UNITED STATES COURT OF APPEALS TENTH CIRCUIT

DANIEL L. ROSALES, Petitioner - Appellant,

v. KEVIN MILYARD; JOHN SUTHERS, The Attorney General of the State of Colorado, Respondent - Appellees. No. 13-1183 (D.C. No. 1:10-CV-03101-CMA) (D. Colo.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

Before KELLY , HOLMES, and MATHESON , Circuit Judges.

Daniel L. Rosales, a Colorado state prisoner proceeding pro se, 1 seeks a certificate of appealability (“COA”) to appeal the distri ct court’s dismissal of his 28 U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal the denial of a habeas application). Mr. Rosale s also requests leave to proceed in forma pauperis

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. A pp. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Rosales is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007)

. “[T]his rule of liberal construction stops, however, at the point at which we begin to serve as his advocate.” United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

### October 24, 2013 Elisabeth A. Shumaker Clerk of Court-2- (“ ifp ”). Exercising jurisdiction under 28 U.S. C. § 1291, we deny both requests and dismiss this matter. I. BACKGROUND A. State Court Proceedings In November 2002, a Colorado state cour t jury found Mr. Rosales guilty of two counts of first degree murder after deliberati on, two counts of first degree felony murder, one count of first degree burglary, one coun t of second degree assault, and one count of violating a restraining order. See People v. Rosales , 134 P.3d 429, 431 (Colo. App. Aug. 11, 2005). The evidence showed that on the night of the murders, Mr. Rosales beat his girlfriend, then took a shotgun and drove to his estranged wife’s apartment. Mr. Rosales broke into the apartmen t by firing two shots to disable locks on the apartment door. He then reloaded his gun on his wa y to the bedroom, where he di scovered his estranged wife with the man she had been dating. M r. Rosales shot and killed them both. Id. Mr. Rosales was sentenced to two conc urrent life sentences for murder, a concurrent prison term of thirty-two years for burglary, a consecutive term of sixteen years for assault, and a concurrent term of eighteen months for violating the restraining order. The state trial court additionally or dered restitution in February 2003, a month after Mr. Rosales filed his notice of direct appeal. Id. On direct appeal, the Colo rado Court of Appeals (“CCA”) affirmed Mr. Rosales’s conviction and remanded the case to the tr ial court with instructions to amend the mittimus to include an order of restitution. Id. at 436. The Colorado Supreme Court-3- denied Mr. Rosales’s petition for certiorari. See Rosales v. People , No. 05SC684, 2006 WL 1688339 (Colo. May 22, 2006). Mr. Rosales next filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Pr ocedure. The state trial cour t denied that motion. The CCA affirmed denial, see People v. Rosales , No. 07CA1881 (Colo. App. Mar. 26, 2009), and the Colorado Supreme Court denied certiorari. See Rosales v. People , No. 2009SC409 (Colo. Sept. 7, 2010) (en banc). All of the claims for which Mr. Rosa les seeks COA were presented to and adjudicated by the Colorado co urts and therefore were exha usted for purposes of habeas review. B. Federal Habeas Petition Mr. Rosales asserted nine cl aims at the district court, the first six of which he continues to assert in his application for COA: (1) Trial court error in allowing a faulty jury instruction on self-induced intoxication; (2) Prosecutorial misconduct in closing argument; (3) Lack of trial court jurisdic tion to impose restitution; (4) Trial court error in imposing restitution after Mr. Rosales sold his house; (5) Double Jeopardy Clause and Due Process violations in imposing restitution; (6) Ineffective assistance of trial counsel; (7) Trial court error in not holding an evid entiary hearing during the postconviction proceeding;-4- (8) The postconviction court’s vi olation of state civil and criminal rules in denying Mr. Rosales’s request to amend his Rule 35 (c) motion as well as his request for an evidentiary hearing; and (9) Ineffective assistance of postconviction counsel. The district court produced a thorough order examining each of Mr. Rosales’s claims. See Rosales v. Milyard , No. 10-cv-03101-CMA, 2013 WL 1302657, at *1 (D. Colo. Mar. 29, 2013) (unpublishe d) (hereinafter “Dist. Ct. Order.”). The district court denied Claims One, Two, Six, and Seven for lack of merit. It denied Claims Three, Four, and Five for lack of jurisdiction, holding th at restitution payments are not the sort of restraint on liberty contemplated by the “in cu stody” requirement of § 2254(a). Finally, the district court held that Claims Eight and Nine failed to state cognizable federal habeas claims. The district court further denied COA, holding that Mr. Rosales had not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c). It also certified that, pursuant to 28 U.S.C. § 1915(a)(3 ), any appeal of its order would not be taken in good faith and ifp status should therefore be denied on appeal. II. DISCUSSION Mr. Rosales may not appeal the district court’s denial of his § 2254 petition without a COA. See Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003); Clark v. Oklahoma , 468 F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Rosales must-5- make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, Mr. Rosales must demonstrate “that jurists of reason could disagree with the district court’ s resolution of his constitutional claims or that jurists could conclude that the i ssues presented are adequate to deserve encouragement to proceed further.” Dulworth v. Jones , 496 F.3d 1133, 1136-37 (10th Cir. 2007) (quotations omitted). As the district court noted, federal ha beas review of state court decisions is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA provides that if a state court adjudica ted the merits of a claim, a federal court cannot grant habeas relief unless the state cour t decision “was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States,” 28 U. S.C. § 2254(d)(1); or “was based on an unreasonable determination of the facts in li ght of the evidence presented in the State court proceeding,” id. § 2254(d)(2). When deciding whether to grant a COA, we are required to “look to the District Court’ s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debata ble among jurists of reason.” Miller-El , 537 U.S. at 366. In his application for COA, Mr. Rosales reasserts the first six claims that he presented in his habeas petition at the district court. We address each of these claims in

turn. A. Claim One-6- Mr. Rosales asserts in Claim One that th e state trial court us ed a faulty jury instruction on self-induced intoxication. According to Mr. Rosa les, he was heavily intoxicated the night of the murders. See Aplt. Br. at iii. He contends that although selfinduced intoxication is not an affirmative de fense in Colorado, it can reduce the level of culpability associated w ith an act if the factfinder determ ines that the state has failed to satisfy its burden of proof as to th e mens rea of specific intent. Mr. Rosales contends th at the jury instruction 2 in his case was erroneous because: (1) it improperly focused on whether, as a result of his intoxication, he lacked the capacity to form specific intent, rather than whether he had in fact form ed specific intent; (2) it failed to instru ct the jury that it must consider evidence of self-induced intoxication, stating only that it “may” consid er such evidence; (3) it misled the jury by suggesting that

2 The jury was inst ructed that they may consider evidence of self-induced intoxication in de termining whether or not intoxication negates the existenc e of the particular state of mind of with intent, which is also known as specific intent or after deliberation, and with intent. The prosecution has the burden of proving all of the elements of the crimes charged. If you find th e defendant was intoxicated to such a degree that he did not form the specif ic intent which is a required element of the crimes of first-degree murder, amended counts 1, 2, 3, and 4; firstdegree burglary, Count 5; and second-d egree assault, Count 7, you should find defendant not guilty of those char ges. Self-induced intoxication is not applicable to the state of mind of kn owingly, which is an element of the general intent crimes of the lesser in cluded offense of murder in the second degree, lesser included offense of first-degree criminal trespass, kidnapping, Count 6, violation of re straining order, Count 8; and violent crime enhancers, which are counts 9 and 10. Dist. Ct. Order at *7 (quoting Rosales , No. 01CR3022, Trial T r., Nov. 20, 2002, at 63- 64).-7- the jury may not take evidence of intoxication into account unless the prosecution proves beyond a reasonable doubt that his intoxicati on was so severe that he could not form specific intent; and (4) the CCA on direct appe al admitted the instruction was an incorrect statement of law but failed to correct the harm it caused. The CCA considered Mr. Ro sales’s jury instruction cl aim both on direct appeal and on post-conviction review. It denied Mr. Rosales’s claim in both instances. See Rosales , 134 P.3d at 433-34; Rosales , No. 07CA1881 at 6-8. “Claims of erroneous jury instructions can justify setting aside a state conviction on habeas only if ‘the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constitutional sense, or is otherwise constitutionally objectionable as, for exam ple, by transgressing the constitutionally rooted presumption of innocence.’” Dockins v. Hines , 374 F.3d 935, 938-39 (10th Cir. 2004) (quoting Brinlee v. Crisp , 608 F.2d 839, 854 (10th Cir. 1979)). The district court concluded that Mr. Rosa les failed to make this required showing. Specifically, it held that (1) the jury instruction properly dir ected jurors to determine if Mr. Rosales had in fact formed specific intent, in keeping with Colorado law, see People v. Versteeg , 165 P.3d 760, 766-68 (Colo. App. 2006); 3 (2) Mr. Rosales’s argument that

3 Mr. Rosales argues the district court failed to mention that People v. Harlan , 8 P.3d 448 (Colo. 2000) (en banc), overruled on other grounds by People v. Miller , 113 P.3d 743 (Colo. 2005) (en banc), requires juries to be instructed that they “must” consider evidence of self-induced intoxication. But Harlan states no such requirement. It merely requires that if a jury receives an instruction on intoxication, it shou ld be instructed to Continued . . .-8- the instruction should have said the jurors “must” rather than “may” consider evidence of self-induced intoxication was “without basis,” Dist. Ct. Order at *7, because Mr. Rosales did not show that the jury di sregarded the instruction to c onsider all evidence; and (3) nothing in the jury instruction reduced the prosecution’s burden of proof. Finally, after reviewing the CCA’s opinion on direct appeal “with close scrutiny,” the district court could find no admission in the CCA’s opinion that the instructi on was an incorrect statement of law. Id. at *8. We agree with this analysis. We conclude that jurists of reason coul d not disagree with the district court’s denial of Claim One and deny COA. B. Claim Two Mr. Rosales asserts in Claim Two th at the prosecution committed misconduct in closing argument by urging the jury to nullify the law regarding self-induced intoxication. In his request for COA, Mr. Rosales does not challenge the district court’s reasoning in denying this cl aim. Rather, he repeats hi s contentions from his habeas petition. Mr. Rosales argues that the prosecu tion improperly suggested to the jury that acquitting Mr. Rosales of first degree murder would reward his int oxication. He also claims prejudice from the CCA’s plain error revi ew of this issue. The CCA applied plain error review on direct appeal because tr ial counsel did not raise contemporaneous

consider whether the defendant had in fact formed specific intent, and not whether the defendant lacked capacity to form specific intent. Id. at 471.-9- objections to the improper statements. See Rosales , 134 P.3d at 434-36. A prosecutor’s improper statement amount s to prosecutorial misconduct only if it “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright , 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo , 416 U.S. 637, 643 (1974)). This determination must be based on the totality of the circumstances. See Jackson v. Shanks , 143 F.3d 1313, 1322 (10th Cir. 1998). “Inappropriate prosecutorial statem ents, standing alone, would not justify a reviewing court” granting relief on a claim of prosecutorial misconduct. United States v. Young , 470 U.S. 1, 11 (1985). The district court concluded that Mr. Rosales has not shown that the alleged prosecutorial misconduct was egregiously unf air, or that the prosecutor’s comments amounted to “jury nullification,” defined as “a violation of a juror’s oath to apply the law.” Dist. Ct. Order at *10 (quoting United States v. Thomas , 116 F.3d 606, 614 (2d Cir. 1997)). We agree with the district court that the CCA’s denial of the claim satisfies AEDPA review. Reasonable jurists would not find this conclusion debatable. We therefore deny COA. C. Claims Three, Four, and Five In Claims Three, Four, and Five, Mr. Rosales challenges the trial court’s imposition of restitution after he had filed his notice of appeal. Mr. Rosales argues that he has been ordered to pay the same restitu tion twice, in violation of his due process rights and constitutional protectio n against double jeopardy. Th e district court dismissed-10- these claims for lack of jurisdiction. In his request for COA, Mr. Rosales does not explain why he challenges the di strict court’s reasoning. He merely maintains that he complied with exhaustion and notice requirements and that the district court’s refusal to address these claims on the merits itsel f violates his due process rights. The district court properly held that a restitution pa yment is not the sort of significant restraint on liberty contemplated by 28 U.S.C. § 2254(a), which grants federal court jurisdiction over an application for ha beas “of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States” (emphasis added). See Erlandson v. Northglenn Mun. Court , 528 F.3d 785, 788 (10th Cir. 20 08). Because the “in custody” language of § 2254(a) is jurisdictional, id. , the district court corre ctly concluded that it lacked subject matter jurisdiction over Claims Three, Four, and Fi ve. We deny COA on these claims. D. Claim Six In Claim Six, Mr. Rosales alleges ineff ective assistance of counsel resulting from trial counsel’s failure to (1) investigate Mr. Rosales’s intoxica tion the night of the murders; (2) interview jail intake personnel regarding Mr. Rosales’s intoxication level; (3) present a provoked heat of passion defense; (4) obt ain independent blood analysis; (5) advise Mr. Rosales before he waived his right to testify that only one witness would testify for the defense; (6) object to the int oxication instruction; and (7) object to the-11- prosecution’s statements during closing argument. 4
To establish a Sixth Amendment violation for ineffective assist ance of counsel, a petitioner must establish that (1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s deficien t performance resulted in prejudice to his defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). “Judicial scrutiny of counsel’s performan ce must be highly deferential.” Id. at 689. Petitioner must overcome a strong pres umption that counsel’s representation was reasonable with evidence that co unsel made errors so serious as to violate the defendant’s Sixth Amendment right to counsel. See Harrington v. Richter , 131 S. Ct. 770, 787 (2011). As to prejudice, a petitioner must esta blish “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U.S. at 694. “The likelihood of a different resu lt must be substantial, not just conceivable.” Richter , 131 S.Ct. at 792 (citing Strickland , 466 U.S. at 693). Under AEDPA, “[t]he pivotal question is whether the state court’s application of the Strickland standard was unreasonable.” Id. at 785. Rather than asking whether

4 The district court determined that thr ee additional subclaims asserting ineffective assistance of trial counsel in Mr. Rosales’s original petition were procedurally barred. These subclaims contended that trial couns el failed to (1) interview Mr. Rosales’s girlfriend regarding his assau lt of her; (2) object to th e prosecution’s comments during voir dire; and (3) object to inadmissible prio r act evidence. Dist. Ct. Op. at *2. Mr. Rosales does not attempt to raise these clai ms in his request for COA, and we do not address them.-12- defense counsel’s performance fell below the Strickland standard, we ask “whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Id. at 788. The CCA, affirming denial of Mr. Ro sales’s post-conviction challenge, rejected all of his ineffectiv e assistance claims. See Rosales , 07CA1881. So long as the CCA reasonably applied the Strickland standard to these claims, hab eas relief is not available. 1. Subclaims (i) and (ii): In vestigation and Interviews Mr. Rosales alleges that trial counsel fa iled to investigate his intoxication level and interview jail intake personnel regarding his intoxication. Specific ally, he asserts that trial counsel never investigated his histor y of alcohol abuse and should have called witnesses who could testify that he was stagge ring and slurring his words the night of the murders. He also contends that counsel should have obtained a copy of his bar tab from one of the bars where he was drinking the night of the murders to establish how much alcohol he had consumed. Similarly, he argu es that counsel should have interviewed the intake case manager at the Jeffe rson County Jail, who had told him that his blood alcohol content (“BAC”) was very high when he was admitted to the jail. Trial counsel “has a duty to make re asonable investigations or to make a reasonable decision that makes particul ar investigations unnecessary.” Strickland , 466 U.S. at 691. The district court concluded th at obtaining copies of Mr. Rosales’s bar tabs was not a reasonably necessary investiga tion because a bar itemizes how much an individual paid for beverages and/or food but not how much al cohol he actually consumed. It also held that Mr. Rosales has not presented evidence that trial counsel was-13- ineffective in failing to investigate his prior drug and alcohol abuse, and that Mr. Rosales has not established that trial counsel did not ask the jail intake manager or those who saw him drinking to testify. The district cour t concluded that Mr. Rosales had not provided sufficient support to over come the strong presumpti on of counsel’s reasonable representation. The district court further he ld that even if Mr. Rosales could show that trial counsel was deficient in failing to inves tigate these issues, Mr. Rosales was not prejudiced. As the district court noted, th e evidence against Mr. Rosales at trial was overwhelming. Witnesses testified that Mr. Rosales drank regularly, often beat his wife and made disparaging remarks about her and—after their estrangement—about her boyfriend. They also testifie d that Mr. Rosales stated he wa nted to kill his estranged wife and was jealous of her boyfrien d. Forensic evidence indicat ed Mr. Rosales shot at the locks on his wife’s apartmen t door, then was able to quic kly reload his shotgun and proceed to the bedroom to shoot the victim s before they could escape. Given this overwhelming evidence, the district court held that Mr. Rosales had not established that trial counsel’s failures prejudiced him. Mr. Rosales now contends that the distri ct court was wrong to conclude that the bar tab investigation was unnecessary. He ar gues that evidence of his bar tab, when combined with inte rviews of witnesses who could tes tify to how much he was drinking, would lead to an accurate assessment of his BAC at the time the crimes took place. He also argues that counsel failed to contact po tential witnesses to find out whether they-14- could testify. Because Mr. Rosales has not shown he wa s prejudiced by tria l counsel’s actions under the second part of the Strickland standard, 466 U.S. at 692, his arguments do not suffice to demonstrate that reasonable jurist s “could disagree with the district court’s resolution of [Mr. Rosales’s] constitutional claims or that jurists could conclude that the issues presented are adequate to deserv e encouragement to proceed further.” Dulworth , 496 F.3d at 1137 (quota tions omitted). The district court’ s analysis confirms and it is not debatable that the CCA reasonably applied the Strickland standard. We therefore deny COA on this issue. 2. Subclaim (iii): Failure to Present a Provoked Heat of Passion Defense Mr. Rosales argues that trial counsel was ineffective because he did not pursue a “provoked heat of passion” defense. Mr. Rosa les argues that he was “in an extreme state of emotional outrage” aggravated by his intoxica tion just before he dr ove to his estranged wife’s apartment. Aplt. Br. at 41. He cont ends that he did not know that his estranged wife’s boyfriend would be pres ent when he went to the ap artment, and that when he found him in bed with his estranged wife, he was propelled into a state of “extreme emotional upheaval.” Id. at 43. Mr. Rosales asserts that trial counsel should have sought a jury instruction regarding the heat of passion defense under Colorado law, which mitigates second degree murder when “performed upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim.” See Colo. Rev. Stat. § 18- 3-103(3)(b).-15- The district court reviewed the CCA’ s holding regarding the heat of passion defense. The CCA stated that the facts of Mr . Rosales’s case do not su pport a theory that Mr. Rosales acted in a sudden heat of passion after a hi ghly provoking act of the victim. Rosales , No. 07CA1881 at 16-17. As the CCA noted, Mr. Rosales beat his girlfriend, then obtained a shotgun, drove to the home of his estranged wife, shot the locks off her door, and reloaded his weapon before even entering her bedroom and finding her with another man. Mr. Rosales also knew for quite some time that his wife had been seeing another man, and he had told others on multiple occasions in the months preceding the murders that he wanted to kill his wife. The district court agre ed with the CCA that “[t]he evidence was overwhelming that [Mr. Rosales] intended to murder his wife before he even entered the bedroom in her apartment.” Dist. Ct. Order at *17. Mr. Rosales argues in his request for COA that under Colorado law, a defendant is entitled to an affirmative defens e instruction whenever there is a “scintilla of evidence” to support that defense. See, e.g. , People v. Jones , 677 P.2d 383, 385 (Colo. App. 1983), rev’d on other grounds , 711 P.2d 1270 (Colo. 1986) (en banc). He contends that trial counsel should have sought a heat of pa ssion instruction based on evidence that Mr. Rosales and his wife had engaged in marita l sexual relations during their separation and were trying to salvage their marriage. Mr. Rosales argues he naturally would have been enraged to find his wife in bed with another man. He furthe r asserts that his aggressive behavior in breaking into his wife’s apartmen t “indicate[s] at least a modicum of rage on his part.” Aplt. Br. at 43.-16- We agree with the district court that the CCA’s decision regarding counsel’s failure to pursue the heat of passion de fense was not “based on an unreasonable determination of the facts in light of th e evidence presented in the State court proceeding[s].” 28 U.S. C. § 2254(d)(2). Jurists of reason could not debate the district court’s conclusion that trial counsel cannot be found ineffective for having failed to present a defense that was not supported by the facts. Even if Mr. Rosales could ha ve been entitled to a jury instruction on the heat of passion defense based on a scintilla of eviden ce, he has not demonstrated that trial counsel’s failure to raise the defense in the first place am ounts to ineffective assistance. As the district court and the CCA noted, th ere was ample evidence of Mr. Rosales’s premeditation, including his statements on seve ral occasions in the months preceding the murders that he wanted to kill his wife. Mr. Rosales has not demonstrated that trial counsel’s failure to raise the heat of passion defense was unreasonable or that it prejudiced him at trial. The district cour t’s AEDPA review of this claim would not be debatable among jurists of reason. We therefore deny COA on this issue. 3. Subclaim (iv): Indepe ndent Blood Analysis Mr. Rosales contends that trial counsel fa iled to present a blood alcohol report to the jury and to call an expert to provide scientific evidence regarding his level of intoxication. The district court noted that Mr. Rosa les failed to explain what the expert testimony would have s hown about his ability or inability to form the required specific-17- intent. It also noted that during a pretrial hearing, the prosecution produced an expert who provided testimony regarding the effect s of alcohol on Mr. Rosales’s behavior before and after the murders. The expert te stified that Mr. Rosales exhibited signs of a high tolerance for alcohol and that he de monstrated rational thought processes in statements he made soon after the murders. The district court conc luded that, because the prosecution’s addiction psychi atry expert could testify at trial to Mr. Rosales’s high tolerance, defense counsel c ould not be found ineffective for not calling an expert to testify regarding Mr. Rosales’s intoxication level. It also noted that Mr. Rosales failed to demonstrate how the BAC report—which was taken twelve hours after the murders— would be relevant to his level of int oxication at the time of the murders. Mr. Rosales now argues that the distri ct court was incorrect to focus on trial counsel’s failure to produce the existing BAC report. He contends instead that trial counsel could have obtained information to determine his BAC at the time of the shootings by using an expert witness to extrapolate his BAC from bar tab and eyewitness evidence. He also contends th at counsel failed to obtain an expert equipped to rebut the prosecution’s own expert evidence. Apart from whether Mr. Rosale s should be allowed to rais e these arguments at this stage, he still has failed to show that the CCA unreasonably determin ed that trial counsel was not ineffective in failing to present this BAC evidence at trial. Even if Mr. Rosales could make that showing, he has produced no evidence that tr ial counsel’s failure prejudiced him in light of the overwhelming evidence against him. We therefore deny-18- COA on this issue. 4. Subclaim (v): Failure to Advise that Only One Witness Would Be Called for Defense Mr. Rosales asserts that trial counse l listed seventeen people on the defense witness list but only called one w itness. He contends that he would not have waived his right to testify if he had known that only one witness would appear on his behalf. He argues that he would have tes tified about how much he had been drinking on the night of the murders, as well as his prior drug use and depression. As the district court stated, the trial c ourt thoroughly advised Mr. Rosales of his right to testify, and Mr. Rosales stated at tr ial that he was not pressured or coerced in deciding not to testify. Even if trial counsel acted unreasonabl y by calling only one witness, Mr. Rosales has provided no evidence that he was prejudiced by trial counsel’s decision. We agree with the district court’s analys is for substantially the same reasons and conclude that reasonable jurists would not debate the district court’s denial of this claim. We deny COA on this issue. 5. Subclaims (vi) and (vii): Intoxication Instruction a nd Prosecution’s Comments Finally, Mr. Rosales asserts that counse l failed to object to an erroneous intoxication instruction and nullifying statem ents made by the pros ecution alleged in Claims One and Two. [Aplt. Br. at 24.] Based on our and the dist rict court’s earlier consideration of those two claims, Mr. Rosa les was not prejudiced by trial counsel’s-19- failure to object. Dist. Ct. Order at *18. We hold that reasona ble jurists would not debate the district court’s conclusion that the CCA’s denial of these claims was reasonable. A COA is therefore denied. III. CONCLUSION We deny Mr. Rosales’s request for a COA and dismiss this matter. We also deny his motion to proceed ifp

. ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge