FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 15, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court TONEY L. BROWN,
Petitioner - Appellant,
v. No. 17-1206 (D.C. No. 1:14-CV-02218-WJM) DAVID ZUPAN; CYNTHIA H. (D. Colo.) COFFMAN, Attorney General of the State of Colorado,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________
Toney L. Brown, a Colorado state prisoner proceeding pro se,1 seeks a
certificate of appealability (COA) 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 deny a COA and dismiss this matter.
Mr. Brown was convicted of aggravated robbery, first degree criminal
trespass, two counts of third degree assault, false imprisonment, and two habitual
criminal counts. People v. Brown, (Colo. App. No. 03CA0316, May 24, 2007)
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Brown is proceeding pro se, we construe his filings liberally. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). (unpublished). After seeking postconviction relief in state court, Mr. Brown filed his
§ 2254 application asserting eight claims for relief: his Sixth and Fourteenth
Amendment rights were violated because his trial counsel was ineffective (Claim
One); his Sixth Amendment rights were violated because his first public defender
was ineffective (Claim Two); his Sixth and Fourteenth Amendment rights were
violated because his trial counsel had a conflict of interest (Claim Three); his Fourth
Amendment rights were violated because the police improperly attempted to detain
him and seized evidence from his vehicle (Claim Four); his Fifth Amendment rights
were violated because a police officer improperly identified him (Claim Five); his
Sixth and Fourteenth Amendment rights were violated because the prosecution failed
to preserve relevant 911 recordings (Claim 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 ineffectiveness (Claim Seven); and his Sixth and
Fourteenth Amendment rights were violated because certain exculpatory evidence
was not presented at his trial (Claim Eight).
The district court dismissed all but the second and third claims as procedurally
defaulted because Mr. Brown failed to exhaust them in state court, where they would
now be barred. On Claim Two, the court determined that the performance of
Mr. Brown’s first public defender was not deficient under Strickland v. Washington,
466 U.S. 668, 688 (1984). On Claim Three, the court concluded that the Colorado
Court of Appeals (CCA) did not unreasonably apply clearly established federal law
2 when it determined Mr. Brown’s trial counsel did not have a conflict of interest. In
addition, the court declined to excuse Mr. Brown’s procedural default of Claim Eight
based on arguments of his actual innocence. 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 substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claim[] debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). When a court dismisses a § 2254 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 that 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 two postconviction motions, he did not pursue this claim in
his appeals of those postconviction challenges, and therefore the claim, which had
several subparts, was procedurally defaulted. Generally, a prisoner is barred from
obtaining federal habeas review of a claim that he failed to exhaust in state court.
3 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 procedural 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-assistance-
of-trial-counsel claim is a substantial one, which is to say that [he] must demonstrate
that the claim has some merit.” Martinez, 566 U.S. at 14.
Mr. Brown has not shown that his underlying claim against his trial counsel is
substantial.2 “[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the 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 counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. He argues
that his trial counsel failed to seek suppression of certain physical and identification
evidence, present expert testimony on issues not directly related to his guilt, and
present other testimony that would controvert minor details from his case, but he has
not shown a reasonable probability that the outcome of his trial would have been
different had these strategies been pursued. See id.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 15, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court TONEY L. BROWN,
Petitioner - Appellant,
v. No. 17-1206 (D.C. No. 1:14-CV-02218-WJM) DAVID ZUPAN; CYNTHIA H. (D. Colo.) COFFMAN, Attorney General of the State of Colorado,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________
Toney L. Brown, a Colorado state prisoner proceeding pro se,1 seeks a
certificate of appealability (COA) 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 deny a COA and dismiss this matter.
Mr. Brown was convicted of aggravated robbery, first degree criminal
trespass, two counts of third degree assault, false imprisonment, and two habitual
criminal counts. People v. Brown, (Colo. App. No. 03CA0316, May 24, 2007)
* 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. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Mr. Brown is proceeding pro se, we construe his filings liberally. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). (unpublished). After seeking postconviction relief in state court, Mr. Brown filed his
§ 2254 application asserting eight claims for relief: his Sixth and Fourteenth
Amendment rights were violated because his trial counsel was ineffective (Claim
One); his Sixth Amendment rights were violated because his first public defender
was ineffective (Claim Two); his Sixth and Fourteenth Amendment rights were
violated because his trial counsel had a conflict of interest (Claim Three); his Fourth
Amendment rights were violated because the police improperly attempted to detain
him and seized evidence from his vehicle (Claim Four); his Fifth Amendment rights
were violated because a police officer improperly identified him (Claim Five); his
Sixth and Fourteenth Amendment rights were violated because the prosecution failed
to preserve relevant 911 recordings (Claim 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 ineffectiveness (Claim Seven); and his Sixth and
Fourteenth Amendment rights were violated because certain exculpatory evidence
was not presented at his trial (Claim Eight).
The district court dismissed all but the second and third claims as procedurally
defaulted because Mr. Brown failed to exhaust them in state court, where they would
now be barred. On Claim Two, the court determined that the performance of
Mr. Brown’s first public defender was not deficient under Strickland v. Washington,
466 U.S. 668, 688 (1984). On Claim Three, the court concluded that the Colorado
Court of Appeals (CCA) did not unreasonably apply clearly established federal law
2 when it determined Mr. Brown’s trial counsel did not have a conflict of interest. In
addition, the court declined to excuse Mr. Brown’s procedural default of Claim Eight
based on arguments of his actual innocence. 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 substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claim[] debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). When a court dismisses a § 2254 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 that 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 two postconviction motions, he did not pursue this claim in
his appeals of those postconviction challenges, and therefore the claim, which had
several subparts, was procedurally defaulted. Generally, a prisoner is barred from
obtaining federal habeas review of a claim that he failed to exhaust in state court.
3 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 procedural 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-assistance-
of-trial-counsel claim is a substantial one, which is to say that [he] must demonstrate
that the claim has some merit.” Martinez, 566 U.S. at 14.
Mr. Brown has not shown that his underlying claim against his trial counsel is
substantial.2 “[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the 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 counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. He argues
that his trial counsel failed to seek suppression of certain physical and identification
evidence, present expert testimony on issues not directly related to his guilt, and
present other testimony that would controvert minor details from his case, but he has
not shown a reasonable probability that the outcome of his trial would have been
different had these strategies been pursued. See id. at 693 (“It is not enough for the
2 We may deny COA on a ground that is supported by the record even if it was not relied on by the district court. See Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005). 4 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 could not debate the district court’s dismissal of this claim.
To the extent Mr. Brown argues that his postconviction appellate counsel were
ineffective for failing to raise issues related to his trial counsel’s effectiveness, their
alleged ineffectiveness cannot be cause for a procedural default 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), does 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 procedural defaults that occur in
appeals from initial-review collateral proceedings.” (internal quotation marks
omitted)). As a result, reasonable jurists could not debate the reasonableness of the
district court’s procedural ruling on this claim.
Claim Two
Mr. Brown’s first public defender represented him for about three weeks from
shortly after his arrest until the state court 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 appropriate 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 district court reviewed it de novo. See Gipson v.
5 Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004). “For federal habeas claims not
adjudicated on the merits in state-court proceedings, we exercise 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 the COA stage, we review the district court’s dispositive
ruling solely for debatability, as explained above. See Buck v. Davis, 137 S. Ct. 759,
773 (2017) (“The COA inquiry . . . is not coextensive with a merits 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 reasonable probability that, but for counsel’s
unreasonable errors, the outcome of his appeal would have been different.” Ellis v.
Hargett, 302 F.3d 1182, 1186 (10th 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 perspective at the time,” and “counsel is strongly
presumed to have rendered adequate 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 than some conceivable effect on the outcome of the
proceeding.” Id. at 1187 (“Reasonable probability is more than mere
speculation . . . .”).
The district court concluded that it was not unreasonable for the public
defender not to have preserved the 911 recordings before his representation of
6 Mr. Brown ended and that Mr. Brown’s subsequent inability to obtain 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 had 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 conclusion 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 conviction 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 second trial, Mr. Brown was represented by
counsel who had previously supervised his first public defender and another public
defender who represented one of the prosecution’s witnesses. Mr. Brown argues that
these connections created a conflict of interest. But the CCA determined that
Mr. Brown’s trial counsel left the public defender’s office more than four years
before he represented Mr. Brown and also before the office represented the
prosecution witness. Mr. Brown has not presented clear and convincing evidence to
rebut these findings or to support his contentions that a conflict of interest adversely
affected his trial counsel’s performance and that there was collusion among members
of the office. The district court’s ruling that the CCA did not unreasonably apply
clearly established federal law when it rejected this claim is not debatable.
7 Claims Four through Six
The district court determined that these claims were procedurally 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 postconviction appellate counsel was ineffective. However, as
discussed above, there is no constitutional right to an attorney 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 counsel and his retained counsel. In his
filings before this court, Mr. Brown addresses 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 proceed 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 procedurally defaulted, the district court
concluded that Mr. Brown failed to make a showing of actual innocence to establish a
8 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 presented at trial”). Mr. Brown points to various types and
pieces of evidence—including DNA, shoe print, hair fiber, saliva, and testimony—
that he argues support his contention that someone else committed the robbery.
However, none of this evidence “affirmatively demonstrates 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 short 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