Sayed v. Jacques

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 16, 2025
• Docket: 24-1282
• Status: Unpublished

Opinion

Appellate Case: 24-1282 Document: 17-1 Date Filed: 01/16/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 16, 2025 _________________________________ Christopher M. Wolpert Clerk of Court HAZHAR A. SAYED,

Petitioner - Appellant,

v. No. 24-1282 (D.C. No. 1:23-CV-01880-RMR) TERRY JACQUES, (S.C.F.) Warden; (D. Colo.) THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, Circuit Judge, LUCERO, Senior Circuit Judge, and PHILLIPS, Circuit Judge. _________________________________

Hazhar A. Sayed, proceeding pro se,1 seeks a certificate of appealability (COA) to

appeal from the district court’s denial of his 28 U.S.C. § 2254 petition. See 28 U.S.C.

§ 2253(c)(1)(A). We deny a COA and dismiss this matter.

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Sayed appears pro se, we liberally construe his filings. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Appellate Case: 24-1282 Document: 17-1 Date Filed: 01/16/2025 Page: 2

I. Background

While serving a prison sentence in Colorado, Mr. Sayed was charged in state court

with three counts of assault on a state corrections officer. The case went to trial, and the

jury convicted him on two of the three counts. He appealed to the Colorado Court of

Appeals (CCA), which affirmed his conviction. Mr. Sayed then sought postconviction

relief in state court, claiming he received ineffective assistance of trial counsel. The trial

court denied relief without a hearing, and the CCA affirmed.

In his § 2254 habeas application, Mr. Sayed asserted a Fifth Amendment claim

based on the trial court’s admission of evidence of Mr. Sayed’s silence during the prison

investigation and a due process claim based on the trial court’s failure to order a

competency evaluation. He also asserted the same ineffective assistance claims he

pursued in his motion for postconviction relief—namely, that his trial counsel failed to:

(1) interview potential witnesses; (2) consult an expert witness concerning the possibility

the video of the incident had been altered; or (3) request a self-defense instruction. The

district court denied the application in a written order and denied a certificate of

appealability. Mr. Sayed then filed the instant application for a COA.

II. Discussion

To receive a COA, Mr. Sayed must make “a substantial showing of the denial of a

constitutional right,” § 2253(c)(2), and must show “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,” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). When the

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district court has denied relief on the merits, we must determine as part of our COA

analysis whether reasonable jurists could debate the court’s decision given the deference

owed to the state-court decision under the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA). See Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

A. Violation of Fifth Amendment Right to Remain Silent

Mr. Sayed claims the trial court violated his Fifth Amendment rights by allowing a

prison investigator to testify about Mr. Sayed’s post-arrest silence. The CCA rejected

this claim on direct appeal, holding that any error was harmless beyond a reasonable

doubt because it did not contribute to the verdict. The district court held the CCA’s

harmlessness determination was not unreasonable. See Fry v. Pliler, 551 U.S. 112, 119

(2007) (“[W]hen a state court determines that a constitutional violation is harmless, a

federal court may not award habeas relief . . . unless the harmlessness determination itself

was unreasonable.”) (emphasis omitted)).

Mr. Sayed argues the trial court erred by failing to determine whether a valid

evidentiary purpose existed to justify the government’s use of his post-arrest silence. But

on habeas review, our harmlessness standard assumes error and only asks whether that

error “had substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (internal quotation marks omitted).

As to the issue of harmlessness, Mr. Sayed makes no argument, and it is therefore

waived. See Therrien v. Target Corp., 617 F.3d 1242, 1252-53 (10th Cir. 2010) (holding

failure to raise an argument in the opening brief waives that argument). Accordingly, we

deny a COA as to this claim.

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B. Due Process Violation Based on Trial Court’s Assessment of Competency

Mr. Sayed claims the trial court violated his due process rights in concluding a

competency evaluation was not warranted. The CCA rejected this claim, holding the trial

court did not abuse its discretion. The CCA found the trial court’s assessment of

Mr. Sayed’s competency was supported by the following facts: (1) Mr. Sayed instructed

his counsel not to pursue an affirmative defense because he was adamant he did not

assault the prison officer, thus indicating he had the ability to consult with his lawyer

with a reasonable degree of rational understanding; (2) his own counsel stated that he was

well spoken and presented well; and (3) the trial court stated that based on its own

observation of Mr. Sayed and his pro se pleadings, there was nothing suggesting he was

incompetent to proceed.

The district court held the CCA did not unreasonably apply clearly established

federal law as determined by the Supreme Court, see § 2254(d)(1), nor did Mr. Sayed

present evidence to rebut the presumption that the CCA’s factual findings were correct,

see § 2254(e)(1). Mr. Sayed argues the trial court “disregard[ed]” evidence of his

incompetency, Opening Br. & Appl. for COA at 14, but he identifies no facts that the trial

court failed to consider. Instead, it appears he merely disagrees with the way the trial

court weighed the evidence. See, e.g., id. (arguing the trial court violated his due process

rights “[b]ecause the weight of the evidence . . . demonstrated that sufficient doubt

existed as to Mr. Sayed’s competency”). In short, Mr. Sayed has failed to present any

evidence to rebut the presumption that the CCA’s factual findings were correct.

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Accordingly, we hold that no reasonable jurist could debate the district court’s rejection

of this claim, and we therefore deny a COA as to this claim.

C. Ineffective Assistance of Counsel

We review Mr. Sayed’s ineffective assistance claims under Strickland v.

Washington, 466 U.S. 668 (1984), which requires a defendant to show that (1) counsel’s

performance “fell below an objective standard of reasonableness,” id. at 688, and (2) the

deficient performance prejudiced the defense, id. at 692. The deficient performance

prong requires a defendant to show “that counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687.

The prejudice prong requires a showing 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.

We must review the CCA’s resolution of Mr. Sayed’s ineffective assistance claims

“through AEDPA’s deferential lens.” Frost v. Pryor, 749 F.3d 1212, 1225 (10th Cir.

2014); see also Lockett v. Trammell, 711 F.3d 1218, 1248 (10th Cir. 2013) (“[W]e review

[the state court’s] analysis [of ineffective assistance of counsel claims] under the

considerable deference required by Strickland itself—in addition to AEDPA deference.”).

1. Failure to Interview Witnesses

Mr. Sayed’s first ineffective assistance claim was based on his trial counsel’s

failure to interview every single inmate in Mr. Sayed’s cell block. The CCA rejected the

claim because “the record clearly establishes that counsel’s decision was a strategic one

aimed at maximizing her credibility with the jury.” R vol.1 at 250. As her counsel

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explained, “the mere act of presenting [inmate testimony] could [have] undermined her

ability to persuade the jury.” Id. Mr. Sayed fails to acknowledge the CCA’s finding that

his counsel made a strategic choice. He insists that his counsel had a duty to investigate.

But as the district court correctly observed, the question under Strickland is not whether

counsel could have done more, but whether the decision not to do more was

“‘[objectively reasonable] under all the circumstances, applying a heavy measure of

deference to counsel’s judgments.’” R vol. 1 at 359 (quoting Turrentine v. Mullin,

390 F.3d 1181, 1209 (10th Cir. 2004)). Mr. Sayed has not established that reasonable

jurists could debate the district court’s rejection of this claim. Accordingly, we deny a

COA.

2. Failure to Retain Expert

Mr. Sayed next asserts that his counsel was ineffective in failing to retain an

expert to determine whether the video evidence of the incident had been altered. The

CCA rejected this claim because his counsel consulted an individual she believed to be

knowledgeable concerning Mr. Sayed’s theory, and that individual told her there were no

signs the video had been tampered with. The CCA therefore held counsel’s decision not

to pursue Mr. Sayed’s theory was a strategic one based on a reasonable exercise of

professional judgment. R. vol. 1 at 251-52 (“[C]ounsel’s decision to cut short her pursuit

of [Mr.] Sayed’s tampering theory was based on her reasonable professional judgment.”).

The district court held the CCA’s resolution of the claim was not an unreasonable

determination of the facts under § 2254(d)(2), and that Mr. Sayed had not produced any

evidence to rebut the “‘strong presumption of reasonableness’” that attaches to strategic

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decisions, “‘including whether to hire an expert.’” R. vol. 1 at 361 (quoting Dunn v.

Reeves, 594 U.S. 731, 739 (2021)).

Mr. Sayed disagrees with the CCA’s findings and argues his counsel’s

investigation was not sufficiently thorough. But the CCA’s decision is consistent with

Strickland, in which the Supreme Court held that “strategic choices made after less than

complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” 466 U.S. at 690-91. We hold that

reasonable jurists could not debate whether this claim should have been resolved in a

different manner. We therefore deny a COA as to this claim.

3. Failure to Request Self-Defense Instruction

The CCA denied Mr. Sayed’s last ineffective assistance claim on state-law

grounds. Under Colorado law, “a defendant is not entitled to an affirmative defense

instruction if he denies committing the charged crime.” People v. Snider, 491 P.3d 423,

429 (Colo. Ct. App. 2021). The CCA held that even if the court assumed deficient

performance, Mr. Sayed could not prove prejudice under Strickland because he denied

having committed the charged crime and therefore would not have been entitled to a

self-defense instruction.

“[I]t 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). Accordingly, the district

court denied this claim “[b]ecause this Court is bound to accept the CCA’s conclusion

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regarding its interpretation of Colorado criminal law.” R. vol. 1 at 364. In his

application for a COA, Mr. Sayed contends that Colorado state law does not in fact

require a defendant to deny having committed the charged crime in order to be entitled to

a self-defense instruction. That is precisely the type of state-law question a federal

habeas court may not examine. No reasonable jurist could debate the district court’s

analysis of this claim, and we therefore deny a COA.

D. Right to Control Defense

Finally, Mr. Sayed’s habeas application contained what the district court

characterized as “stray allegations,” R. vol. 1 at 362 n.2, suggesting that his counsel’s

failure to request a self-defense instruction “intruded” on his right to control his own

defense within the meaning of McCoy v. Louisiana, 584 U.S. 414 (2018). Liberally

construing Mr. Sayed’s “stray allegations” as a separate claim, the district court rejected

it because Mr. Sayed failed to properly exhaust the claim in state court.

See § 2254(b)(1)(A). We hold that no reasonable jurist would find it debatable whether

the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484.

In his application for a COA, Mr. Sayed makes an argument he did not assert

before the district court. He contends that the district court should have construed his

McCoy claim as one invoking Martinez v. Ryan, 566 U.S. 1 (2012), in which the Supreme

Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings

may establish cause for a prisoner’s procedural default of a claim of ineffective assistance

of counsel.” Id. at 9. Mr. Sayed did not make this argument before the district court. As

a general rule, we will not consider issues raised for the first time on appeal, and

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Mr. Sayed offers us no reason to make an exception in this instance. See Dockins,

374 F.3d at 940 (court of appeals may decline to consider argument in application for

COA not presented first to the district court).

III. Conclusion

We deny Mr. Sayed’s request for a COA and dismiss this matter.2 We grant his

motion for leave to proceed in forma pauperis.

Entered for the Court

Gregory A. Phillips Circuit Judge

2 Mr. Sayed also broadly asserts the district court “deprive[d] [him] of his right to receive liberal construction” of his pro se pleadings. Opening Br. & Appl. for COA at 6. But the rule on which Mr. Sayed relies does not confer any rights, nor does it elevate losing arguments into winning ones. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (pro se pleadings are to be construed liberally, but pro se status does not relieve litigant “of the burden of alleging sufficient facts on which a recognized legal claim could be based”). At any rate, we are satisfied that in reviewing Mr. Sayed’s habeas claims, the district court liberally construed his pleadings.