F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 18 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KINSHASA COOLEY,

                Petitioner-Appellant,

    v.                                                   No. 03-1420
                                                  (D.C. No. 02-B-1394 (PAC))
    GARY WATKINS; ATTORNEY                                 (D. Colo.)
    GENERAL FOR THE STATE OF
    COLORADO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, MURPHY , Circuit Judge, and         CAUTHRON , **
Chief District Judge.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       The Honorable Robin J. Cauthron, Chief District Judge, United States
District Court for the Western District of Oklahoma, sitting by designation.
       Petitioner Kinshasa Cooley, a Colorado state prisoner, was convicted by a

jury of burglary, kidnaping, aggravated robbery, assault, and sexual assault. After

concluding direct appeal and post-conviction proceedings in state court, Cooley

filed a petition for a writ of habeas corpus in federal court, pursuant to 28 U.S.C.

§ 2254. He asserted that: (1) the prosecution withheld exculpatory evidence from

the defense, contrary to the holdings of    Kyles v. Whitley , 

(1995) and

Brady v. Maryland , 

(1963); (2) during jury selection, the prosecution

excused a prospective juror on the basis of race, contrary to the holding of   Batson

v. Kentucky , 

(1986); and (3) Cooley’s trial counsel was

constitutionally ineffective under the standard of    Strickland v. Washington ,

(1984). A magistrate judge rejected Cooley’s claims of error on the

merits without holding an evidentiary hearing. Upon de novo review, the district

court adopted the magistrate judge’s report and recommendation and dismissed

Cooley’s § 2254 petition with prejudice.

       Cooley now challenges the district court’s order denying his petition,

rearguing the three claims made in the district court. He also asserts that he was

entitled to an evidentiary hearing. Previously, this court granted a certificate of

appealability (COA) on the    Kyles/Brady issue. See 28 U.S.C. § 2253(c)(1)(A)

(providing that, in the absence of a COA, a habeas petitioner may not appeal).




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We affirm the district court’s ruling on that issue and deny COA on the remaining

issues.

                                      DISCUSSION

Suppression of exculpatory evidence

       Suppression “of evidence favorable to an accused . . . violates due process

where the evidence is material either to guilt or to punishment.”       Brady , 373 U.S.

at 87. Generally, evidence is material “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would

have been different.”      Kyles , 514 U.S. at 433. In this habeas action, we view

petitioner’s claim under the deferential standard set out in 28 U.S.C. § 2254(d).

Where, as here, petitioner’s claims were adjudicated on the merits in state court

proceedings, this court may grant habeas relief only where the state court decision

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

Federal law, as determined by the Supreme Court” or was “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.”      

criminal trial, the evidence indicated that Cooley (as identified

by the victims) and three other armed men forced entry into a home, and

“bound, beat, and terrorized the victims, while ransacking the house in search

of money they believed to be present.” Aplt.’s App. at 140 (        People v. Cooley ,


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No. 95CA0849 (Colo. Ct. App. Feb. 6, 1997) (not selected for official

publication)). After several hours, the robbers left, taking “cash, jewelry and

other items” with them.    

his defense on a mistaken identity

theory, presenting testimony “from his wife that he had been home asleep with

her on the night of the crime.”   

       Before trial, the prosecution had disclosed to Cooley that a gun case

designed for the type of gun used in the incident had been found a few houses

away from the victims’ home and that the case contained a serial number. On the

last day of trial, an investigating detective’s testimony added new information.

The detective stated that the gun case had been traced through the serial number

to a man named Morrell and that the police had tried but failed to contact him.

During closing argument, Cooley used this testimony to claim that Morrell was

the true robber.

       On federal habeas review, the magistrate judge assigned to the case

evaluated the entire record of Cooley’s trial and observed that

       given the victims’ positive identification of Mr. Cooley and the fact
       that the jury convicted Mr. Cooley despite hearing evidence that
       Mr. Cooley was not the purchaser of the gun, there is no reasonable
       probability that the outcome of the trial would have been different if
       the defense had been given the information about the purchaser of
       the gun prior to trial.

The magistrate judge concluded that the state courts’ determination on

the immateriality of Morrell’s name was consistent with clearly-established

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federal law. She therefore recommended denial of habeas relief on the

Brady/Kyles issue. Upon our examination of the record, we determine that this

claim fails for substantially the same reasons set forth in the report and

recommendation of the magistrate judge.

Exclusion of African-American prospective juror

      Cooley, who is African-American, seeks a COA on his claim that the

prosecution violated his equal protection rights by exercising a peremptory

challenge to exclude an African-American woman from the jury.           See Batson ,

476 U.S. at 89 (holding that a prosecutor may not exercise a peremptory challenge

on the basis of race). A COA may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right” on specified issues.

28 U.S.C. § 2253(c)(2). To make a substantial showing, “a petitioner must show

that reasonable jurists could debate whether (or, for that matter, agree that) 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 , 

, 336 (2003) (quoting   Slack v. McDaniel , 

,

484 (2000)) (internal quotation marks omitted). We incorporate the deferential

standard of 28 U.S.C. § 2254(d) “into our consideration of a habeas petitioner’s

request for COA.”    Dockins v. Hines , 

, 938 (10th Cir. 2004).




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       The magistrate judge properly addressed Cooley’s       Batson claim as “a

question of fact subjected to the standard enunciated in 28 U.S.C. § 2254(d)(2).”

Sallahdin v. Gibson, 

, 1225 (10th Cir. 2002). She therefore

presumed, in the absence of clear and convincing rebuttal evidence, that the state

court findings were correct.   

that the prosecution’s reasons for

challenging the juror were pretextual. However, based on her review of the

record, the magistrate judge concluded that Cooley had failed to present any

evidence of purposeful discrimination and that the state court’s    Batson findings

were reasonable. Accordingly, the magistrate judge recommended dismissal of

the Batson claim.

       Having examined Cooley’s application for a COA and the record on appeal,

this court concludes that Cooley is not entitled to a COA. We deny issuance of a

COA on the Batson claim for substantially the same reasons set out in the

magistrate judge’s report and recommendation.

Ineffective Assistance of Counsel

       Cooley next claims that his trial attorney was constitutionally ineffective

for a variety of reasons: failure to advise the trial court of Cooley’s prior

association with one of the prosecutors, failure to investigate whether the gun

case and a glove found at the crime scene belonged to Cooley, failure to object to

inappropriate behavior of a co-defendant’s attorney, coercion in waiving Cooley’s


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right to testify at trial, and a cumulative inadequacy. In order to prevail on an

ineffective assistance claim, a petitioner must demonstrate both that his attorney’s

performance was deficient and that the deficiencies prejudiced his defense.

Strickland , 466 U.S. at 687. A showing of prejudice requires a demonstration of

“a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.”     

      In his habeas petition, Cooley contended that the state courts’ denial of his

ineffectiveness claims was contrary to law and amounted to an unreasonable

application of the Strickland standard. After reviewing the state courts’ rationale

for rejecting Cooley’s argument, the magistrate judge concluded that the state

courts applied the correct test and that they reached the reasonable determination

that Cooley had not demonstrated any prejudice as a result of counsel’s alleged

errors. For substantially the reasons expressed in the magistrate judge’s report

and recommendation, we deny COA on Cooley’s ineffective assistance claim.

Denial of evidentiary hearing

      Finally, Cooley asserts that the district court erred in denying him an

evidentiary hearing. Because Cooley’s claims were capable of resolution on the

record, the district court did not abuse its discretion in making this determination.

See Torres v. Mullin , 

, 1161 (10th Cir.),    cert. denied , 124 S. Ct.




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562 (2003). Cooley was not entitled to an evidentiary hearing in the district

court, and we deny COA on this issue.

                                 CONCLUSION

      We AFFIRM the ruling of the district court denying Cooley’s     Brady claim.

As to the remaining claims, we DENY a certificate of appealability and DISMISS

this appeal.


                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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