FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   December 22, 2009
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 JULIAN SAM,

          Petitioner-Appellant,

 v.                                                     No. 09-1376
                                             (D.C. No. 07-CV-01405-LTB-KMT)
 STEVE HARTLEY; THE                                      (D. Colo.)
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,

          Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Julian Sam, a Colorado state prisoner appearing pro se, seeks a certificate

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

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

stated below, we DENY Sam’s request and DISMISS this matter.

                                         I

      On February 12, 1999, Julian Sam and an accomplice entered the basement

of a home in Denver, Colorado wearing ski masks and proceeded to assault and



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
rob the residents at gun point. When the police arrived at the scene, they flooded

the home with tear gas. Sam’s accomplice was apprehended when he fled from

the residence. Sam was found inside a bedroom closet, hiding under a pile of

clothing.

      Sam was subsequently charged in Denver City and County Court with two

counts of aggravated robbery, one count of first degree robbery, one count of

second degree robbery, one count of second degree assault, and two counts of

menacing. Sam was convicted by a jury of all six charges. He was then

sentenced to two consecutive thirty-year terms on the robbery charges. He was

also sentenced to the following concurrent sentences: thirty years for the burglary

charge, sixteen years for the assault charge and six years for each of the two

menacing charges.

      Sam then filed a direct appeal to the Colorado Court of Appeals (“CCA”).

The CCA affirmed his convictions, but remanded with instructions to clarify the

issue of which robbery sentence the remaining sentences were to run concurrent

to. See People v. Sam, No. 00CA0203 (Colo. Ct. App. Dec. 6, 2001) (“Sam I”).

Sam then petitioned the Colorado Supreme Court for a writ of certiorari, which

was denied on April 29, 2002.

      Sam next filed a motion to vacate his conviction pursuant to Rule 35(c) of

the Colorado Rules of Criminal Procedure, alleging ineffective assistance of

counsel. The trial court held an evidentiary hearing before denying Sam’s motion

                                          2
in a written order. Sam appealed the denial of his Rule 35(c) motion and the

CCA affirmed the trial court on December 14, 2006. See People v. Sam, No.

04CA2489 (Colo. Ct. App. Dec. 14, 2006) (“Sam II”). Sam then petitioned the

Colorado Supreme Court for a writ of certiorari which was denied on April 2,

2007.

        In June 2007, Sam filed a second Rule 35(c) motion in which he alleged his

postconviction counsel had been ineffective in failing to investigate and present a

particular allegation of ineffective assistance of trial counsel. The district court

dismissed this motion as untimely and successive, but did not rule on its merits.

On appeal, the CCA chose to address the merits of Sam’s motion, but nonetheless

affirmed the district court’s dismissal. See People v. Sam, No. 07CA1903 (Colo.

Ct. App. Nov. 6, 2008) (“Sam III”).

        Meanwhile, on July 5, 2007, Sam filed a petition for federal habeas corpus

relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the

District of Colorado. In his petition Sam raised seven grounds for relief: (1) that

he was denied the right to call witnesses; (2) that due to the denial of his right to

call witnesses, he was also denied the right to present a defense; (3) that he was

denied his right to due process by the trial court’s rejection of his proposed “mere

presence” jury instruction; (4) that he was denied the right to have the jury

properly consider the lesser included offenses; (5) that the jury was not properly

instructed on the elements of burglary under Colorado law; (6) that he was denied

                                           3
a fair trial due to cumulative error; and (7) that he was denied the right to

effective assistance of both trial counsel and postconviction counsel. The district

court denied Sam’s petition for habeas relief in a very thorough, written order.

See Sam v. Hartley, et al., No. 07-cv-01405-L-TB (D. Colo. June 24, 2009) (“Sam

IV”).

                                          II

        A COA is a jurisdictional prerequisite to an appeal from the district court’s

denial of a habeas petition filed under § 2254. See 28 U.S.C. § 2253(c)(1). A

COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 

2253(c)(2). If the district court has

rejected a prisoner’s claims on the merits, in order to show the denial of a

constitutional right a prisoner must demonstrate that “reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 

, 484 (2000).

        Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), if a

claim has been adjudicated on the merits in state court, a petitioner is entitled to §

2254 habeas relief only if he can establish that the state court’s adjudication of

the claim:

        (1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable

                                           4
          determination of the facts in light of the evidence presented at the
          state court proceeding.

28 U.S.C. § 2254(d). Further, in this context “a determination of a factual issue

made by a State court shall be presumed to be correct [and] … [t]he applicant

[bears] the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 

2254(e)(1).

          Since the CCA addressed Sam’s claims on their merits, the district court

applied these provisions of the AEDPA. Thus, our task is to determine whether,

with respect to each of Sam’s claims, reasonable jurists could debate the district

court’s determination that the CCA’s adjudication was neither unreasonable nor

contrary to established federal law. For the following reasons, we conclude that

Sam has failed to make such a showing with respect to any of the seven issues he

raises.

(1), (2). Denial of the Right to Call Witnesses

          In his first two claims, Sam argues that his Sixth Amendment right to

compulsory process and his Fifth Amendment right to due process were violated

when the trial court excluded his girlfriend, Nadiyah Berry, from testifying at

trial. We agree with the CCA and the district court that these two claims were

substantially similar. We will also address them as a single claim.

          Sam hoped that Berry would testify that she had given Sam $1,000 in cash

one week prior to the robbery. Sam would rely on this testimony to establish that


                                             5
the money that police found on his person was not stolen. The prosecution

objected to the witness testifying because she had not been endorsed until the

third day of trial, she had not been sequestered from other witnesses, she had been

present in the court room during the trial, and the prosecution had no opportunity

to conduct any discovery concerning her potential testimony. The trial court

excluded the testimony, finding that Sam had been on notice since the time the

charges were filed that the source of the money found on his person would be an

issue. The court concluded that allowing Berry’s testimony would be an unfair

surprise to the prosecution.

      The CCA agreed that Sam was on notice that the source of the money

would be an issue and that his failure to timely endorse Berry as a witness

violated Rule 16 of the Colorado Rules of Criminal Procedure, which requires

that defense witnesses be disclosed no later than thirty days before trial. See Sam

I at 2. The CCA concluded that the trial court’s decision to exclude Berry’s

testimony was not an abuse of discretion. See 

On federal habeas

review, the district court concluded that the CCA’s affirmation of the trial court

was reasonable, specifically citing Taylor v. Illinois, 

, 408 (1988).

See Sam IV at 7-11.

      In Taylor, the Supreme Court recognized that “[f]ew rights are more

fundamental than that of an accused to present witnesses in his own defense,” but

went on to affirm the trial court’s exclusion of a witness whose name was not

                                          6
disclosed to the prosecution until the second day of trial, despite defense

counsel’s admission that he was aware of the witness’ name before 

, 408. The Court noted that while less severe remedies for the untimely

disclosure of a defense witness are always available, when the discovery

violations that lead to such untimely disclosures are flagrant or designed to

conceal a plan to present fabricated testimony or gain a tactical advantage,

exclusion of the witness is entirely consistent with the Compulsory Process

Clause of the Sixth Amendment. See 

      We conclude that reasonable jurists would not debate the district court’s

conclusion that the CCA’s adjudication of Sam’s first two claims was based on a

reasonable application of relevant federal law. Therefore, neither of these claims

may serve as an adequate basis for the granting of a COA.

(3). “Mere Presence” Instruction

      In his third claim, Sam argues that his constitutional right to due process

was violated when the trial court refused to give his proposed “mere presence”

instruction to the jury. The proposed instruction read as follows: “The guilt of a

defendant cannot be established by mere presence at the scene of a crime, even

with knowledge that a crime is being committed.” Trial Court Record, Vol. I, p.

22. The trial court rejected this instruction citing the CCA’s opinion in People v.

Simien, 

(Colo. Ct. App. 1983), wherein it stated:

      [W]here proper instructions are given concerning the presumption of

                                          7
      innocence, the prosecution’s burden of proof, reasonable doubt, the
      essential elements of the offenses, and the definition of the requisite
      mens rea, the so called ‘mere presence’ instruction is necessarily
      encompassed by the instructions as a whole, and need not be 

. On appeal, the CCA held that the trial court had properly

instructed the jury and as such concluded “that the jury did not base its guilty

verdicts on [Sam’s] mere presence at the scene.” Sam I at 6. Finally, the district

court on habeas review concluded that the CCA’s adjudication was reasonable

because the trial court’s failure to give the proposed instruction did not implicate

“fundamental fairness.” Sam IV at 11-13.

      In Henderson v. Kibbe, 

(1977), the Supreme Court noted that

“[a]n appraisal of the significance of an error in the instructions to the jury

requires a comparison of the instructions which were actually given with those

that should have been 

. The Court went on, however, to

say that as a general rule in a habeas proceeding regarding jury instructions, the

proper inquiry is whether “the ailing instruction by itself so infected the entire

trial that the resulting conviction violates due process, not merely whether the

instruction is undesirable, erroneous, or even universally condemned.” 

and quotations omitted).

      Given the fact that the jury in Sam’s trial was properly instructed with

respect to the prosecution’s burden of proof, reasonable doubt and the requisite

mens rea, we conclude that reasonable jurists would not debate the district court’s


                                           8
conclusion that the CCA reasonably applied relevant federal law. As such, Sam’s

third claim does not provide an adequate basis for the granting of a COA.

(4). Comments of the Prosecutor

      In his fourth claim, Sam argues that his constitutional right to due process

was violated when the trial court allowed the prosecutor to encourage the jury to

completely disregard the jury instructions. Specifically, he objects to the

following portion of the prosecutor’s closing argument:

             Then you have a bunch of what are called lesser offenses, and
      after each there are elements that say I have to prove this and that and
      the other that are numbered.

            Then the next page that you will see will say, if it necessarily
      includes a lesser offense, such as first degree burglary and a lesser
      offense of criminal trespass.

             Aggravated robbery has a lesser offense of robbery. The lesser
      offenses, you can only convict on those if you believe there was no gun
      involved, or Mr. Sam was just in there without the intention to commit
      theft; he just happened to be there. Those are the lesser included
      offenses. Read them. They don’t have anything to do with the facts in
      this case, they’re just there, and that’s it for the complicity instructions.
      It’s just as to that one count.

Trial Transcript, Vol. 5, p. 118.

      The trial court denied Sam’s motion for a mistrial based on these

comments. On appeal, the CCA recognized that pursuant to Colorado law, it is

improper for a court to indicate that jury instructions offered by the defendant are

less worthy of the jury’s consideration. Sam I at 8 (citing People v. Coria, 

(Colo. 1997)). The CCA chose not to grant relief, however, noting that

                                           9
it was the prosecution who had commented on the instructions, not the court, and

that in any event the instructions had not been labeled as defense instructions. 

The district court, guided by Donnelly v. DeChristoforo, 

, 642-

48 (1974), and Darden v. Wainwright, 

, 181-82, concluded that the

CCA’s adjudication was reasonable because the prosecutor’s comments were not

so egregious that they rendered the entire trial fundamentally unfair. Sam IV at

13-16.

         In Darden, the Supreme Court noted that in assessing this type of

prosecutorial conduct in the habeas corpus context, “[t]he relevant question is

whether the prosecutor’s comments so infected the trial with unfairness as to

make the resulting conviction a denial of due 

(citing

). In concluding that the prosecutor’s comments in

Darden did not so infect the trial, the Court noted that the prosecutor’s argument

“did not manipulate or misstate the evidence, nor did it implicate other specific

rights of the accused such as the right to counsel or the right to remain silent.”

The Court also noted that the “[t]he trial court instructed the jurors

several times that their decision was to be made on the basis of the evidence

alone, and that the arguments of counsel were not evidence,” and also mentioned

that the heavy weight of the evidence against the petitioner reduced the likelihood

that the jury’s decision was influenced by argument. 

         Given that the challenged comments were made by the prosecutor and not

                                           10
the trial court, and given the weight of the evidence against Sam, we conclude

that reasonable jurists would not debate the district court’s conclusion that the

CCA reasonably applied relevant federal law. As such, Sam’s fourth claim

cannot serve as the basis for the granting of a COA.

(5). Jury Instructions on Theft

      In his fifth claim, Sam argues that his constitutional right to due process

was violated because the trial court failed to properly instruct the jury on the

elements of theft, the crime underlying Sam’s burglary charge. Specifically, he

objects to the fact that although the trial court properly instructed the jury as to

the elements of burglary, it failed to instruct the jury as to the elements of the

theft, thereby permitting the jury to convict him of burglary without specifically

finding each element of the crime.

      As Sam did not raise this argument before the trial court, on direct appeal

the CCA reviewed the issue only for plain error. Sam I at 9. The CCA concluded

that there was no plain error because, in light of the fact that the jury had

convicted Sam of aggravated robbery, it had already found that he took something

of value from his victims. 

Thus, the only element of theft that had

not been found was the intent to permanently deprive the victims of this property.

the CCA, it would be “antithetical to the facts of this case” for

the jury to have concluded that Sam did not intend to permanently deprive the

victims of their money. 

The district court, guided by the Supreme

                                          11
Court’s decisions in Estelle v. McGuire, 

(1991) and Henderson,

concluded that the CCA’s adjudication was a reasonable application of federal

law because the erroneous instruction did not so infect the entire trial so as to

violate due process. Sam IV at 16-19.

       We agree that the trial court erred when it failed to instruct the jury on the

elements of theft. But, as the district court correctly noted, the Supreme Court

has held that “the fact that [an] instruction was allegedly incorrect under state law

is not a basis for habeas relief.” 

. Rather, the Court has

held that collateral relief is available only if “the ailing instruction by itself so

infected the entire trial that the resulting conviction violates due process.”

. Finally, the Court has also mentioned that “[a]n

omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law.” 

       Given that by convicting Sam of aggravated robbery, the jury found each

element of theft except the intent to permanently deprive, and given that Sam is

entitled to relief only if “the ailing instruction by itself so infected the entire trial

that the resulting conviction violates due process,” 

,

we conclude that reasonable jurists would not debate the district court’s

conclusion that the CCA’s adjudication was a reasonable application of federal

law. As such, Sam’s fifth claim provides no basis for the issuance of a COA.




                                            12
(6). Cumulative Error

      In his sixth claim, Sam argues that he was denied his constitutional right to

due process because of cumulative trial error. The CCA concluded that “the

errors combined did not prevent [Sam] from receiving a fair trial.” Sam I at 10.

The district court concluded that “the CCA’s rulings do not constitute an

unreasonable application of the cumulative-error doctrine, nor were they

unreasonable determinations of the facts presented in the state court proceedings.”

Sam IV at 20.

      In the context of habeas relief, cumulative error is reviewed under the same

standard as individual error. Thornburg v. Mullin, 

, 1137 (10th Cir.

2005). Thus, relief is warranted only if the errors alleged by Sam cumulatively

“infected the trial with unfairness as to make the resulting conviction[s] a denial

of due process.” 

. Based on our analysis of the alleged

errors, we conclude that reasonable jurists would not debate the district court’s

conclusion that the CCA’s adjudication of the cumulative error issue was a

reasonable application of federal law. As such, Sam’s sixth claim cannot serve as

the basis for the issuance of a COA.

(7). Ineffective Assistance of Counsel

      In his final claim, Sam alleges that he was denied his constitutional right to

the effective assistance of both trial counsel and postconviction counsel. In

support of his position, Sam points to the following six errors he alleges trial

                                         13
and/or postconviction counsel made: (a) failure to object when the elements of

theft were omitted from the jury’s burglary instructions; (b) failure to offer a

“mere presence” jury instruction; (c) failure to object to the introduction of two

guns at trial; (d) objection to the introduction of a ski mask; (e) failure to

investigate numerous aspects of Sam’s case; and (f) failure of postconviction

counsel to investigate trial counsel’s failure to attack the credibility of a victim.

      Because “[t]he ineffectiveness or incompetence of counsel during Federal

or State collateral post-conviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254,” see 28 U.S.C. § 2254(i), we consider only

Sam’s claims of ineffective assistance of trial counsel. Under Strickland v.

Washington, 

(1984), Sam may establish the ineffectiveness of his

trial counsel only by demonstrating that counsel’s performance fell below an

objective standard of reasonableness and that this deficiency resulted in prejudice

to his 

. There is a strong presumption that counsel’s

performance falls within the range of reasonableness and it is Sam’s burden to

overcome this presumption. 

Finally, in order to establish prejudice,

Sam must demonstrate that there is “a reasonable probability that, but for

counsel’s unprofessional errors, the resulting proceedings would have been

different.” 

We address the CCA and district court’s application of

this standard to each of Sam’s allegations.




                                           14
      (a) Burglary Instructions

      In addressing Sam’s ineffective assistance claim with respect to trial

counsel’s failure to object to the trial court’s erroneous burglary instruction, the

CCA concluded that even if this constituted error, there was no prejudice to Sam

because the CCA had already concluded that the erroneous instruction did not

warrant a vacation of Sam’s convictions. Sam II at 2-3. The district court then

concluded that the CCA had reasonably applied Strickland. Sam IV at 22-23. In

light of the fact that the erroneous instruction did not prejudice Sam, we agree

with the district court that counsel was not ineffective in failing to object to it.

      (b) “Mere Presence” Instruction

      In response to Sam’s claim that his trial counsel was ineffective because he

failed to offer a theory of defense jury instruction based on “mere presence” due

to his lack of preparation for trial, the CCA first noted that defense counsel did

tender such an instruction. Sam II at 4. The CCA went on to find that in light of

the fact that it had already held that the omission of this instruction did not

prejudice Sam, Sam had no claim to ineffective assistance on these grounds. 

CCA concluded by finding that defense counsel had, in fact,

developed a theory of defense during trial. 

      On habeas review, the district court concluded that in light of the fact that

Sam had offered no evidence either rebutting the CCA’s factual finding that

defense counsel had developed a theory of the case or indicating that counsel was

                                           15
not prepared for trial, the CCA had reasonably applied Strickland. Sam IV at 23-

24. We conclude that no reasonable jurist would debate the district court’s

conclusion.

      (c) Failure to Object

      In addressing Sam’s claim that he received ineffective assistance because

trial counsel failed to object to the prosecution’s introduction of two guns brought

to the police by the victims two days after the crime, the CCA found that there

had been no prejudice because Sam had not provided any facts or legal authority

to support a claim that the guns should have been suppressed. Sam II at 9-10.

The district court noted that the Supreme Court has observed that “counsel may

disserve the interests of his client by attempting a useless charade,” Sam IV at 25

(citing United States v. Cronic, 

, 657 n.19 (1984) (alterations

omitted)), that it was not in a position to second guess the tactical decisions of

trial counsel, and that the CCA had reasonably applied Strickland. 

that no reasonable jurist would debate this conclusion.

      (d) Objection to Ski Mask

      Sam next alleged that he received ineffective assistance because trial

counsel improperly objected to the prosecution’s introduction of a ski mask which

Sam contends supports his claim that there was a third, as yet unapprehended

person responsible for the crimes. The CCA rejected Sam’s claim finding that

counsel’s objection was a matter of trial strategy that was neither unreasonable

                                          16
nor prejudicial to Sam. See Sam II at 10-11. The CCA noted that counsel’s

objection to the ski mask came during the prosecution’s case-in-chief and related

to the prosecution’s failure to give notice of its existence during discovery. 

noted that counsel specifically requested that he be permitted to introduce

the evidence, if necessary, in his case-in-chief. 

      In reviewing the CCA’s decision, the district court began by noting that we

have held that “where it is shown that a particular decision was, in fact, an

adequately informed strategic choice, the presumption that the attorney’s decision

was objectively reasonable becomes ‘virtually unchallengeable.’” Sam IV at 26

(citing United States v. Nguyen, 

, 1181 (10th Cir. 2005) (internal

quotations omitted)). It went on to conclude that in light of the fact that Sam had

produced no evidence that counsel’s decision was not such a strategic decision,

the CCA had reasonably applied Strickland. 

and conclude that no

reasonable jurist would debate the district court’s conclusion.

      (e) Failure to Investigate

      Sam next claims trial counsel was ineffective by failing to: (i) investigate

and endorse Berry as a witness prior to trial; (ii) interview Sam’s co-defendant;

(iii) investigate the identity of a third person allegedly also present at the crime

scene; and (iv) investigate the crime scene. In addressing the issue of counsel’s

failure to investigate in Strickland, the Supreme Court noted that “a particular

decision not to investigate must be directly assessed for reasonableness in all the

                                          17
circumstances, applying a heavy measure of deference to counsel’s 

. It is with this Strickland standard in mind that we now analyze

the CCA’s and district court’s adjudications of these claims.

             (i), (ii), (iii) Failure to Investigate Berry, Co-Defendant, and Third
             Person

      In concluding that counsel’s failure to investigate these individuals had not

prejudiced Sam, the CCA noted that at the evidentiary hearing on his first motion

to vacate, Sam conceded on cross-examination that he had failed to provide

counsel with contact information for Berry, had never told counsel that his co-

defendant had useful information and knew neither the name nor the whereabouts

of the alleged third person. Sam II at 6. The CCA further noted that Sam had

failed to produce evidence suggesting that any of the three were willing to testify

or offer any proof of the substance, credibility, or admissibility of their

anticipated testimony. 

      In finding that the CCA had reasonably applied Strickland, the district

court noted that we have held that “a petitioner who challenges his counsel’s

effectiveness because counsel decided not to interview a potential witness, must

establish the decision not to interview was unreasonable from counsel’s

perspective at the time the decision was made.” Sam IV at 28 (citing Anderson v.

Att’y Gen. of Kan., 

, 859 (10th Cir. 2005)). We conclude in light of

the facts noted by the CCA, that no reasonable jurist would debate this conclusion


                                          18
of the district court.

              (iv) Failure to Investigate the Crime Scene

       In concluding that trial counsel’s failure to investigate the crime scene had

not prejudiced Sam, the CCA found that “[Sam’s] argument that, had counsel

investigated the crime scene, counsel could have explained why [Sam] was at the

victims’ house and thereby rebutted the prosecution’s theory he broke into the

house, is speculative and conclusory, and thus does not support a claim of

ineffective assistance.” Sam II at 8-9. The district concluded that the CCA had

reasonably applied Strickland, noting that Sam had failed to show that an

additional investigation into the crime scene could have produced a different

result at trial. Sam IV at 29. As Sam has yet to make such a showing, we

conclude that no reasonable jurist would debate the district court’s conclusion.

       (f) Failure to Attack Victim’s Credibility

       In his final ineffective assistance claim, Sam alleges that his postconviction

counsel was ineffective for failing to investigate trial counsel’s failure to attack

the credibility of one of the victims on the grounds that the victim was an illegal

immigrant who had provided police with a false name. As previously noted,

however, we may not entertain this claim because “[t]he ineffectiveness or

incompetence of counsel during Federal or State collateral post-conviction

proceedings shall not be a ground for relief in a proceeding arising under section

2254.” 28 U.S.C. § 2254(i).

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                                     III

     Sam’s request for a Certificate of Appealability is DENIED and this matter

is DISMISSED.

                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




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