FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 24, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 FREDRICK L. JONES,

          Petitioner-Appellant,
 v.

 STEVE HARTLEY, Warden of the
                                                         No. 09-1530
 Limon Correctional Facility, and
                                                 (D.C. No. 08-CV-2007-ZLW)
 THE ATTORNEY GENERAL OF
                                                          (D. Colo.)
 THE STATE OF COLORADO,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Fredrick L. Jones, 1 a Colorado state prisoner proceeding pro se, applies for

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

28 U.S.C. § 2254 petition for a writ of habeas corpus. Because the district court

correctly resolved all of Mr. Jones’s arguments, we deny the application.

                                       * * *

      *
        This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         In several filings in this court, Mr. Jones’s first name was spelled
incorrectly as “Frederick.” Because both the district court and Mr. Jones spell his
first name as “Fredrick,” that is the spelling we will adopt.
      Mr. Jones pled guilty to one count of second-degree kidnapping and one

count of first-degree sexual assault. The state trial court sentenced him to two

consecutive forty-five year prison terms, and his sentence was affirmed on direct

appeal. Mr. Jones then unsuccessfully pursued post-conviction relief in the state

courts, before filing the instant federal habeas petition under 28 U.S.C. § 2254.

The district court rejected each of Mr. Jones’s federal habeas claims and

dismissed his petition with prejudice, and it is this order from which Mr. Jones

now seeks to appeal.

      Because Mr. Jones is in custody pursuant to the judgment of a state court,

he may not appeal the federal district court’s denial of habeas relief without a

COA from the court of appeals. 28 U.S.C. § 2253(c)(1)(A). Where, as here, the

district court has addressed the merits of the petitioner’s claim, a COA will not

issue unless the applicant makes “a substantial showing of the denial of a

constitutional right.” 

Mindful of Mr. Jones’s pro se status, in

making this requisite assessment we review his claims with liberality. Van

Deelen v. Johnson, 

, 1153 n. 1 (10th Cir. 2007).

      Mr. Jones claims he is entitled to relief for four reasons. First, he argues

that trial counsel provided ineffective assistance by withdrawing various motions

to suppress prior to his plea. Second, he argues that trial counsel provided

ineffective assistance by failing to investigate an affirmative defense of impaired

mental condition. Third, he claims that the state trial court applied an incorrect

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legal standard in assessing whether he was prejudiced by his trial counsel’s

alleged errors. Fourth and finally, he contends that his due process rights were

violated when he received an unfair post-conviction evidentiary hearing in the

state trial court. In a thorough, eighteen-page order, the district court explored

and correctly rejected each of these claims, and we affirm for substantially the

reasons that the court gave in its order. 2

      In support of his first claim, Mr. Jones argues that trial counsel’s

withdrawal of various suppression motions forced him to plead guilty, rather than

proceed to trial. To succeed on a claim of ineffective assistance, Mr. Jones must

show that his counsel performed deficiently and that this deficient performance

“prejudiced the defense.” Strickland v. Washington, 

, 687 (1984).

In Hill v. Lockhart, the Supreme Court clarified that, in the plea context,

counsel’s deficient performance is prejudicial only if “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” 

, 58-59 (1985). As the district

court observed, Mr. Jones cannot satisfy this prejudice prong.

      At a post-conviction evidentiary hearing, Mr. Jones’s trial counsel testified

before a state court that he had withdrawn several pending motions to suppress


      2
         In his federal habeas petition, Mr. Jones also raised the claim that trial
counsel had induced him to plead guilty based on misrepresentations as to what
his sentence would be. On appeal, however, Mr. Jones has conceded that claim.
See Opening Br. at 3(a).

                                              -3-
DNA evidence, identification testimony, and incriminating statements at the

“specific request” of Mr. Jones, and the state court accepted this testimony as true

in rejecting Mr. Jones’s post-conviction motion. R. at 293. Before the district

court and us, Mr. Jones provides no evidence to rebut the state trial court’s

credibility and factual findings. As a result, and as the district court properly

held, Mr. Jones cannot establish that it was his trial counsel’s actions that led him

to plead guilty rather than proceed to trial. Mr. Jones seeks to avoid this result by

arguing that prejudice should be presumed. But for this to be true, he would need

to show that trial “counsel [had] entirely fail[ed] to subject the prosecution’s case

to meaningful adversarial testing,” Bell v. Cone, 

, 696 (2002)

(quoting United States v. Cronic, 

, 659 (1984)) (emphasis added),

and that is not the case here.

      In support of his second claim, Mr. Jones argues that trial counsel should

have investigated the affirmative defense of impaired mental condition, even after

Mr. Jones was found competent to stand trial. 3 In Strickland, the Supreme Court

stated that “counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations 

. At the same time, the Court also instructed that “[i]n any ineffectiveness


      3
        Colorado defines “impaired mental condition” as “a condition of mind,
caused by mental disease or defect that prevents the person from forming the
culpable mental state that is an essential element of any crime charged.” Colo.
Rev. Stat. § 16-8-102(2.7)(a).

                                         -4-
case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel’s judgments.” 

district court noted, the record in this case reveals that, prior to Mr.

Jones’s plea, trial counsel successfully sought a court-appointed psychiatrist to

conduct a competency examination of Mr. Jones, and that psychiatrist eventually

found Mr. Jones competent to stand trial. The record further indicates that trial

counsel raised the competency issue to “make sure [he] wasn’t missing

something,” and not in response to any specific behavior by Mr. Jones. R. at 290-

91. In fact, trial counsel testified that Mr. Jones “[f]rom the beginning” had

“displayed an understanding of what was happening, [and] what the defense

would be.” R. at 290. Before the district court, Mr. Jones failed to identify any

evidence in the record that would have warranted trial counsel’s further inquiry

into his mental state or prompted trial counsel to question his mental condition at

the time the offenses were committed. Accordingly, the district court correctly

concluded that there is no basis for finding that trial counsel’s decision not to

pursue the defense of impaired mental condition, after a reasonable investigation,

was objectively unreasonable. See United States ex rel. Rivera v. Franzen, 

, 317 (7th Cir. 1986) (“The Sixth Amendment does not require a defense

attorney to pursue defenses that are not reasonably suggested by the apparent




                                         -5-
factual circumstances surrounding the crime charged or the subsequent demeanor

and conduct of the client.”).

      As to his third claim, Mr. Jones argues that the state trial court erred when,

in denying his ineffective assistance of counsel claims, it applied the standard set

forth in Strickland v. Washington, 

, instead of the standard

articulated in Hill v. Lockhart, 

. However, as the district court

correctly observed, the Supreme Court in Hill did nothing more than apply the

Strickland standard to claims of ineffective assistance in the context of a guilty

plea. See 

(“Although our decision in Strickland . . . dealt

with a claim of ineffective assistance of counsel in a capital sentencing

proceeding, . . . the same two-part standard seems to us applicable to ineffective-

assistance claims arising out of the plea process.”); see also Laycock v. State of

New Mexico, 

, 1187 (10th Cir. 1989) (“Although [Strickland was]

proposed in the capital sentence context, the Supreme Court has extended this test

[in Hill] to guilty plea challenges based on ineffective assistance of counsel.”).

The tests articulated in Hill and Strickland are substantively the same, and so the

state trial court could not have erred when it applied one rather than the other.

Indeed, Mr. Jones’s ineffective assistance of counsel claims fail under Hill for the

same reasons they fail under Strickland, and thus Mr. Jones cannot show the

denial of a constitutional right.




                                         -6-
      Finally, Mr. Jones’s fourth claim, challenging his state post-conviction

evidentiary hearing as unfair, is not cognizable in a federal habeas proceeding.

Under § 2254, a petitioner may obtain relief only for errors in the state judgment

forming the basis for incarceration. See Hassine v. Zimmerman, 

,

954 (3d Cir. 1998) (“[T]he federal role in reviewing an application for habeas

corpus is limited to evaluating what occurred in the state or federal proceedings

that actually led to the petitioner’s conviction”). Federal habeas relief does not

exist to remedy defects in the state post-conviction proceeding, a proceeding

collateral to detention. See United States v. Dago, 

, 1248 (10th Cir.

2006) (“[D]ue process challenges to post-conviction procedures fail to state

constitutional claims cognizable in a federal habeas proceeding.”); Sellers v.

Ward, 

, 1339 (10th Cir. 1998) (“[B]ecause the constitutional error

[the defendant] raises focuses only on the State’s post-conviction remedy and not

the judgment which provides the basis for his incarceration, it states no

cognizable federal habeas claim.”).

      Because the district court correctly determined that Mr. Jones has failed to

make “a substantial showing of the denial of a constitutional right,” 28 U.S.C.




                                         -7-
§ 2253(c)(2), the application for a COA is denied, and this appeal is dismissed.

His motion for leave to proceed in forma pauperis is granted. 4

                                       ENTERED FOR THE COURT


                                       Neil M. Gorsuch
                                       Circuit Judge




      4
         Having reviewed Mr. Jones’s submissions, we conclude that Mr. Jones’s
appeal is timely under the prison mailbox rule articulated in Federal Rule of
Appellate Procedure 4(c)(1). See Price v. Philpot, 

, 1164-67 (10th
Cir. 2005).

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