ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS

ROBERT E. BLACKBURN, District Judge.

This matter is before me on the [Amended] Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Amended Application") [#17-1],1 filed March 10, 2014, by Applicant Keith Brooks, through counsel. Respondents answered the Amended Application [#32], and Applicant filed a traverse [#39]. After reviewing the pertinent portions of the record in this case including the Amended Application, the Brief in Support [#11], the Answer, the Traverse, and the state court record, I conclude that the Application should be denied.

I. BACKGROUND

In 2007, Applicant was convicted of attempted first degree murder after deliberation of a peace officer, attempted second degree murder, first degree assault of a peace officer, felony menacing, and two counts of first degree burglary, in El Paso County District Court Case No. 05CR5346.2 He was adjudicated a habitual offender and sentenced to the Colorado Department of Corrections for a term of 144 years.

The Colorado Court of Appeals summarized the relevant facts on direct review of Applicant's convictions, in People v. Keith C. Brooks (Brooks I), No. 07CA0997 (Colo. App. Nov. 26, 2008):

[#2-2, at 5-6]. Acevedo was shot and killed following a high speed chase a few weeks after the burglary. [Id. at 7].

On direct appeal, the Colorado Court of Appeals affirmed Applicant's convictions, except for one of the first degree burglary convictions, which the state appellate court vacated because the two convictions and sentences for first degree burglary would constitute multiple punishments for the same criminal conduct. [Id. at 22-24, 28]. The Colorado Court of Appeals remanded the case for the trial court to issue a new mittimus to reflect only one first degree burglary conviction and concurrent sentences for attempted first degree murder and first degree assault. [Id. at 27-28].

Applicant was resentenced by the state district court on November 24, 2009 and did not appeal. [#17-1, at 3]. Thereafter, he filed a motion for state post conviction relief, pursuant to Colo. Crim. P. Rule 35(c), which the state district court denied without a hearing. The Colorado Court of Appeals affirmed the district court's order in People v. Keith Clayton Brooks (Brooks II), 10CA2272 (Colo. App. May 24, 2012) (unpublished). [#2-8]. The Colorado Supreme Court denied certiorari review on January 28, 2013. [# 2-10].

Mr. Brooks initiated this action on November 4, 2013. He asserts the following claims in his Amended Application:

Respondents concede that the Application is timely pursuant to the AEDPA one-year limitation period, 28 U.S.C. § 2244(d)(1). [#12, at 3-5]. Respondents further concede that Applicant exhausted state remedies for his claims. [Id. at 6]. I address below the merits of Applicant's claims under the deferential AEDPA standard of review.

II. LEGAL STANDARDS

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011). In particular, "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Id. at 784. Thus, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85. Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 784. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the court "must uphold the state court's summary decision unless [the court's] independent review of the record and pertinent federal law persuades [the court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.

The Richter presumption is also applicable when a state-court opinion addresses some but not all of those claims. Johnson v. Williams, 133 S.Ct. 1088, 1094-98 (2013). For purposes of § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant's claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not assume that any unaddressed federal claim simply was overlooked because a state court does not uniformly discuss separately every claim referenced by a defendant. Id.

The court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is whether the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1). See id. at 1018.

If a clearly established rule of federal law is implicated, the court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

House, 527 F.3d at 1018.

The court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,

Richter, 131 S.Ct. at 786 (internal quotation marks omitted). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 131 S.Ct. at 786 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").

Richter, 131 S.Ct. 786-87. See also White v. Woodall, 134 S.Ct. 1697 (2014) (citing and quoting Richter).

The court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

III. MERITS OF THE CLAIMS

A. Claim 1

For his first claim, Applicant asserts that he was denied a fair trial, in violation of the Sixth and Fourteenth Amendments, when the trial court admitted evidence of "booking photographs" and other burglaries committed by Applicant. [#17-1, at 23].

The Tenth Circuit recently summarized the case law governing § 2254 claims involving the admission of evidence that compromises the constitutional right to a fair trial:

Lott v. Trammell, 705 F.3d 1167, 1190-1191 (10th Cir. 2013) (parallel citations omitted). See also Lisenba v. California, 314 U.S. 219 (1941) ("In order to declare a denial of [due process] we must find that the absence of [fundamental] fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.")

"Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner . . . ." Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citing Donnelly v. DeChristophoro, 416 U.S. 637, 643 (1974)). In conducting this fundamental fairness examination, the federal habeas court does not "second guess a state court's application or interpretation of state law . . . unless such application or interpretation violates federal law." Bowser v. Boggs, 20 F.3d 1060, 1065 (10th Cir. 1994); see also Boyd v. Ward, 179 F.3d 904, 912 (10th Cir. 1999). A federal habeas court may consider defense counsel's actions, including a failure to object at trial. Le, 311 F.3d at 1013 (citing Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999)).

A constitutional error at a state criminal trial does not entitled a federal habeas petitioner to relief unless the error "`had a substantial and injurious effect or influence in determining the jury's verdict.'" Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993)).

1. References to booking photograph

Applicant asserts that his due process rights were violated when the trial court admitted evidence of his "booking photograph."

During trial, a police detective testified that he identified Applicant as a suspect during the criminal investigation based on a "booking photograph."3 Defense counsel objected and requested a mistrial.4 The trial court concluded that the single reference to the word "booking" was not serious enough to warrant a mistrial because no attention was drawn to the word.5 The trial court offered to give a curative instruction, but defense counsel declined because the bell had "rung," and he did not want to draw any further attention to the testimony.6

Later, another detective was asked how a witness had identified the suspect, and the detective responded: "[W]e had shown her the two booking photos that we had had of both of those individuals."7 Defense counsel again objected and requested a mistrial.8 The trial court denied the motion and offered a curative instruction, but defense counsel did not request that the instruction be given.9

On direct appeal, Applicant argued that the trial court erred in denying his requests for a mistrial. In Brooks I, the Colorado Court of Appeals rejected Applicant's claim on the following grounds:

[#2-2, at 20].

The state appellate court's factual findings that the two references to "booking photographs" were isolated and did not contain any mention of a particular instance of prior criminality are presumed correct and are supported by the state court record. Applicant does not point to any clear and convincing evidence to the contrary. Further, Applicant declined the trial court's offer to give a curative instruction. See Nichols v. Sullivan, 867 F.2d 1250, 1254 (10th Cir. 1989) (concluding that isolated and unsolicited reference to petitioner's prior convictions did not prejudice petitioner's right to fair trial where the judge offered to give a cautionary instruction to the jury, but petitioner declined the offer); see also United States v. Jones, 468 F.3d 704, 709 (10th Cir. 2006) (concluding that counsel's failure to request a curative instruction weighed against a finding that defendant was prejudiced); Donnelly, 416 U.S. at 644 (recognizing that a curative instruction can mitigate the effect of potentially prejudicial occurrences at trial).

In addition, Applicant conceded during opening statements and closing arguments that he participated in a (second degree) burglary with Acevedo.10 And, he told a detective at the time of his arrest that he and Acevedo were partners.11

I find and conclude that the state appellate court's resolution of Applicant's due process claim was consistent with Payne because the detectives' isolated references to the Applicant's "booking photograph" was not so prejudicial that it rendered the trial fundamentally unfair. See also Fry, 551 U.S. at 116, 121-22. Claim 1 will be dismissed.

2. References to prior burglaries

Applicant also contends that his due process rights were violated when the trial court admitted evidence of his other burglaries.

At trial, the following colloquy occurred between the prosecutor and an investigator regarding the investigator's participation in the police interview of Applicant:

Applicant objected to the detective's testimony and requested a mistrial, arguing that the prosecution had not disclosed any intent to introduce prior bad act evidence and that it was improper for the detective to refer to prior burglaries.13 The trial court denied the request for a mistrial, stating that it did not perceive the investigator's statement as a reference to prior criminality.14

On direct appeal. Applicant argued that the trial court erred in denying his request for a mistrial. In Brooks I, the Colorado Court of Appeals rules that the testimony was admissible under Colorado Rule of Evidence 404(b) as evidence of Applicant's intent to aid, abet, or encourage Acevedo in the commission of the crimes. [#2-2, at 21-22]. The state appellate court further determined:

[Id. at 22].

I find and conclude that the state appellate court's decision was consistent with the due process principles set forth in Payne. Even if the investigator's reference to "a few licks" lacked probative value, it was not prejudicial to Applicant because the remark suggested only that Applicant had committed prior burglaries. As discussed above, defense counsel conceded at trial that Applicant was guilty of (second degree) burglary. Moreover, even if the comment suggested to the jurors that Applicant knew, based on prior burglaries, that Acevedo was armed at the time of the charged offenses, other evidence also supported that inference, as discussed in Section III.B.2, infra. Claim 1 will be dismissed in its entirety.

B. Claim 2

For his second claim, Applicant asserts that his trial counsel, who labored under a conflict of interest, and direct appeal counsel, were constitutionally ineffective in failing to challenge the misleading jury instruction on complicity. [#17-1, at 23].

To prevail on an ineffective-assistance-of-counsel (IAC) claim, Applicant must show that: (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential. Id. at 689. Counsel's decisions are presumed to represent "sound trial strategy;" "[f]or 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) (internal quotations omitted). Under the AEDPA standard of review, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788.

Prejudice exists when there is a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different. Strickland, 466 U.S. at 693. The likelihood of a different result must be substantial, not just conceivable. Id. I need not address both prongs of the Strickland inquiry if Applicant's claim fails on one. Id. at 697.

The Strickland standard also applies to claims of ineffective assistance of appellate counsel. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003); Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988).

1. IAC claim based on conflict-of-interest

Applicant makes the following allegations in the Amended Application:

[#17-1, at 11-12].

Respondents did not perceive the conflict-of-interest allegations as a separate claim for relief that they were required to address in their Answer. [See generally #32]. Further, up receipt of Respondents' Answer, Applicant did not assert in the Reply that Respondents failed to acknowledge a conflict-of-interest claim, nor did Applicant continue to press the claim. [See generally #39]. Because Applicant is represented by counsel, his pleadings are not afforded a liberal construction. Notwithstanding, because Applicant exhausted the conflict-of-interest claim in the state courts, I will review the merits under the AEDPA deferential standard of review.

"[W]here counsel is burdened by an actual conflict [of interest], `[n]o further showing of prejudice is necessary.'" United States v. Flood, 713 F.3d 1281, 1286 (10th Cir. 2013) (quoting United States v. Bowie, 892 F.2d 1494, 1500 (10th Cir.1990) (citing Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980)). "However, `prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.'" Flood, 713 F.3d at 1285 (quoting Strickland, 466 U.S. at 692). "An actual conflict of interest exists only if counsel was forced to make choices advancing interests to the detriment of his client." Workman v. Mullin, 342 F.3d 1100, 1107 (10th Cir. 2003) (ellipsis and internal quotation marks omitted). In other words, there must be more than a potential conflict of interest or "a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002). Moreover, to prevail, the petitioner "has the burden of showing specific instances to support [his] claim of actual conflict of interest." Flood, 713 F.3d at 1287 (brackets and internal quotation marks omitted).

In Brooks II, the Colorado Court of Appeals rejected the Sixth Amendment conflict-of-interest claim on the following grounds:

[#2-8, at 7-9].

The state court record supports the Colorado Court of Appeals' factual finding that Applicant's trial attorney represented Acevedo for an offense that occurred before the criminal conduct charged in the case at hand,16 and Applicant does not point to any clear and convincing evidence to the contrary. Moreover, a careful review of the state court record demonstrates that the attorney's representation of Applicant did not advance any interests that were detrimental to the Applicant. Because Applicant's counsel did not labor under an actual conflict of interest, prejudice is not presumed. Applicant has not established that counsel's former and unrelated representation of Acevedo affected the outcome of his trial. I find and conclude that the state appellate court's resolution of Applicant's Sixth Amendment IAC conflict-of-interest claim was consistent with Supreme Court law. Accordingly, Applicant is not entitled to federal habeas relief.

2. IAC claims relating to complicity instruction

Applicant next contends that his trial counsel was ineffective in failing to challenge the jury instruction on complicity. He further maintains that appellate counsel should have raised the defective instruction as a point of error in Brooks I.

Under Colorado principles of complicity, a person is legally accountable for the actions of another if, "with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in . . . committing the offense." COLO. REV. STAT. (C.R.S.) § 18-1-603 (2014). There is a dual mental state requirement of the complicitor that must be proven before an accused may be legally accountable for the offense of another. "First, the complicitor must have the culpable mental state required for the underlying crime committed by the principal. Second, the complicitor must intend that his own conduct promote or facilitate the commission of the crime committed by the principal." Bogdanov v. People, 941 P.2d 247, 251 (Colo.), amended, 955 P.2d 997 (Colo. 1997), disapproved of on other grounds by Griego v. People, 19 P.3d 1 (Colo. 2001). Under a complicity theory, "it is not necessary that any single person commit all the elements of the underlying offense. It is only necessary that the acts of the complicitor and the other actor or actors, together, constitute all acts necessary to complete the underlying offense." People v. Elie, 148 P.3d 359, 365 (Colo. App. 2006).

At Applicant's trial, Instruction number 17 stated:

Instruction 17 was identical to the standard pattern instruction for complicity in Colorado. See CJI-Crim 6:04.

a. representation by trial counsel

Applicant contends that the pattern instruction runs afoul of Bogdanov and that trial counsel should have requested a jury instruction with "the correct intent mental state element." [#17-1, at 13]. Applicant further asserts that his trial attorney should have objected to the "all or part of language," because inclusion of that language in the complicity instruction is improper under circumstances where the alleged complicitor did not commit any elements of the violent crimes. [Id. at 14-15]. Applicant also argues that the standard complicity instruction did not clearly inform the jurors that they had to find Applicant complicit in each charged offense. [Id. at 12-13]. According to Applicant, there was no evidence "that [he] possess[ed] the intent to use the weapon or commit a violent crime," as is evident from the jury's findings on the verdict forms "acquit[ting] Mr. Brooks of possessing a weapon" during the offenses. [Id.]. Applicant argues that the jurors were confused and convicted him based solely on evidence that he knew Mr. Acevedo was armed. [Id.; see also #11, at 10].

At trial, Applicant's attorney objected to the complicity instruction and requested that the second element be modified to change the word "crime" to "crimes" so "the jury would be clear that this instruction applies to the individual charges."18 The trial court denied Applicant's requested modification, concluding that "the standard language is clear and accurate and allows the jury to make findings consistent with the elements of the crime charged."19 Later, in response to jury questions regarding the complicity instruction, the trial court further instructed the jury that "Complicity, as defined in Instruction 17, is a legal doctrine that could apply to all charges if the burden of proof is met pursuant to these instructions. You are reminded that the instructions must be considered as a whole."20

In Brooks II, the Colorado Court of Appeals resolved Applicant's IAC claim as follows:

[#2-8 at 9-11].

The state appellate court's determination that, under Bogdanov, the pattern complicity instruction was appropriate because "the prosecution alternatively charged [Applicant] with committing all the elements of each offense or committing part of the elements of each offense based on a theory that [Applicant] and [Acevedo] together committed the underlying crimes,"21 [#2-8, at 10], is binding on this federal habeas court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). Because the complicity instruction comported with state law, trial counsel's failure to challenge the instruction based on Bogdanov did not constitute deficient representation. See, e.g., Battle v. Workman, No. 09-5083, 353 F. App'x 105, 110 (10th Cir. Nov. 6, 2009) (unpublished) (rejecting petitioner's contention that trial counsel rendered deficient performance in failing to object to jury instruction where instruction was correct under state law at the time it was given).22

In addition, I find under the prejudice prong of the Strickland inquiry that Applicant has failed to demonstrate a reasonable probability that he would have been acquitted if trial counsel had requested further modification of the complicity instruction, or provided additional clarification of complicity liability for the jury during closing argument.

The Colorado Court of Appeals concluded in Brooks I that there was sufficient evidence at trial to substantiate each of Applicant's convictions under a complicity theory. [#2-2, at 9-16]. The state appellate court's factual findings are presumed correct in this habeas proceeding, and are supported by the state court record. The evidence of Applicant's guilt included (1) Applicant's statements to Detective Porter that: Applicant and Acevedo were partners and "had decided to do the burglary";23 Acevedo was carrying a 9mm pistol during the burglary; and, Applicant thought initially that Acevedo was the one who shot him when he was attempting to escape; (2) uniformed sheriff's deputies announced their presence when entering the residence and yelled so loud that a neighbor could hear the officers' voices from two houses away; (3) after a shot was fired from inside the house at Deputies Gaenzle and Smith (who were on the other side of the door in the garage), Applicant fled from inside the residence and escaped by jumping over a fence, at which time he was shot in the buttocks by Gaenzle; (4) forensic evidence established that the gun found on Acevedo when he was shot by the police a few weeks after the offenses occurred was the same gun used to shoot at the sheriff's deputies during the burglary; (5) witnesses Pfirman and Main testified that Acevedo always carried a gun and Acevedo told Pfirman that he had shot at Gaenzle; (6) shell casings, a bullet proof vest, a gun holster and knife were found in the motel room where both Applicant and Acevedo rendezvoused after the burglary.24

The evidence supported findings by the jury that Applicant participated in a burglary, knowing that Acevedo was armed; and, that Applicant and Acevedo deliberated and intended to use firearms to shoot and kill anyone, including a police officer, who might discover them burglarizing the house. The jury could also infer from the evidence that Applicant aided, abetted, assisted or encouraged the pre-planned use of force against a police officer. Further, Applicant admits that he burglarized the residence with Acevedo and there was evidence that Applicant was carrying a gun when he ran away from the house, including his own statement to Detective Porter, that he later modified.25 As the Colorado Court of Appeals recognized in Brooks I, the jury's specific finding that Applicant did not use, or possess and threaten the use of, a deadly weapon26 "does not eliminate the possibility that the jury may have concluded that [Applicant] possessed a deadly weapon but did not use it or threaten the use of it." [#2-2, at 10-16].

In sum, there was adequate evidence at trial to support each of the jury's verdicts under the Colorado criminal statutes. See §§ 18-2-101(1) (criminal attempt), 18-3-102(1)(a) (first degree murder), 18-3-107(1) (first degree murder of a peace officer), 18-3-103 (second degree murder), 18-3-202(1)(e) (first degree assault), 18-3-206(1) (menacing), 18-4-202(1) (first degree burglary), C.R.S. (2008). [See also #2-2, at 11-16]. Applicant fails to establish a reasonable likelihood that he would have been acquitted if counsel had requested additional modification of the complicity instruction, or further clarified the elements of complicity liability for the jury. I find and conclude that the state appellate court's decision rejecting Applicant's ineffective-assistance-of-trial-counsel claim was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." See Richter.

b. representation by appellate counsel

Applicant also claims that appellate counsel was ineffective for failing to challenge the complicity instruction as a point of error on direct appeal.

"[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)).

The Colorado Court of Appeals concluded the following as to Applicant's claim:

[#2-8, at 17-18].

I find and conclude that the Colorado Court of Appeals' determination of Applicant's ineffective-assistance-of-appellate-counsel claim comported with Smith and Strickland. A direct challenge to the complicity instruction on direct appeal was not an obvious winner. In Brooks II, the state appellate court determined, in the context of addressing Applicant's IAC claim, that the complicity instruction was correct under Colorado law, as expressed in Bogdanov.

Moreover, Applicant would not have prevailed on a claim challenging the complicity instruction as a violation of his due process rights,27 unless the error was prejudicial. See United States v. Marcus, 560 U.S. 258, 263-64 (2010) (recognizing that most errors in jury instructions are trial errors, not structural errors, requiring a showing of prejudice to warrant reversal); Neder v. United States, 527 U.S. 1, 11 (1999) (stating that harmless-error analysis applies to instructional errors so long as the error at issue does not categorically "`vitiat[e] all the jury's findings.'") (quoting Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)); see also Bogdanov, 941 P.2d at 254-55 (holding that standard complicity instruction "does not allow a defendant to be convicted of a crime under a complicity theory for which he did not have the requisite mental state" and, therefore, the instruction "does not create a structural defect."). Under Colorado law, a trial error is deemed harmless where "`viewing the evidence as a whole, the error did not substantially influence the verdict or impair the fairness of the trial.'" Liggett v. People, 135 P.3d 725, 733 (Colo. 2006) (quoting Medina v. People, 114 P.3d 845, 857 (Colo. 2005)); see also Colo. Crim. P. Rule 52(a) (directing courts to "disregard" any error or defect that "does not affect substantial rights."). If the jury instructions taken as a whole kept the prosecution to its proper burden of proof concerning all the elements of the offense, there is no reversible error. People v. Vanrees, 125 P.3d 403, 410 (Colo. 2005) (citing People v. Harlan, 8 P.3d 448, 472 (Colo. 2000)).

Here, the jury instructions, read together, informed the jury of each element of the charged offenses, as well as the elements necessary to convict Applicant on a complicity theory.28 Moreover, as discussed in the previous section, the evidence at trial supported each of Applicant's convictions. Applicant has thus failed to demonstrate that a constitutional challenge to the jury instructions on direct appeal would have succeeded. See Jackson v. Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998) ("Absent counsel's omission of an obvious winner on appeal, we are not inclined to second-guess appellate counsel's decision to eliminate arguable but weak claims," citing United States v. Cook, 45 F.3d 388, 394-95 (10th Cir. 1995)); see also Smith, 528 U.S. at 288 (citing Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) ("Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome")). As such, he cannot demonstrate that the state appellate court's resolution of his IAC claim was an unreasonable application of federal law.

C. Constitutional challenge to complicity instruction

Finally, the Brief in Support of the Amended Application suggests that Applicant is asserting a claim challenging the complicity instruction as a violation of his federal due process rights. [#11, at 12-15]. However, Applicant does not assert an independent claim challenging the complicity instruction in the Amended Application. Respondents argue that to the extent Applicant challenges the jury instruction as a trial error, he procedurally defaulted the claim in the state courts. The Colorado Court of Appeals declined to consider the claim on post-conviction review on the ground that it should have been raised on direct appeal. [Brooks II, #2-8, at 4-5]. See Colo. Crim. P. Rule 35(c)(3)(VII) ("The court shall deny any claim that could have been presented in an appeal previously brought," absent circumstances not applicable here).

A claim that has been procedurally defaulted in the state courts on an independent and adequate state procedural ground is precluded from federal habeas review, unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the federal violation, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Colo. R. Crim. P. 35(c)(3)(VII) is an adequate state procedural ground for rejecting a claim. See Burton v. Zavaras, No. 09-1094, 340 F. App'x 454-55 (10th Cir. Aug. 4, 2009) (unpublished) (applying Colorado's bar against successive claims); Williams v. Broaddus, No. 08-1254, 331 F. App'x 560, 563 (10th Cir. May 20, 2009) (unpublished).

Respondents contend that Applicant's ineffective-assistance-of-appellate-counsel claim cannot constitute "cause" to excuse his procedural default because the IAC claims lacks merit. [#32, at 33]. See Murray v. Carrier, 477 U.S. 478, 488 (1985) (recognizing that ineffective assistance of appellate counsel may constitute the "cause" necessary to excuse a procedural default . . . but "[s]o long as a defendant is represented by counsel whose performance is not constitutionally ineffective . . . we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.").

I agree with Respondents that Applicant's challenge to the constitutionality of the jury instruction is procedurally barred. Applicant does not offer any argument in the Reply to satisfy the cause and prejudice standard, nor does he make a colorable showing of factual innocence. Coleman, 501 U.S. at 750; see also Murray, 477 U.S. at 496 (recognizing that fundamental miscarriage of justice exists where a constitutional violation "has probably resulted in the conviction of one who is actually innocent"). Accordingly, I will not review the merits of Applicant's claim that the complicity instruction violated his federal due process rights.

IV. COA AND IFP

Under 28 U.S.C. § 2253(c)(2), I may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing is made only when a prisoner demonstrates that jurists of reason would find it debatable that a constitutional violation occurred, and that the district court erred in its resolution. Applicant has not made a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability is denied.

Under 28 U.S.C. § 1915(a)(3), I certify that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal, he also must pay the full appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.

V. ORDERS

THEREFORE, IT IS ORDERED as follows:

1. That the Amended Application for a Writ of Habeas Corpus 2254 [#17-1], filed March 10, 2014, by Applicant Keith Brooks, is DENIED;

2. That this case is DISMISSED WITH PREJUDICE;

3. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C. § 2253(c); and

4. That leave to proceed in forma pauperis on appeal is DENIED without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.