No. 1:16-CV-00935-LTB) (D. Colo.)
LUCERO, MATHESON, and BACHARACH, Circuit Judges.
matter is before the court on the appellant's petition
for panel and en banc rehearing. See Fed. R. App. P.
35 and 40. Upon consideration, the request for panel
rehearing is granted in part and for the limited purpose of
amending one sentence of the Order issued originally on
January 13, 2017. The amended Order Denying Certificate of
Appealability is attached to this order. The clerk is
directed to file the amended decision effective the date of
addition, the petition was circulated to all the judges of
the court who are in regular active service. As no judge on
the original panel and no judge in regular active service
requested that the court be polled, the request for en banc
rehearing is denied.
ORDER DENYING CERTIFICATE OF
F. Lucero Circuit Judge
Salazar, a state prisoner proceeding pro se, seeks a
certificate of appealability ("COA") to challenge
the district court's dismissal of his 28 U.S.C. §
2254 petition. We deny a COA and dismiss the appeal.
a jury trial, Salazar was convicted in Colorado state court
of conspiracy to commit first-degree murder, two counts of
felony menacing, and possession of a weapon by a previous
offender. On direct appeal, the Colorado Court of Appeals
affirmed Salazar's convictions but remanded for
resentencing. After resentencing, Salazar unsuccessfully
sought state post-conviction relief under Colo. R. Crim. P.
35(c). The Colorado Court of Appeals affirmed the denial of
state post-conviction relief, and the Colorado Supreme Court
denied his petition for a writ of certiorari.
then filed a § 2254 habeas petition in the U.S. District
Court for the District of Colorado. The district court
dismissed all but one of Salazar's claims as procedurally
defaulted and denied the remaining claim on the merits. It
declined to issue a COA. Salazar now seeks a COA from this
petitioner may not appeal the denial of habeas relief under
§ 2254 without a COA. 28 U.S.C. § 2253(c)(1). We
will issue a COA "only if the applicant has made a
substantial showing of the denial of a constitutional
right." § 2253(c)(2). To make such a showing,
Salazar must demonstrate "that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). If a district court
denies a § 2254 petition on procedural grounds, a
petitioner must also show "that jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling." Id.
properly exhausted claim, Salazar argues that trial counsel
was ineffective for failing to object to jury instructions.
Specifically, he contends counsel should have objected to the
conspiracy instruction on two grounds: (1) it omitted an
overt act element; and (2) it improperly shifted the burden
of proof to the defense by directing the jury to enter a not
guilty verdict if it found that the government had failed to
prove "each of the elements" rather than "any
one or more" of the elements of the offense. To obtain
habeas relief on this claim, Salazar must show that the state
courts' adjudication was either "contrary to, or
involved an unreasonable application of, clearly established
Federal law" or "based on an unreasonable
determination of the facts in light of the evidence
presented." § 2254(d)(1), (2).
petitioner claiming ineffective assistance of counsel must
establish "that counsel made errors so serious that
counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment" and
that "the deficient performance prejudiced the
defense." Strickland v. Washington, 466 U.S.
668, 687 (1984). To establish prejudice, a "defendant
must show that there is a reasonable probability that, but