FILED
                                               United States Court of Appeals
                   UNITED STATES COURT OF APPEALS      Tenth Circuit

                                TENTH CIRCUIT                     February 15, 2011
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
 STEPHEN MARTINEZ,

               Petitioner-Appellant,

 v.                                                     No. 10-1390
                                           (D.C. No. 1:07-CV-01305-CMA-KMT)
 STEVE HARTLEY, Warden, L.C.F.;                          (D. Colo.)
 THE ATTORNEY GENERAL OF
 THE STATE OF COLORADO,

               Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Stephen Martinez, a Colorado state prisoner proceeding pro se, 1 seeks a

certificate of appealability (“COA”) to challenge the district court’s denial of his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Mr.

      *
              This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Martinez is proceeding pro se, we construe his filings
liberally. See, e.g., Garza v. Davis, 

, 1201 n.2 (10th Cir. 2010).
Martinez also moves for leave to proceed in forma pauperis on appeal.

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr.

Martinez’s application for a COA and dismiss his appeal. We also deny Mr.

Martinez’s motion to proceed in forma pauperis.

                                 BACKGROUND

      A Colorado jury convicted Mr. Martinez of first-degree murder for

knowingly causing the death of a child under the age of twelve, and being in a

position of trust with respect to the victim, under Colo. Rev. Stat. § 18-6-

401(7)(c). 2 On direct appeal, the Colorado Court of Appeals reversed Mr.

Martinez’s conviction because it found that the trial court allowed into evidence

unfairly prejudicial expert testimony about accident scenarios that cause subdural

hematomas in children. See People v. Martinez, 

, 1051 (Colo. App.

2001). The Colorado Court of Appeals did not reach Mr. Martinez’s argument

that his due process rights were violated because the police and the prosecution

adopted inconsistent positions. See 

Supreme Court reversed the



      2
             As the magistrate judge noted, “[a]t various times in the state court
record and their briefs . . . both Petitioner and Respondents assert that Petitioner
was convicted under Colo. Rev. Stat. § 18-3-102(1)(f) (2000) rather than
§ 18-6-401(7)(c).” Martinez v. Hartley, No. 1:07-CV-01305-CMA-KMT, 

, at *1 n.1 (D. Colo. July 14, 2009). “[Section] 18-6-401(7)(c)
incorporates § 18-3-10[2](1)(f) to define the crime of ‘knowingly caus[ing] the
death of a child who has not yet attained twelve years of age and the person
committing the offense is one in a position of trust with respect to the child’ as
first-degree murder.” 

in original).

                                         -2-
judgment of the Colorado Court of Appeals and reinstated Mr. Martinez’s

conviction. See People v. Martinez, 

, 326 (Colo. 2003). On remand,

the Colorado Court of Appeals rejected Mr. Martinez’s inconsistent-positions

argument, and affirmed his conviction. See R., Vol. 1, at 273–76 (People v.

Martinez, No. 00CA0312 (Colo. App. Nov. 13, 2003)).

      Mr. Martinez then filed a motion for post-conviction relief pursuant to

Colorado Rule of Criminal Procedure 35, asserting, inter alia, that his trial

counsel rendered ineffective assistance by failing to perform an adequate

investigation, and that the Colorado legislature unconstitutionally removed the

finding of sentence-enhancing facts from the jury. The state trial court denied

relief. See R., Vol. 2, Order Denying Def.’s Mot. for Post-Conviction Relief

Pursuant to Crim. P. 35(c) and Denying Def.’s Mot. for Appointment of Counsel,

at 2 (dated May 12, 2005) [hereinafter “Post-Conviction Order”]. Thereafter, the

Colorado Court of Appeals dismissed Mr. Martinez’s appeal as untimely filed.

See R., Vol. 2, People v. Martinez, No. 06CA1215 (Colo. App. Mar. 21, 2007).

      Following his failure to obtain relief in the state courts, Mr. Martinez filed

a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United

States District Court for the District of Colorado. The district court dismissed

Mr. Martinez’s habeas petition and denied a COA. See Martinez v. Hartley, No.

1:07-CV-01305-CMA-KMT, 

(D. Colo. Aug. 10, 2010).

      Mr. Martinez now seeks a COA from this court, arguing that: (1) his trial

                                         -3-
was rendered fundamentally unfair by the admission of expert testimony about the

amount of force necessary to cause a subdural hematoma in a child; (2) the police

and the prosecution impermissibly adopted inconsistent positions—viz., the police

promised Mr. Martinez that he would only be charged with accidentally causing

the child’s death, but the prosecution did not adhere to this promise when it

charged him with first-degree murder; (3) his trial counsel rendered ineffective

assistance by failing to adequately investigate evidence that modest amounts of

force could cause the child’s death; and (4) the state legislature unconstitutionally

removed the finding of sentence-enhancing facts from the jury.

                                   DISCUSSION

I. Standard of Review

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

corpus petition. See 28 U.S.C. § 2253(c); Allen v. Zavaras, 

, 1199

(10th Cir. 2009) (citing Miller-El v. Cockrell, 

, 336 (2003)). “We

will issue a COA ‘only if the applicant has made a substantial showing of the

denial of a constitutional right.’” 

(quoting 28 U.S.C.

§ 2253(c)(2)). “To make such a showing, an applicant 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.’” 

v. McDaniel, 

, 484 (2000)) (internal quotation marks omitted).

                                         -4-
        In determining whether to grant a COA, we do not engage in a “full

consideration of the factual or legal bases adduced in support of the claims,”

; instead, we undertake “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim, 

Although an applicant need not demonstrate that his appeal will succeed, he

“must prove ‘something more than the absence of frivolity’ or the existence of

mere ‘good faith’” to obtain a COA. 

v. Estelle, 

, 893 (1983), superseded on other grounds by statute, 28 U.S.C. § 2253(c)(2)).

        Where a “COA application rests on claims of ineffective assistance of

counsel, in order to determine if [an applicant] can make a substantial showing of

the denial of a constitutional right we must undertake a preliminary analysis . . .

in light of the two-part test for ineffective assistance” articulated in Strickland v.

Washington, 

(1984). United States v. Harris, 368 F. App’x 866,

868 (10th Cir. 2010), cert. dismissed, 

(2010). “Under Strickland,

[Mr. Martinez] must show that counsel’s performance fell below an objective

standard of reasonableness as measured against prevailing professional norms,

and he must show that there is a reasonable probability that the outcome would

have been different but for counsel’s inadequate performance.” Sandoval v.

Ulibarri, 

, 909 (10th Cir. 2008) (citing 

,

694).

        Because the Colorado state courts addressed the merits of Mr. Martinez’s

                                          -5-
claims, “AEDPA’s deferential treatment of state court decisions must be

incorporated into our consideration of [his] request for [a] COA.” 3 Dockins v.

Hines, 

, 938 (10th Cir. 2004). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), we may grant an application for a writ of

habeas corpus on behalf of a person in state custody whose claims were

adjudicated on the merits in state court only if the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

      A state court decision is contrary to established federal law if it “arrives at

a conclusion opposite to that reached by [the Supreme Court] on a question of


      3
              We review “the last reasoned state court decision” on a claim. Klein
v. Neal, 

, 1399 n.5 (10th Cir. 1995) (citing Ylst v. Nunnemaker, 

(1991)). “[I]f the last state court to render a judgment on a claim did so
in a cursory or unexplained manner . . . [we] apply a ‘look through’ rule, which
essentially looks past the last state court decision to the last reasoned state court
decision.” 

look to the Colorado Supreme Court’s decision on Mr. Martinez’s
claim that his trial was rendered fundamentally unfair by the admission of expert
testimony about the amount of force necessary to cause a subdural hematoma in a
child. We look to the decision of the Colorado Court of Appeals following
remand on Mr. Martinez’s claim that the government breached its promise by
charging him with first-degree murder. Finally, we look to the state trial court’s
decision denying the motion for post-conviction relief on Mr. Martinez’s claims
that his trial counsel rendered ineffective assistance, and that the state legislature
unconstitutionally removed the finding of sentence-enhancing facts from the jury.

                                         -6-
law,” or “confronts facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a[n opposite] result.” Bledsoe v. Bruce,

, 1231 (10th Cir. 2009) (alterations in original) (quoting Williams v.

Taylor, 

, 405 (2000)) (internal quotation marks omitted), cert.

denied, 

(2009). A state court decision unreasonably applies

federal law if it “identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the particular state

prisoner’s case,” or “either unreasonably extends a legal principle from [Supreme

Court] precedent to a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it should apply.” 

original) (quoting 

) (internal quotation

marks omitted). “The state court’s decision must be ‘more than incorrect or

erroneous’; it must be ‘objectively unreasonable.’” 

v. Smith,

, 520–21 (2003)).

II. Admission of Expert Testimony

      Mr. Martinez argues that his trial was rendered fundamentally unfair by the

admission of expert testimony about the amount of force necessary to cause a

subdural hematoma in a child. Mr. Martinez avers that but for the admission of

this testimony, he would not have been convicted of first-degree murder because

“it was still inferred at trial that there was a great amount of force necessary to

cause such injuries. . . . It is now accepted that a minimal amount of force is

                                          -7-
necessary to cause such injuries in a child.” Aplt. Br. & App. at 4(a)–4(b).

      The Colorado Supreme Court found that the trial court did not abuse its

discretion in admitting this expert testimony because “the testimony of accident

scenarios is admissible . . . as the basis of Dr. Rosquist’s opinion that a subdural

hematoma results from massive, violent force.” 

.

      “Federal habeas review is not available to correct state law evidentiary

errors; rather it is limited to violations of constitutional rights.” Smallwood v.

Gibson, 

, 1275 (10th Cir. 1999) (citing Estelle v. McGuire, 

, 67–68 (1991)). “We may not provide habeas corpus relief on the basis of

state court evidentiary rulings unless they rendered the trial so fundamentally

unfair that a denial of constitutional rights results.” Duckett v. Mullin, 

, 999 (10th Cir. 2002) (internal quotation marks omitted).

      Mr. Martinez cites no authority prohibiting the admission of the expert

testimony at issue. That is a serious problem for him. Panels of this court have

repeatedly indicated that, where a trial court has properly admitted evidence,

there ordinarily will be no basis to conclude that the evidence rendered the trial

fundamentally unfair. See Hicks v. Jones, 350 F. App’x 199, 204 (10th Cir. 2009)

(“Hicks has failed to establish that the evidentiary rulings rendered his trial

fundamentally unfair. The taped conversations were relevant and not unduly

prejudicial; their admission therefore did not violate due process.”); Torres v.

Roberts, 253 F. App’x 783, 789 (10th Cir. 2007) (“The Kansas Supreme Court

                                          -8-
determined Exhibits 22 and 31 were probative and rejected Torres’s claim that

they were cumulative and overly gruesome. In light of the probative value of the

photographs, we conclude the admission of these exhibits was not fundamentally

unfair.” (citation omitted)); Sauceda v. Mondragon, 

, 

, at *3 (10th Cir. 1992) (unpublished table decision) (“Since the district

court did not err in admitting relevant, non-inflammatory photographic evidence,

we must conclude that the Appellant was not denied a fundamentally fair trial.”).

       We perceive no circumstances suggesting that a different outcome is

appropriate here. Consequently, we conclude that reasonable jurists could not

debate the district court’s determination that the Colorado Supreme Court’s

decision was neither contrary to, nor an unreasonable application of, clearly

established federal law. Accordingly, Mr. Martinez is not entitled to a COA on

his first claim.

III. Government Adopted Inconsistent Positions and Breached Its Promise

       Mr. Martinez next argues that “the police promised [him] that if he showed

them how he allegedly shook the infant, the prosecution would present the case as

an accident rather than a murder,” but the prosecution did not adhere to that

promise when it charged him with first-degree murder. Aplt. Br. & App. at 4(c).

Mr. Martinez maintains that Santobello v. New York, 

(1971), which

held that one prosecutor’s plea-bargain promise binds other prosecutors in the

same office, should have been extended to the circumstances of his case to

                                        -9-
compel the prosecutor to adhere to the promise made by the police. See Aplt. Br.

& App. at 4(c)–4(d).

      The Colorado Court of Appeals found that “[d]efendant’s contention that

the detective and the prosecution must adopt consistent positions or theories, or

that the failure to do so violates his right to due process of law, has no support in

our jurisprudence. . . . Moreover, the detective’s position during the taped

interview was not necessarily inconsistent with the prosecution’s theory of the

case at trial.” R., Vol. 1, at 275–76.

      Mr. Martinez fails to demonstrate that the state court unreasonably refused

to extend the rule of Santobello to the circumstances of his case. See United

States v. Kettering, 

, 677–78 (11th Cir. 1988) (collecting cases and

rejecting contention that principles of Santobello required a federal prosecutor to

abide by the unauthorized promise of DEA agent that defendant would serve no

more than five years’ imprisonment). Furthermore, Mr. Martinez suggests no

other Supreme Court precedent that the state court should have extended. We

conclude, therefore, that reasonable jurists could not debate the district court’s

determination that the decision of the Colorado Court of Appeals was neither

contrary to, nor an unreasonable application of, clearly established federal law.

Accordingly, Mr. Martinez is not entitled to a COA on his second claim.

IV. Ineffective Assistance of Counsel

      Mr. Martinez also asserts that his trial counsel rendered ineffective

                                         -10-
assistance by “fail[ing] to conduct sufficient investigation which would have

allowed him to present evidence showing that the force necessary to cause the

horrific death of the child was minimal and hence Mr. Martinez could not have

acted knowingly.” Aplt. Br. & App. at 4(f).

       The state trial court properly recognized that Strickland governs ineffective

assistance of counsel claims, and “requires a showing that counsel’s

representation fell below [an] objective standard of reasonableness and that there

is reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” R., Vol. 2, Post-Conviction Order at

2. Mr. Martinez “admitted to shaking the baby, striking the baby’s head against

the crib,” and “defense counsel presented a defense of accident at the trial.” 

question at trial was whether the fatal injuries were a result of

intentional conduct, or accident,” and “[t]he jury . . . apparently decided that

defendant acted with intent, after deliberation, not that the shaking and hitting of

the head was an accident.” 

court reasoned that “[p]resenting expert

testimony that the injuries to the baby might have been caused by factors other

than defendant’s action would not change the jury’s finding that defendant acted

deliberately.” 

state court rejected Mr. Martinez’s ineffective

assistance of counsel claim because presenting such expert testimony “was not

part of defense counsel’s trial strategy, nor would it have changed the outcome of

the trial.” 

                                         -11-
      Mr. Martinez fails to demonstrate that the state court unreasonably applied

Strickland to his case. Mr. Martinez makes a conclusory assertion that counsel’s

alleged failure was prejudicial. However, the state court determined that the jury

would have found that Mr. Martinez acted deliberately even if it had been

presented with Mr. Martinez’s proffered evidence. Mr. Martinez has pointed to

nothing to suggest that this determination is unreasonable. Accordingly,

reasonable jurists could not debate the district court’s determination that the state

trial court’s decision was neither contrary to, nor an unreasonable application of,

clearly established federal law. Thus, Mr. Martinez is not entitled to a COA on

his ineffective assistance of counsel claim.

V. Sentence-Enhancing Facts

      Mr. Martinez, relying on Apprendi v. New Jersey, 

(2000),

further argues “that it is unconstitutional for a legislature to remove from the jury

the assessment of facts which increase the prescribed range of punishments to

which a criminal defendant is exposed.” Aplt. Br. & App. at 4(g). Mr. Martinez

argues that the Colorado legislature violated Apprendi by reducing the mens rea

for first-degree murder from intent to knowledge, thereby “remov[ing] from the

jury the requisite determination necessary for a finding that a defendant

committed an offense which is punishable by a life without the possibility of

parole sentence versus a maximum aggravated sentence of 48 years.” 

      The state trial court held that Mr. Martinez’s life sentence “falls within the

                                         -12-
presumptive range of punishment, at the lowest end, and is therefore not illegally

enhanced. Defendant’s claim that his sentence is illegal must therefore fail.” R.,

Vol. 2, Post-Conviction Order, at 4.

      Obviously, the state trial court did not unreasonably apply Apprendi, which

requires “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum [to] be submitted to a 

(emphasis

added). And, unsurprisingly, Mr. Martinez advances no Supreme Court precedent

barring state legislatures from defining the elements of offenses under state law.

Furthermore, we are not aware of any such clearly established federal law.

Therefore, we conclude that reasonable jurists could not debate the district court’s

determination that the state trial court’s decision was neither contrary to, nor an

unreasonable application of, clearly established federal law. Accordingly, Mr.

Martinez is not entitled to a COA on his sentence-enhancing facts claim.

VI. Motion for Leave to Proceed In Forma Pauperis

      Finally, to obtain in forma pauperis status, a petitioner must show “a

financial inability to pay the required fees” and “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

McIntosh v. U.S. Parole Comm’n, 

, 812 (10th Cir. 1997) (internal

quotation marks omitted). We deny Mr. Martinez’s motion for leave to proceed

in forma pauperis because he has failed to present a reasoned, nonfrivolous

argument in support of the issues raised on appeal.

                                         -13-
                                CONCLUSION

      For the foregoing reasons, we DENY Mr. Martinez’s application for a COA

and DISMISS his appeal. We also DENY Mr. Martinez’s motion for leave to

proceed in forma pauperis because his appeal does not present a reasoned,

nonfrivolous argument.


                                     ENTERED FOR THE COURT



                                     Jerome A. Holmes
                                     Circuit Judge




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