FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 20, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 KARL KNAPP,

              Petitioner-Appellant,                       No. 09-2001
       v.                                           District of New Mexico
 JAMES JANECKA and the                      (D.C. No. 1:07-CV-00834-MCA-RHS)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

              Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY and McCONNELL, Circuit Judges.



      Karl Knapp, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Knapp has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request for

a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




       *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                                  BACKGROUND

      In August 2004, a jury convicted Mr. Knapp of two counts of first-degree

murder, one count of second-degree murder, and various other serious felony

charges, culminating in a seventy-six year sentence. On appeal, the New Mexico

Supreme Court affirmed the trial court’s conviction and sentence.

      Mr. Knapp filed a petition for collateral review with the Bernalillo County

District Court, which was denied the same day it was filed. The New Mexico

Supreme Court summarily dismissed Mr. Knapp’s appeal.

      Mr Knapp then filed a habeas petition in the United States District Court for

the District of New Mexico, pursuant to 28 U.S.C. § 2254. He asserted four

grounds for relief: (1) ineffective assistance of counsel; (2) prosecutorial

misconduct; (3) incorrect jury instruction; and (4) judicial bias. After a magistrate

judge found Mr. Knapp’s claims without merit, the district court dismissed his

petition. Mr. Knapp now requests a COA to permit him to appeal the district

court’s order.

                                    DISCUSSION

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). We will issue a COA “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

means a petitioner must demonstrate that “reasonable jurists could debate whether .

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. . the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 

, 484 (2000) (quotations omitted).

      The New Mexico state district court denied Mr. Knapp’s state habeas

petition in a summary order of dismissal. The Supreme Court of New Mexico

subsequently issued an order denying his certiorari petition without analysis.

Nevertheless, under the deferential standard of review established for federal

habeas claims by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

this Court must uphold a state court’s summary decision unless the state court’s

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

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

or “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); see

Aycox v. Lytle, 

, 1177 (10th Cir. 1999) (concluding that, in collateral

proceedings, we defer to the state court’s decision, even if its reasoning is not

expressly stated). Mr. Knapp has the burden of showing that the state court applied

Supreme Court precedent to the facts in an “objectively unreasonable manner.”

See Brown v. Payton, 

, 141 (2005); see also Woodford v. Visciotti, 

, 24–25, (2002) (per curiam).




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                       A. Ineffective Assistance of Counsel

      To prove ineffective assistance of counsel, “a defendant must show, by a

preponderance of the evidence, that (1) counsel’s performance fell below an

objective standard of reasonableness, and (2) prejudice, such that there is a

reasonable probability that but for counsel’s errors, the outcome of the trial would

have been different.” Young v. Sirmons, 

, 674–75 (10th Cir. 2007)

(citing Strickland v. Washington, 

, 692–93,(1984)). There is a strong

presumption that trial counsel acted within the “wide range of reasonable

professional assistance.” 

.

      Mr. Knapp argues that his counsel failed to present any sort of exculpatory

defense on his behalf; he contends that his counsel relied on the prosecution’s

theory and presentation of the case to his detriment. We disagree. In light of the

overwhelming evidence of guilt presented at trial (numerous witnesses, ballistics

evidence, etc.), it is highly unlikely that the outcome of the trial would have been

different had Mr. Knapp’s counsel pursued the notion that Mr. Knapp had not shot

the three victims, as Mr. Knapp now appears to contend. Pursuing such a defense

would have diminished the credibility of the defense, decreasing the likelihood of a

favorable sentence. Considering the circumstances, it was reasonable for Mr.

Knapp’s counsel not to pursue an exculpatory defense.

      Mr. Knapp next argues that counsel failed to conduct adequate pre-trial

investigation—in particular, that trial counsel did not investigate any witnesses,

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documents, or evidence that would have vindicated Mr. Knapp. Mr. Knapp fails to

show, however, that any further investigation would have altered the outcome of

the trial. He points to no specific witness or document that should have been

investigated, and makes no showing that the failure to investigate was prejudicial.

See Gardner v. Galetka, 

, 871 (10 Cir. 2009) (no ineffective

assistance when counsel had no reason to conduct further investigation and there

was no showing of prejudice).

      Mr. Knapp also argues that his trial counsel was ineffective in failing to

present evidence that he suffers from a low IQ. He alleges, “Borderline IQ is pro

forma [sic] consistent with mental retardation.” R. at 16. Mr. Knapp seems to

contend that his low IQ, coupled with his substance abuse, prevented him from

forming the requisite intent for first degree murder. This Court’s review of the

omitted evidence, however, leads us to conclude that the evidence is far less

beneficial than asserted by Mr. Knapp.

      Mr. Knapp fails to explain how his borderline IQ would have changed the

jury’s determination that he intended to kill his estranged girlfriend, especially

when he literally hunted her, following her from business to business before killing

her at extremely close range. See 

; Nguyen v. Reynolds,

, 1349 (10th Cir.1997). “Borderline” mental retardation constitutes a

higher level of intellectual function than mildly mentally retarded, see Snow v.

Sirmons, 

, 732 (10th Cir. 2007), and does not in itself negate intent.

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In addition, Mr. Knapp fails to establish that evidence of his low IQ would have

reduced his sentence. Under New Mexico criminal law the punishment for first

degree murder is either life in prison or death. N.M. Stat. § 31-20 (2008). Since

Mr. Knapp was not sentenced to death, Mr. Knapp has not established that he was

prejudiced by the omission of this later-identified mitigating evidence.

      The failure to call an expert witness likewise was neither deficient nor

prejudicial. It is unclear how additional testimony from an expert witness stating

that Mr. Knapp was intoxicated would benefit him, as both parties stipulated that

Mr. Knapp had an extensive history of substance abuse, he was convicted of

possession of a controlled substance, and the jury was informed that he had been

drinking. As the Supreme Court has observed, “counsel . . . may disserve the

interests of his client by attempting a useless charade.” United States v. Cronic,

, 657 n.19 (1984). Mr. Knapp’s counsel may well have thought that

expert testimony was exactly that. This Court is not in the position to

second-guess strategic trial decisions.

      Next, Mr. Knapp argues that his counsel provided ineffective assistance by

failing to present an intoxication defense. However, Mr. Knapp’s allegations are

contradicted by the record, as outlined below in Section C.

      We conclude that the New Mexico state court’s rejection of Mr. Knapp’s

ineffective assistance of counsel claim was neither contrary to nor an unreasonable

application of clearly established federal law, nor was it based on unreasonable

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determinations of the facts in light of the evidence presented. No reasonable jurist

would think otherwise. Accordingly, Mr. Knapp’s request for a COA is denied on

this claim.

                            B. Prosecutorial Misconduct

      Mr. Knapp claims that the prosecutor made unfairly prejudicial remarks to

jurors in the course of the trial. He points to the following statements, which

appear to be a paraphrase of the prosecutor’s opening and closing arguments setting

out the state’s theory of the case:

      [The prosecution said that] Karl Knapp shot Jane Johnston in a fit of rage
      because Jane Johnston was about to leave defendant and move on with her
      life. . . . He couldn’t stand to see her with anyone else. The prosecution said
      that defendant had planned revenge against Jane Johnston because she was
      going to testify against him in a domestic matter which occurred a few
      months prior to her death. . . . The prosecution told the jury that the
      defendant shot Greg Maguire and Steve Goodwin for no good reason. She
      said that the shooting[s] were deliberate and that the three murders were
      premeditated.

App. for Habeas Corpus 9–10.

      The defendant did not object to these statements at trial, and we therefore

review for plain error. See Duffield v. Jackson, 

, 1238 (10th Cir.

2008) (laying out elements of plain error review).

      The prosecutor’s statements do not rise to the level of prosecutorial

misconduct, let alone plain error. “[P]rosecutorial misconduct in a state court

violates a defendant’s right to a fair trial only if the prosecutor’s actions ‘so

infected the trial with unfairness as to make the resulting conviction a denial of due

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process.’” Nguyen v. Reynolds, 

, 1358 (10th Cir. 1997) (quoting

Donnelly v. DeChristoforo, 

, 643 (1974)). In making this

determination, the court must consider “the strength of the evidence against the

defendant and decide whether the prosecutor’s statements plausibly could have

tipped the scales in favor of the prosecution.” Cummings v. Evans, 

,

618 (10th Cir. 1998). We review denial of this claim only for “unreasonable

application of the standard.” Bland v. Sirmons, 

, 1024 (10th Cir.

2006).

         In light of the powerful evidence against Mr. Knapp, it was reasonable for

the state court to conclude that the prosecutor’s remarks did not render his trial

unfair. Although it is improper for the prosecution to use closing argument to

inflame the passions and prejudices of the jury, United States v. Young, 

,

9 n.7 (1985), that is balanced by the acknowledgment that in “an emotionally

charged trial,” the prosecutor’s closing argument “need not be confined to the

detached exposition as would be appropriate in a lecture.” United States v.

Lotspeich, 

(10th Cir.1986), quoting United States v. Bishop, 

, 220 (10th Cir. 1976). Moreover, when reviewing on a plain-error

standard, prosecutorial misstatements, even if “inappropriate and amounting to

error,” must be so severe “as to undermine the fundamental fairness of the trial and

contribute to a miscarriage of justice” in order to amount to a due process

violation. 

. Even assuming the impropriety of the

                                           -8-
challenged statements, we find that nothing indicates they were sufficiently

egregious to render the trial fundamentally unfair, and we find no grounds to

justify COA.

                                C. Jury Instructions

      Mr. Knapp next argues that the trial court refused to give any jury

instructions on diminished capacity, and that this constituted reversible error.

However, Mr. Knapp’s claim is contradicted by the record. In affirming Mr.

Knapp’s judgement and sentence on direct appeal, the state supreme court found

that “[t]he district court judge gave the jury instructions on intoxication with

regard to the murder and aggravated burglary charges, but denied Defendant’s

request for a similar instruction with regard to the aggravated stalking charge.” R.

at 211. To be sure, the state district court declined to give the jury Mr. Knapp’s

proposed diminished capacity instructions on the aggravated stalking charge, but

this was not error. As the state supreme court explained: “there was insufficient

evidence of intoxication to warrant an intoxication instruction for the aggravated

stalking charge.” 

Mr. Knapp offers nothing that would lead us to

conclude that factual judgment was clearly in error. Because Mr. Knapp actually

received an intoxication instruction on some of the charges and was not entitled to

such an instruction on the other, we deny COA on this claim.




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                                   D. Judicial Bias

      Mr. Knapp alleges that, on post conviction relief, the state trial court

exhibited bias, as evinced by several adverse rulings. Yet “judicial rulings alone

almost never constitute a valid basis for a bias or partiality motion.” Liteky v.

United States, 

, 555 (1994) (citing United States v. Grinnell Corp.,

, 583 (1966)). Because it is Mr. Knapp’s burden to overcome the

presumption of impartiality, Bracy v. Gramley, 

, 909 (1997); Fero v.

Kerby, 

, 1479 (10th Cir.1994), his failure to offer any evidence of

actual bias is fatal to his request for a COA on this claim.

                E. Motion to Proceed Without Prepayment of Fees

      The magistrate judge granted Mr. Knapp’s application to proceed without

prepayment of fees on August 5, 2008. Thus, he may proceed on appeal in forma

pauperis without further authorization. See Fed. R. App. P. 24(a)(3). We therefore

deny as moot his motion in this Court for leave to proceed in forma pauperis.

                                   CONCLUSION

      Accordingly, we DENY Mr. Knapp’s request for a COA and DISMISS this

appeal. Petitioner is permitted to proceed in forma pauperis.



                                                      Entered for the Court,

                                                      Michael W. McConnell
                                                      Circuit Judge


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