion among members of the office. The district court’s ru ling that the CCA did not unreasonably apply clearly established federal law when it rejected this claim is not debatable.8 Claims Four through Six The district court determined that th ese claims were pro cedurally defaulted because Mr. Brown could have raised them in his direct appeal but did not. As with Claim One, Mr. Brown contends that he can establish cause for failing to raise these claims because his postconvic tion appellate counsel was in effective. However, as discussed above, there is no co nstitutional right to an atto rney in state postconviction proceedings under Coleman , and Mr. Brown has not shown that an exception to Coleman applies here, see Middlebrooks , 843 F.3d at 1136. Therefore, reasonable jurists could not debate the correctness of the district court’s dismissal of these claims. Claim Seven The district court ruled that Mr. Brown failed to assert cause for procedurally defaulting on his claim against his appellate c ounsel and his retained counsel. In his filings before this court, Mr. Brown addr esses this ruling in only a cursory manner; he has not demonstrated that reasonable jurists could debate whether this claim should have been resolved differently or that any issues related to this claim deserve encouragement to pr oceed further. See LeFevers v. Gibson , 182 F.3d 705, 725 (10th Cir. 1999) (“[I]ssues adverted to in a perfunctory manner and without developed argumentation are deemed waived on appeal.”). Claim Eight In addition to finding Claim Eight proced urally defaulted, the district court concluded that Mr. Brown faile d to make a showing of act ual innocence to establish a9 fundamental miscarriage of justice that would excuse the default. See Schlup v. Delo , 513 U.S. 298, 324 (1995) (requiring that innocence be supported by “new reliable evidence . . . that was not pres ented at trial”). Mr. Brow n points to various types and pieces of evidence—including DNA, shoe prin t, hair fiber, saliva, and testimony— that he argues support his contention that someone else committed the robbery. However, none of this evidence “affi rmatively demonstrat es his innocence,” Phillips v. Ferguson , 182 F.3d 769, 774 (10th Cir. 1999). Therefore, reasonable jurists would not debate the district court’ s conclusion that it falls s hort of demonstrating “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence,” Schlup , 513 U.S. at 327. Accordingly, we deny Mr. Brown’s request for a COA and his motion to proceed in forma pauperis and dismiss the appeal.

Entered for the Court
Gregory A. Phillips Circuit Judge