UNITED STATES COURT 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 renewed 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 

March 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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 Linzy pulled his former girlfriend from her car and dragged her down the street 

into a vacant house where he beat and raped her. He was convicted by a jury of second 

degree kidnapping, sexual assault, and third degree assault. He was adjudicated a 

habitual criminal and sentenced to 96 years 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 assault 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 resolved all twelve claims but we are concerned only with those 

raised in his COA application, all ineffective assistance of counsel claims. With respect 

to trial counsel, he claimed counsel should have 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 the asportation element of the 

kidnapping conviction. As for appellate counsel, he said counsel rendered deficient 

performance by failing to raise the sufficiency of the evidence argument on appeal.2

The district judge concluded Linzy’s ineffective 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 claims were Claims 3(f), 7 and 9. 

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grounds) or (2) not fairly presented to the state courts and would now be procedurally 

barred under Colorado law (anticipatory 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) (“Where, 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 habeas court from hearing a substantial claim of 

ineffective assistance at trial if, in the initial-review collateral 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 “substantial,” i.e., they 

lacked “some merit.” Id. at 1318. 

Although the rape kit was originally mislabeled (and consequently 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 “expressed 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 assistance of counsel claim should ordinarily be 

raised in a postconviction proceeding, not on direct appeal. Only in rare instances are 

ineffective assistance of counsel claims presented so that they need no further factual 

development prior to review on direct appeal.”) (citation and quotations omitted). 

Nevertheless, the rule in Martinez has been extended to circumstances where the “state 

procedural framework, by reason of its design and operation, makes it highly unlikely in 

a typical case that a defendant will have a meaningful 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. 

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concluded the State had presented sufficient foundation for the admission of the DNA 

expert’s testimony. According to that testimony, a forensic scientist from the Denver 

Police Department Crime Lab tested the vaginal swabs collected from the victim and 

found semen. The DNA expert then extracted DNA from the semen, compared it to the 

DNA sample taken from Linzy, and concluded 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 sufficiency of the evidence 

 

4 Compare Valencia, 257 P.3d at 1206 (concluding trial court abused its discretion 

by allowing an expert to testify as to results of her testing on specimens taken from the 

defendant and victim where there was no evidence, other than the expert’s own 

conclusory statements, establishing the specimens came from the defendant and victim). 

Evidentiary rulings by state courts generally do not present a viable 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 evidentiary rulings unless the 

rulings in question rendered the trial so fundamentally unfair as to constitute a denial of 

federal constitutional rights.”) (citation 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 constitutional claim cognizable under § 2254. See

Strickland v. Washington, 466 U.S. 668, 685-86 (1984). But, even if legally relevant, 

Valencia does not help him. As the district judge concluded, that case is not factually 

comparable because of trial counsel’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 not provided any 

evidence the semen sample tested was not obtained from the victim.

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argument by moving for a directed verdict at the close of the State’s evidence. 

Alternatively, he found the victim’s testimony, which was corroborated by the police and 

an examining physician, to have been sufficient to support the asportation element of 

kidnapping. 

 As to the ineffective assistance of appellate counsel claim, the Colorado Court of 

Appeals determined the evidence to be sufficient to support the kidnapping conviction 

and therefore counsel was not ineffective 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 (1979) (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 sufficiency 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 “only if the applicant has made a substantial 

 

5

 In rejecting the ineffective assistance of appellate counsel claim, the Colorado 

Court of Appeals said: 

Linzy has failed to show meritorious grounds for reversal. Sufficient evidence in 

the record, including the victim’s testimony and evidence of the severe scraping 

and bruising which experts said resulted from the victim being dragged to the 

house where Linzy locked her, supports the jury’s verdict . . . . 

 Thus, we conclude Linzy has not shown how he was prejudiced by 

appellate counsel’s conduct . . . . 

(R. at 524 (citation omitted).) 

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a 

showing, he must demonstrate “that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different manner or that the 

issues presented were adequate to deserve encouragement to proceed further.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because his petition was 

denied in part on procedural grounds, he faces a double hurdle—he must establish “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.” 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 should be allowed to proceed further.” Id.

In cogent orders the district judge thoroughly and correctly 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 appellate counsel was not 

ineffective. Federal inquiry is limited to whether 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. § 

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2254(d); see also Upchurch v. Bruce, 333 F.3d 1158, 1164 (10th 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 companion request to proceed on appeal in forma pauperis or 

ifp (that is without prepayment of fees) is moot. Linzy must pay the full amount of all 

 

6

 The district judge should not have explicitly decided the ineffective assistance of 

appellate counsel claim de novo (i.e., no deficient performance or prejudice). 

Determination of that claim should have rested 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) (“Establishing that a state court’s application of Strickland was 

unreasonable under § 2254(d) is . . . difficult. The standards 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 review 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 the state court record without 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.”). 

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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 relieve a party from paying the filing and 

docketing fees. As it plainly states, the statute only excuses “prepayment” of the fees. 

See 28 U.S.C. § 1915(a)(1); see also Flint v. Haynes, 651 F.2d 970, 972 (4th Cir. 1981) 

(“The use of the word ‘prepayment’ in [§ 1915(a)(1)] indicates that Congress did not 

intend to waive forever the payment of costs, but rather it intended to allow qualified 

litigants to proceed without having to advance the fees 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. 

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