Cobbin v. Zavares

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 14, 1999
• Docket: 99-1042
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 14 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

KENNETH R. COBBIN,

Petitioner-Appellant,

v. No. 99-1042 (D.C. No. 97-B-2258) ARISTEDES W. ZAVARES, (D. Colo.) MARK E. MCKINNA, Superintendent (32 F. Supp.2d 1225) and THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents-Appellees.

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Kenneth R. Cobbin filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 seeking to overturn his conviction for aggravated robbery on the

basis that his trial counsel provided constitutionally ineffective assistance, see

Strickland v. Washington , 466 U.S. 668, 687 (1984). Adopting the

recommendation of the magistrate judge, which thoroughly discussed the factual

and procedural history of Cobbin’s claim, the district court denied the petition.

See Cobbin v. Zavares , 32 F. Supp.2d 1225 (D. Colo. 1999). Cobbin timely filed

a notice of appeal, and the matter is now before us on Cobbin’s application for a

certificate of appealability.

To be entitled to a certificate of appealability, Cobbin must make a

substantial showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c); Ross v. Ward , 165 F.3d 793, 797 (10th Cir.), cert. denied, 1999 WL

496228 (U.S. Oct. 4, 1999) (No. 99-5138). Cobbin contends that he is entitled to

a certificate on the basis that his trial counsel was ineffective for failing to

prevent the introduction of evidence of his past criminality, which he contends

allowed the jury to convict him based on previous acts rather than on evidence he

committed the crime charged. Specifically, he contends that his counsel should

have objected to the admission of “mug shots” taken of him in 1987 and 1985 and

-2- to testimony that he was a suspect with regard to a different robbery. The district

court held that because the 1987 mug shots were admissible and Cobbin’s counsel

had properly objected to and had stricken the testimony regarding the other

robbery, his performance in these respects was not deficient. See Cobbin , 32 F.

Supp.2d at 1233-34. The district court also held that even assuming that

counsel’s failure to object to the introduction of the 1985 mug shots was deficient

performance, Cobbin had not shown the requisite prejudice to entitle him to

relief. See id. at 1234.

We generally agree with the district court’s thorough analysis of Cobbin’s

arguments and conclude that additional comment is warranted only regarding

counsel’s failure to the object to the admission of the 1985 mug shots. As typical

mug shots, these photos showed both a front and profile view of Cobbin. Counsel

recognized the negative inferences that could be drawn from these photos, see

People v. Bugarin , 507 P.2d 875, 877 (Colo. 1973), and he sought successfully to

have the police identification numbers deleted from them, see People v. Pickett ,

571 P.2d 1078, 1083 (Colo. 1977), and to prohibit witnesses generally from

referring to the photos as mug shots. Nonetheless, we agree with the district

court that the trial court probably would have sustained an objection to their

admission because of their limited, if any, probative value. See Bugarin , 507 P.2d

at 877; People v. Bozeman , 624 P.2d 916, 920 (Colo. Ct. App. 1980).

-3- However, the critical issue at trial was the robbery victim’s identification

of Cobbin as the robber, and the victim had failed to identify Cobbin from a book

of photos that included the 1985 mug shots. The 1985 mug shots of Cobbin did

not differ significantly from the photos taken in 1987, and defense counsel used

the similarity in the two sets of photos to support Cobbin’s defense that the

victim’s subsequent identification of Cobbin as the robber from the photo array

containing the 1987 photos was due to suggestion by the police or subconscious

recollection of the 1985 photos. As a result, admission of the 1985 mug shots

bolstered Cobbin’s defense, and this must be considered in assessing the prejudice

resulting from the inference of prior criminal history that could be drawn from the

photos. See United States v. Logan , 861 F.2d 859, 865 (5th Cir. 1988) (holding

that both positive and negative effects of counsel error must be considered in

determining prejudice). Thus, exclusion of the mug shots would have eliminated

the inference of prior criminal history, but, at the same time, weakened Cobbin’s

defense. Considering both the positive and negative effects of admission of the

mug shots in light of the other evidence at trial, including the victim’s steadfast

identification of Cobbin as the robber, we agree with the district court that

Cobbin has not demonstrated that counsel’s performance, assuming it was

deficient, was sufficiently prejudicial; i.e., our confidence in the outcome of the

trial has not been undermined. See Strickland , 466 U.S. at 694.

-4- Thus, for substantially the reasons stated by the district court in rejecting

Cobbin’s claim, we conclude that Cobbin has not made a substantial showing of

the denial a constitutional right. His application for a certificate of appealability

is DENIED, all outstanding motions are DENIED, and the appeal is DISMISSED.

Entered for the Court

Robert H. Henry Circuit Judge

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