FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 23, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court CARLOS GOMEZ,
Petitioner - Appellant,
v. No. 17-1427 (D.C. No. 1:15-CV-02582-PAB) RANDY LIND, Warden of the Colorado (D. Colo.) Territorial Correctional Facility; CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY ∗ _________________________________
Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges. _________________________________
Carlos Gomez, a Colorado state prisoner proceeding pro se, seeks a certificate of
appealability (COA) to appeal the denial of his habeas application. We deny his
application and dismiss this matter.
I. BACKGROUND
A jury convicted Gomez of first-degree murder, and he was sentenced to life in
prison without parole. His conviction was affirmed on direct appeal to the Colorado
Court of Appeals (CCA). Gomez then filed a motion for post-conviction relief in the trial
∗ This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. court, which was denied. The CCA affirmed the denial of his motion for post-conviction
relief.
The relevant facts are set forth in the CCA’s opinion in the direct appeal. The
victim was inside a bar when he observed Gomez, by video camera, peering into or
attempting to break into a car in the parking lot. The victim and several other patrons
went outside to confront Gomez, who sprayed them with pepper spray and ran away.
Several men, including the victim, gave chase, during which Gomez fired a handgun in
the general direction of his pursuers. The victim, who eventually caught up with Gomez,
was fatally shot during the ensuing struggle. Gomez’s “theory of defense was that the
victim’s death was a non-criminal accident, which had occurred while he was defending
himself from the victim and the other pursuers. [He] testified that he did not shoot the
victim; rather, the shooting occurred during the struggle for the gun.” R., Vol. 1 at 292.
On direct appeal, Gomez raised several errors, including: (1) the lack of evidence
to support the jury instructions on provocation and initial aggressor; (2) insufficient
evidence to support the conviction; and (3) prosecutorial misconduct. The CCA
considered the merits of these claims and denied them.
In his motion for post-conviction relief, Gomez raised several new arguments,
including numerous instances of ineffective assistance of counsel and constitutional error
concerning the jury instruction on intoxication. The trial court denied the motion, and the
CCA affirmed.
Gomez then filed his habeas application under 28 U.S.C. § 2554 in the United
States District Court of Colorado, in which he asserted three claims, each with several
2 subparts. The court denied the claims and also denied Gomez’s request for a certificate
of appealability (COA). He now seeks a COA to appeal the denial of his habeas
application. 1
II. STANDARD OF REVIEW
Gomez must obtain a COA before he can appeal the district court’s denial of his
§ 2254 application. See 28 U.S.C. § 2253(c)(1)(A) (requiring a state prisoner appealing
denial of a § 2254 application to obtain a COA). We will issue a COA “only if the
applicant has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2). To make that showing, a petitioner must demonstrate that reasonable
jurists could debate “whether the petition should have been resolved in a different manner
or that the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).
When a state court has adjudicated the merits of a claim, a federal court may grant
habeas relief only if the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” § 2254(d)(2). See also Davis v. McCollum, 798 F.3d 1317, 1319 (10th Cir.
2015). Factual findings of the state court are presumed correct unless the applicant rebuts
1 The operative pleading was Gomez’s amended application. As an initial matter, the district court dismissed several claims, which Gomez does not challenge. In its final order, the court denied the remaining claims on the merits. Gomez now seeks a COA on some, but not all the claims that were denied by the court. 3 that presumption by “clear and convincing evidence.” § 2254(e)(1). See also Welch v.
Workman, 639 F.3d 980, 991 (10th Cir. 2011).
“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. . . . The district court’s factual determinations are reviewed
for clear error.” Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (internal
quotation marks omitted). See also Gipson v. Jordan, 376 F.3d 1193, 1996 (10th Cir.
2004) (“[I]f the state court did not decide a claim on the merits, and the claim is not
otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1)
deference requirement does not apply.”). However, “state-court findings of fact that bear
upon the claim are entitled to a presumption of correctness rebuttable only by clear and
convincing evidence.” Littlejohn, 704 F.3d at 825 (internal quotation marks omitted).
See also Gipson v. Jordan, 376 F.3d 1193, 1996 (10th Cir. 2004) (“[I]f the state court did
not decide a claim on the merits, and the claim is not otherwise procedurally barred, we
address the issue de novo and the § 2254(d)(1) deference requirement does not apply.”).
III. ANALYSIS
A. Self-Defense Related Jury Instructions
Although Gomez’s theory of defense was accidental shooting, he nonetheless
convinced the trial court to give an instruction on self-defense. The court then granted
the prosecution’s request to further instruct the jury that Gomez could not use self-
defense to justify the shooting if he was the initial aggressor or provoked the victim into
attacking him. See Colo. Rev. Stat. § 18-1-704(3)(a), (b).
4 On direct appeal, Gomez argued that the trial court should not have given the
provocation and initial-aggressor instructions, because no evidence supported them. The
CCA agreed that the instructions should not have been given, but concluded that any
error was harmless because Gomez was not even entitled to a self-defense instruction. In
particular, the CCA relied on Gomez’s testimony that “‘I never did intentionally shoot the
gun during the tug of war and I never did have my finger on the trigger.’” R., Vol. 1
at 296.
The CCA held that under Colorado law, Gomez’s testimony was a “judicial
admission[] which wholly contradict[s] the tendered theory of defense instruction,”
id. at 295, and therefore he was not entitled to a self-defense instruction. See People v.
York, 897 P.2d 848, 850 (Colo. App. 1994) (defendant not entitled to jury instruction
embodying his theory of the case when he testifies under oath to facts that contradict that
theory); People v. Garcia, 826 P.2d 1259, 1263 (Colo. 1992) (same).
On habeas review, “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions. In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As such,
“[c]laims of erroneous jury instructions can justify setting aside a state conviction on
habeas review 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 [they are] otherwise
constitutionally objectionable as, for example, by transgressing the constitutionally
5 rooted presumption of innocence.” Dockins v. Hines, 374 F.3d 935, 938-39 (10th Cir.
2004) (internal quotation marks omitted).
The district court recognized that due process requires the prosecution to prove
every element of a charged offense beyond a reasonable doubt, however, that same due
process guarantee does not apply to affirmative defenses. Gilmore v. Taylor, 508 U.S.
333, 341 (1993). As such, “[t]he most that can be said of the instructions given at
[Gomez’s] trial is that they created a risk that the jury would [improperly consider] . . . an
affirmative defense . . . with respect to which . . . [a] due process guarantee does not
apply.” Id. at 343.
Gomez makes one additional argument. He contends that the district court erred
because the CCA’s decision regarding his due process claim was based on an
unreasonable determination of the facts—that he made a judicial admission that
contradicted a theory of self-defense. See § 2254(d)(2). According to Gomez, he
testified that “he did not pull the trigger during th[e] physical altercation.” Aplt.
Combined Opening Br. at 5. But this misstates his testimony; instead, Gomez testified
“‘I never did intentionally shoot the gun during the tug of war and I never did have my
finger on the trigger.’” R., Vol. 1 at 296. This is different than having a finger on the
trigger, ready to shoot. Therefore, Gomez has no colorable argument that the CCA’s
decision was based on an unreasonable determination of the facts.
Reasonable jurists could not debate whether Gomez’s due process claims should
have been resolved differently.
6 B. Ineffective Assistance of Counsel
A criminal defendant has a Sixth Amendment right to the effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Claims of ineffective
assistance are mixed questions of law and fact. Id. at 698. To establish such a claim, a
defendant must demonstrate both that counsel’s performance fell below an objective
standard of reasonableness and that counsel’s deficient performance resulted in prejudice
to his defense. Id. at 687. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689.
To overcome the strong presumption that counsel’s performance was reasonable,
the defendant must show that the alleged error was not sound strategy under the
circumstances. Id. And under the prejudice prong, the defendant must establish “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
Federal habeas courts owe deference to state-court decisions under § 2254(d)(1),
and where the state court has ruled on the merits of an ineffective-assistance claim, “[t]he
pivotal question is whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance fell
below Strickland’s standard.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
“Evaluating whether a rule application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations.” Id. (brackets and internal quotation marks omitted).
7 In any event, “it is not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been squarely established
by [the Supreme Court].” Id. (alteration and internal quotation marks omitted).
1. Failure to Present Mental-Health Defense
Gomez argued that his trial counsel was ineffective by failing to properly
investigate and present a mental-health defense—that his low IQ and other neurological
problems prevented him from forming the intent required for first-degree murder.
According to Gomez, if counsel had presented this defense, there was a reasonable
probability that the jury would have reached a different conclusion.
The CCA addressed this issue in Gomez’s appeal from the trial court’s denial of
his motion for post-conviction relief. It explained that because “his attorney retained a
psychologist and obtained her report . . . [t]he issue is . . . not the adequacy of the defense
investigation, but whether the strategic decision not to call the expert [psychologist]
constituted ineffective assistance of counsel.” R., Vol. 1 at 176 (ellipses and internal
quotation marks omitted). In this regard, the CCA found that Gomez’s “trial counsel
made a strategic decision to pursue the defense that the shooting was accidental, not
defenses based on mental slowness or insanity,” id. at 178, and concluded that Gomez
failed to overcome Strickland’s presumption that “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable,”
466 U.S. at 690.
The district court found the CCA’s decision on this claim was neither contrary to
nor an unreasonable application of Strickland. Nor was it based on an unreasonable
8 determination of the facts in light of the evidence presented in the state-court proceeding.
It therefore denied a COA on this claim. Reasonable jurists could not debate whether this
claim should have been resolved differently.
2. Failure to Present Evidence of Intoxication
Next, Gomez argues that trial counsel performed ineffectively by failing to present
expert testimony that Gomez’s intoxication rendered him incapable of forming the
necessary intent for first-degree murder. The CCA addressed this issue in Gomez’s
appeal from the trial court’s denial of post-conviction relief, and found no constitutional
error. First, it noted that “[t]rial counsel did establish for the jury that Gomez was
intoxicated, both through the introduction of medical records showing his acute
intoxication and through Gomez’s testimony.” R., Vol. 1, at 180 (brackets and internal
quotation marks omitted). Second, “[t]he failure to bolster . . . uncontroverted evidence
with an expert is not constitutionally deficient. Nor is it necessarily prejudicial, since the
jury is free to reject the testimony of an expert.” Id. (internal quotation marks omitted).
Last, the CCA concluded that trial counsel’s strategic choice not to pursue an intoxication
defense was not ineffective assistance of counsel under Strickland.
The district court held that the CCA’s resolution of the claim was not contrary to
Strickland. “The [CCA] again determined that trial counsel made an informed decision
to pursue a particular trial strategy and, in any event, evidence of [Gomez’s] intoxication
was presented to the jury through his own testimony and by admission of medical
records.” R., Vol. 2 at 44. Reasonable jurists could not debate whether this claim should
9 3. Failure to Object to Improper Argument
On direct appeal, Gomez alleged that multiple instances of prosecutorial
misconduct during closing argument denied him a fair trial. The CCA disagreed. In his
motion for post-conviction relief, he raised the same argument again, but failed to
identify any specific instance of improper argument. The trial court nonetheless
addressed the instances of alleged improper argument that Gomez had raised on direct
appeal, and determined that the failure to object did not prejudice the defense of the case.
On appeal from the denial of post-conviction relief, the CCA declined to consider the
argument because Gomez had not identified any specific instance of improper argument
in his motion in the trial court. See Hooker v. People, 477 P.2d 376, 377 (Colo. 1970)
(“A motion for review in the trial court as contemplated by the provisions of Crim. P.
35(b), is insufficient and may be summarily denied where, as here, it does not specify the
facts which constitute the basis for the unconstitutional charge.”).
The district court acknowledged that it is possible to obtain habeas relief on a
claim that counsel failed to object to prosecutorial misconduct. It found, however, that
Gomez had failed to “identify any particular instance of allegedly improper argument by
the prosecution,” and therefore, could not “meet his burden of showing that the [CCA’s]
conclusions with regard to the prosecutorial misconduct claim were somehow contrary to
or an unreasonable application of a clearly established rule of federal law.” R., Vol. 2
at 47.
In this court, Gomez again fails to identify any particular instance of prosecutorial
misconduct or develop any legal argument on the issue. We will not consider the issue
10 because “[w]e generally avoid entertaining arguments for reversing a district court’s
judgment that [are] not adequately developed by a petitioner in his opening brief.”
United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012) (internal quotation marks
omitted). See also Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e
routinely have declined to consider arguments that are . . . inadequately presented[] in an
appellant’s opening brief.”).
4. Failure to Call Rebuttal Witnesses
According to Gomez, trial counsel was also ineffective by failing to present
testimony from Gretchen Horst and Karlin Ray. He says Horst would have testified that
he was threatened by the bar patrons, and Ray would have testified that Gomez fired
several warning shots into the air. He argues that this would have bolstered his own
testimony and credibility. On appeal from the denial of post-conviction relief, the CCA
concluded that the proposed testimony “would have been cumulative to other evidence
admitted at trial and would have addressed uncontested issues in the trial.” R., Vol. 1 at
183. Further, the CCA concluded that Ray’s testimony would have contradicted
Gomez’s testimony that he fired shots into the ground. And “[t]o the extent Gomez
contends that their testimony supported a self-defense theory,” id., the CCA concluded
that trial counsel’s strategic choice to pursue an accidental-shooting defense was not
unreasonable. The district court found no unreasonable application of Strickland.
“Generally, counsel’s failure to call witnesses whose testimony would be
corroborative or cumulative of evidence already presented at trial is not deemed
constitutionally deficient.” Snow v. Sirmons, 474 F.3d 693, 729 (10th Cir. 2007).
11 Moreover, we have explained that counsel’s strategic choice to pursue an accidental-
shooting defense instead of self defense was a reasonable trial strategy and therefore not
ineffective assistance under Strickland. Reasonable jurists could not debate whether this
5. Jury Instruction on Intoxication
The issue underlying this ineffective-assistance claim is Gomez’s argument that
the intoxication instruction violated his constitutional rights because it failed to explain
that intoxication can negate the culpable mental state required for first-degree murder.
According to Gomez, trial counsel was ineffective when he failed to object to the
inadequate and misleading instruction, and appellate counsel was ineffective when he
failed to raise the issue on direct appeal. Gomez raised the issue in his motion for post-
conviction relief, but the trial court declined to address it because he had not raised it on
direct appeal. See Colo. R. Crim. P. 35(c)(3)(VII) (“The court shall deny any claim that
could have been presented in an appeal previously brought. . . .”). Like the trial court, the
CCA declined to address the merits and affirmed the summary denial of the claim.
Although the district court agreed that the claim was procedurally defaulted, the
court decided to review the claim on the merits anyway, because Gomez raised it as an
ineffective-assistance claim. The court considered the claim de novo and determined that
Gomez was not entitled to habeas relief. We exercise our independent judgment and
review the court’s conclusions of law de novo and its factual determinations for clear
error. Littlejohn, 704 F.3d at 825.
12 Generally, intoxication is not a defense to a crime under Colorado law.
Nonetheless, “evidence of intoxication of the defendant may be offered by the defendant
when it is relevant to negative the existence of a specific intent if such intent is an
element of the crime charged.” Colo. Rev. Stat. § 18-1-804(1). In People v. Miller,
113 P.3d 743, 751 (Colo. 2005), the court held that “when a voluntary intoxication
instruction is warranted, the trial court should affirmatively instruct the jury that ‘after
deliberation’ is part of the culpable mental state required by first-degree murder and may
be negated by evidence of voluntary intoxication.”
The intoxication instruction in Gomez’s case stated as follows:
You have heard evidence of defendant’s use of alchohol [sic]. You should consider this evidence in determining whether the prosecution has proven beyond a reasonable doubt that defendant had the required culpable mental state of Murder in the First Degree. With regard to Murder in the First Degree, unless the prosecution has proven beyond a reasonable doubt, taking into consideration any evidence of intoxication, that Defendant had the required culpable mental state for the offense, Murder in the First Degree, you must find him not guilty of the offense. Use of alcohol is not applicable to negate the culpable mental states of Murder in the Second Degree, Murder in the Second Degree with provocation, Reckless Manslaughter and Criminally Negligent Homicide. R., Vol. 2 at 51.
Further, the elements instruction told the jury that the mental state required for
first-degree murder was “after deliberation and with intent.” Id. at 52 (internal quotation
marks omitted). And yet another instruction defined “with intent” and “after
deliberation” as follows:
A person acts “intentionally” or “with intent” when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial whether or not the result actually occurred. 13 “After deliberation” is part of the specific intent of Murder in [t]he First Degree (after deliberation). After deliberation means not only intentionally, but, also, that the decision to commit the act has been made after the exercise of reflection and judgment concerning the act. An act committed after deliberation is never one which has been committed in a hasty or impulsive manner. Id.
The prosecution conceded that the intoxication instruction itself did not
specifically state that intoxication may “negate” the requisite mental state for first-degree
murder, and therefore was arguably ambiguous. However, it maintained there was no
constitutional error.
To demonstrate a constitutional error from a jury instruction in a state criminal
trial, “the defendant must show both that the instruction was ambiguous and that there
was a reasonable likelihood that the jury applied the instruction in a way that relieved the
State of its burden of proving every element of the crime beyond a reasonable doubt.”
Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotation marks
omitted). In making this determination, the jury instruction “may not be judged in
artificial isolation, but must be considered in the context of the instructions as a whole
and the trial record.” Id. at 191 (internal quotation marks omitted). The relevant inquiry
is “whether the ailing instruction by itself so infected the entire trial that the resulting
conviction violates due process.” Id. (internal quotation marks omitted).
The district court noted that “although [the intoxication instruction] did not state
expressly that voluntary intoxication would negate the mens rea required for first degree
murder, it brought to the jury’s attention that one reason [Gomez] might lack the requisite
14 intent is that he was intoxicated.” R., Vol. 2 at 54 (internal quotation marks and emphasis
omitted). More to the point, the court found that “[t]he [intoxication] instruction did not
alter the elements of the offense, nor did it shift the burden of proof onto [Gomez],”
because the instruction advised the jury that it must find Gomez not guilty “unless the
prosecution has proven beyond a reasonable doubt, taking into consideration any
evidence of intoxication, that [he] had the required culpable mental state for the offense.”
Id. “Considering the instructions and record as a whole, [Gomez] does not show there
was a reasonable likelihood that the jury applied [the intoxication instruction] in a way
that relieved the prosecution of its burden of proving every element of the crime beyond a
reasonable doubt,” id., and thus Gomez is not entitled to federal habeas corpus relief. We
have reviewed the claim de novo, and agree that Gomez failed to establish that the
instruction violated his constitutional rights.
Under a de novo review standard, we also agree with the district court that Gomez
is not entitled to federal habeas relief on his ineffective-assistance claim. Even if Gomez
could meet the first prong of Strickland, he still could not establish that counsel’s
deficient performance prejudiced his defense. Despite the instruction’s not specifically
stating that intoxication may “negate” the requisite mental state for first-degree murder,
nothing suggests that the jury applied the instruction in a way that relieved the
prosecution of proving every element of first-degree murder, including the element of
intent, beyond a reasonable doubt.
15 6. Failure to Obtain Gun Residue Testing
Gomez argues that trial counsel was ineffective for failing to consult with a
gunshot-residue expert. Because Gomez did not raise this issue in the Colorado courts,
the district court held it was anticipatorily defaulted. The district court rejected Gomez’s
contention that the default was excused due to the ineffectiveness of his post-conviction
counsel, because his claim that his trial counsel was ineffective lacked merit.
The district court’s order denying Gomez’s § 2254 application described this
claim in detail, including the contents of an expert report Gomez attached to his
application for habeas relief. Essentially, what Gomez hoped to establish was that
“analysis of the gunshot residue ‘may have shown that during the struggle between
[Gomez] and the victim, the victim’s finger could have been on the trigger instead of
[Gomez’s] or indeed there may have been an accidental discharge of the weapon.’”
Id. at 64 (brackets omitted). The expert further reported that the analysis “‘may be a
tipping point in the case in laying a foundation for whether or not the gunshot was
accidental or deliberate.’” Id. at 64-65. Importantly, however, the report blamed this
uncertainty on the police—not trial counsel: “‘[T]he Denver Police Department
substituted [its] judgement [sic] to not perform the . . . test on . . . the victim and
Mr. Gomez.’” Id. at 65 (brackets omitted). The court also noted that trial counsel
challenged the absence of such testing during his cross-examination of one of the
detectives, and argued that a more thorough or complete investigation could have better
shown what actually occurred, possibly raising a reasonable doubt whether Gomez had
intentionally shot the victim.
16 We agree with the district court that Gomez failed to show that trial counsel’s
performance fell below an objective standard of reasonableness. See Strickland, 466 U.S.
at 687. Counsel addressed the absence of gunshot-residue testing in his cross-
examination of the detective and in his closing argument. “For counsel’s performance to
be constitutionally ineffective, it must have been completely unreasonable, not merely
wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). We see nothing suggesting
that counsel’s performance was wrong, let alone completely unreasonable.
Nor can Gomez establish prejudice. To establish prejudice, Gomez must show
“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. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. “The
likelihood of a different result must be substantial, not just conceivable.” Richter,
562 U.S. at 112. The jury had the benefit of counsel’s cross-examination of the detective
and the closing argument and still rejected Gomez’s accidental-shooting defense.
Moreover, given the uncertain and theoretical nature of what testing might have
disclosed, we agree with the district court that Gomez has not shown a substantial
likelihood that the outcome would had been different had trial counsel consulted with an
expert. Gomez has failed to carry his burden under Strickland.
7. Cumulative Prejudice
In his motion for post-conviction relief, Gomez argued that the trial counsel’s
cumulative errors deprived him of the right to a fair trial. The CCA resolved the claim on
the merits and denied it, “because Gomez has not shown that trial counsel committed any
17 errors.” R., Vol. 1 at 184. The district court assumed that cumulative-error doctrine is
clearly established federal law under § 2254(1)(d), and determined that Gomez was not
entitled to habeas relief because it found no constitutional errors in the trial.
“In the federal habeas context, the only otherwise harmless errors that can be
aggregated are federal constitutional errors, and such errors will suffice to permit relief
under cumulative error doctrine only when the constitutional errors committed in the state
court trial so fatally infected the trial that they violated the trial’s fundamental fairness.”
Littlejohn, 704 F.3d at 868 (internal quotation marks omitted). Reasonable jurists could
not debate whether this claim should have been resolved differently.
IV. CONCLUSION
Gomez has not shown that reasonable jurists could debate the correctness of the
district court’s denial of his § 2254 habeas application. Thus, we deny his request for a
COA and dismiss this matter. We grant Gomez’s motion to proceed in forma pauperis on
appeal.
Entered for the Court
Gregory A. Phillips Circuit Judge