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Salazar v. Green

United States Court of Appeals, Tenth Circuit

February 13, 2017

GARY GILBERT SALAZAR, Petitioner - Appellant,
v.
STEVEN GREEN; CYNTHIA H. COFFMAN, Attorney General of the State of Colorado, Respondents - Appellees.

         (D.C. No. 1:16-CV-00935-LTB) (D. Colo.)

          Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

         ORDER

         This 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 this order.

         In 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 APPEALABILITY[*]

          Carlos F. Lucero Circuit Judge

         Gary 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.

         I

         Following 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.

         Salazar 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 court.

         II

         A 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.

         In his 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).

         A 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 for ...


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