Filed: Oct. 24, 2013
Latest Update: Mar. 28, 2017
Summary: FILED, United States Court of Appeals, UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 24, 2013
Elisabeth A. Shumaker, Clerk of Court, DANIEL L. ROSALES
Petitioner Appellant
v. No. 13-1183, (D.C. No. 1:10-CV-03101-CMA), KEVIN MILYARD; JOHN SUTHERS, (D. Colo.)
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 24, 2013
Elisabeth A. Shumaker
Clerk of Court
DANIEL L. ROSALES,
Petitioner - Appellant,
v. No. 13-1183
(D.C. No. 1:10-CV-03101-CMA)
KEVIN MILYARD; JOHN SUTHERS, (D. Colo.)
The Attorney General of the State of
Colorado,
Respondent - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Daniel L. Rosales, a Colorado state prisoner proceeding pro se,1 seeks a certificate
of appealability (“COA”) to appeal the district court’s dismissal of his 28 U.S.C. § 2254
habeas petition. See 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal the denial of a
habeas application). Mr. Rosales also requests leave to proceed in forma pauperis
*This order is not binding precedent, except under the doctrines of law of the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
Because Mr. Rosales is proceeding pro se, we construe his filings liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). “[T]his rule of liberal construction stops,
however, at the point at which we begin to serve as his advocate.” United States v.
Pinson,
584 F.3d 972, 975 (10th Cir. 2009).
(“ifp”). Exercising jurisdiction under 28 U.S.C. § 1291, we deny both requests and
dismiss this matter.
I. BACKGROUND
A. State Court Proceedings
In November 2002, a Colorado state court jury found Mr. Rosales guilty of two
counts of first degree murder after deliberation, two counts of first degree felony murder,
one count of first degree burglary, one count of second degree assault, and one count of
violating a restraining order. See People v. Rosales, 134 P.3d 429, 431 (Colo. App. Aug.
11, 2005). The evidence showed that on the night of the murders, Mr. Rosales beat his
girlfriend, then took a shotgun and drove to his estranged wife’s apartment. Mr. Rosales
broke into the apartment by firing two shots to disable locks on the apartment door. He
then reloaded his gun on his way to the bedroom, where he discovered his estranged wife
with the man she had been dating. Mr. Rosales shot and killed them both. Id.
Mr. Rosales was sentenced to two concurrent life sentences for murder, a
concurrent prison term of thirty-two years for burglary, a consecutive term of sixteen
years for assault, and a concurrent term of eighteen months for violating the restraining
order. The state trial court additionally ordered restitution in February 2003, a month
after Mr. Rosales filed his notice of direct appeal. Id.
On direct appeal, the Colorado Court of Appeals (“CCA”) affirmed Mr. Rosales’s
conviction and remanded the case to the trial court with instructions to amend the
mittimus to include an order of restitution. Id. at 436. The Colorado Supreme Court
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denied Mr. Rosales’s petition for certiorari. See Rosales v. People, No. 05SC684, 2006
WL 1688339 (Colo. May 22, 2006).
Mr. Rosales next filed a postconviction motion pursuant to Rule 35(c) of the
Colorado Rules of Criminal Procedure. The state trial court denied that motion. The
CCA affirmed denial, see People v. Rosales, No. 07CA1881 (Colo. App. Mar. 26, 2009),
and the Colorado Supreme Court denied certiorari. See Rosales v. People, No.
2009SC409 (Colo. Sept. 7, 2010) (en banc).
All of the claims for which Mr. Rosales seeks COA were presented to and
adjudicated by the Colorado courts and therefore were exhausted for purposes of habeas
review.
B. Federal Habeas Petition
Mr. Rosales asserted nine claims at the district court, the first six of which he
continues to assert in his application for COA:
(1) Trial court error in allowing a faulty jury instruction on self-induced intoxication;
(2) Prosecutorial misconduct in closing argument;
(3) Lack of trial court jurisdiction to impose restitution;
(4) Trial court error in imposing restitution after Mr. Rosales sold his house;
(5) Double Jeopardy Clause and Due Process violations in imposing restitution;
(6) Ineffective assistance of trial counsel;
(7) Trial court error in not holding an evidentiary hearing during the postconviction
proceeding;
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(8) The postconviction court’s violation of state civil and criminal rules in denying
Mr. Rosales’s request to amend his Rule 35(c) motion as well as his request for an
evidentiary hearing; and
(9) Ineffective assistance of postconviction counsel.
The district court produced a thorough order examining each of Mr. Rosales’s
claims. See Rosales v. Milyard, No. 10-cv-03101-CMA, 2013 WL 1302657, at *1 (D.
Colo. Mar. 29, 2013) (unpublished) (hereinafter “Dist. Ct. Order.”). The district court
denied Claims One, Two, Six, and Seven for lack of merit. It denied Claims Three, Four,
and Five for lack of jurisdiction, holding that restitution payments are not the sort of
restraint on liberty contemplated by the “in custody” requirement of § 2254(a). Finally,
the district court held that Claims Eight and Nine failed to state cognizable federal habeas
claims.
The district court further denied COA, holding that Mr. Rosales had not made a
substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.
§ 2253(c). It also certified that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal of its
order would not be taken in good faith and ifp status should therefore be denied on
appeal.
II. DISCUSSION
Mr. Rosales may not appeal the district court’s denial of his § 2254 petition
without a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Clark v.
Oklahoma,
468 F.3d 711, 713 (10th Cir. 2006). To obtain a COA, Mr. Rosales must
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make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make this showing, Mr. Rosales must demonstrate “that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude that the issues presented are adequate to deserve
encouragement to proceed further.” Dulworth v. Jones, 496 F.3d 1133, 1136-37 (10th
Cir. 2007) (quotations omitted).
As the district court noted, federal habeas review of state court decisions is
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
AEDPA provides that if a state court adjudicated the merits of a claim, a federal court
cannot grant habeas relief unless the state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1); or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding,” id. § 2254(d)(2). When deciding whether to grant a COA, we are
required to “look to the District Court’s application of AEDPA to petitioner’s
constitutional claims and ask whether that resolution was debatable among jurists of
reason.” Miller-El, 537 U.S. at 366.
In his application for COA, Mr. Rosales reasserts the first six claims that he
presented in his habeas petition at the district court. We address each of these claims in
turn.
A. Claim One
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Mr. Rosales asserts in Claim One that the state trial court used a faulty jury
instruction on self-induced intoxication. According to Mr. Rosales, he was heavily
intoxicated the night of the murders. See Aplt. Br. at iii. He contends that although self-
induced intoxication is not an affirmative defense in Colorado, it can reduce the level of
culpability associated with an act if the factfinder determines that the state has failed to
satisfy its burden of proof as to the mens rea of specific intent.
Mr. Rosales contends that the jury instruction2 in his case was erroneous because:
(1) it improperly focused on whether, as a result of his intoxication, he lacked the
capacity to form specific intent, rather than whether he had in fact formed specific intent;
(2) it failed to instruct the jury that it must consider evidence of self-induced intoxication,
stating only that it “may” consider such evidence; (3) it misled the jury by suggesting that
2
The jury was instructed that they
may consider evidence of self-induced intoxication in determining whether
or not intoxication negates the existence of the particular state of mind of
with intent, which is also known as specific intent or after deliberation, and
with intent. The prosecution has the burden of proving all of the elements
of the crimes charged. If you find the defendant was intoxicated to such a
degree that he did not form the specific intent which is a required element
of the crimes of first-degree murder, amended counts 1, 2, 3, and 4; first-
degree burglary, Count 5; and second-degree assault, Count 7, you should
find defendant not guilty of those charges. Self-induced intoxication is not
applicable to the state of mind of knowingly, which is an element of the
general intent crimes of the lesser included offense of murder in the second
degree, lesser included offense of first-degree criminal trespass,
kidnapping, Count 6, violation of restraining order, Count 8; and violent
crime enhancers, which are counts 9 and 10.
Dist. Ct. Order at *7 (quoting Rosales, No. 01CR3022, Trial Tr., Nov. 20, 2002, at 63-
64).
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the jury may not take evidence of intoxication into account unless the prosecution proves
beyond a reasonable doubt that his intoxication was so severe that he could not form
specific intent; and (4) the CCA on direct appeal admitted the instruction was an incorrect
statement of law but failed to correct the harm it caused.
The CCA considered Mr. Rosales’s jury instruction claim both on direct appeal
and on post-conviction review. It denied Mr. Rosales’s claim in both instances. See
Rosales, 134 P.3d at 433-34; Rosales, No. 07CA1881 at 6-8.
“Claims of erroneous jury instructions can justify setting aside a state conviction
on habeas only if ‘the errors had the effect of rendering the trial so fundamentally unfair
as to cause a denial of a fair trial in the constitutional sense, or is otherwise
constitutionally objectionable as, for example, by transgressing the constitutionally
rooted presumption of innocence.’” Dockins v. Hines, 374 F.3d 935, 938-39 (10th Cir.
2004) (quoting Brinlee v. Crisp,
608 F.2d 839, 854 (10th Cir. 1979)).
The district court concluded that Mr. Rosales failed to make this required showing.
Specifically, it held that (1) the jury instruction properly directed jurors to determine if
Mr. Rosales had in fact formed specific intent, in keeping with Colorado law, see People
v. Versteeg, 165 P.3d 760, 766-68 (Colo. App. 2006);3 (2) Mr. Rosales’s argument that
3
Mr. Rosales argues the district court failed to mention that People v. Harlan, 8
P.3d 448 (Colo. 2000) (en banc), overruled on other grounds by People v. Miller,
113
P.3d 743 (Colo. 2005) (en banc), requires juries to be instructed that they “must” consider
evidence of self-induced intoxication. But Harlan states no such requirement. It merely
requires that if a jury receives an instruction on intoxication, it should be instructed to
Continued . . .
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the instruction should have said the jurors “must” rather than “may” consider evidence of
self-induced intoxication was “without basis,” Dist. Ct. Order at *7, because Mr. Rosales
did not show that the jury disregarded the instruction to consider all evidence; and (3)
nothing in the jury instruction reduced the prosecution’s burden of proof. Finally, after
reviewing the CCA’s opinion on direct appeal “with close scrutiny,” the district court
could find no admission in the CCA’s opinion that the instruction was an incorrect
statement of law. Id. at *8. We agree with this analysis.
We conclude that jurists of reason could not disagree with the district court’s
denial of Claim One and deny COA.
B. Claim Two
Mr. Rosales asserts in Claim Two that the prosecution committed misconduct in
closing argument by urging the jury to nullify the law regarding self-induced
intoxication. In his request for COA, Mr. Rosales does not challenge the district court’s
reasoning in denying this claim. Rather, he repeats his contentions from his habeas
petition. Mr. Rosales argues that the prosecution improperly suggested to the jury that
acquitting Mr. Rosales of first degree murder would reward his intoxication. He also
claims prejudice from the CCA’s plain error review of this issue. The CCA applied plain
error review on direct appeal because trial counsel did not raise contemporaneous
consider whether the defendant had in fact formed specific intent, and not whether the
defendant lacked capacity to form specific intent. Id. at 471.
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objections to the improper statements. See Rosales, 134 P.3d at 434-36.
A prosecutor’s improper statement amounts to prosecutorial misconduct only if it
“so infected the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo,
416 U.S. 637, 643 (1974)). This determination must be based on the
totality of the circumstances. See Jackson v. Shanks,
143 F.3d 1313, 1322 (10th Cir.
1998). “Inappropriate prosecutorial statements, standing alone, would not justify a
reviewing court” granting relief on a claim of prosecutorial misconduct. United States v.
Young,
470 U.S. 1, 11 (1985).
The district court concluded that Mr. Rosales has not shown that the alleged
prosecutorial misconduct was egregiously unfair, or that the prosecutor’s comments
amounted to “jury nullification,” defined as “a violation of a juror’s oath to apply the
law.” Dist. Ct. Order at *10 (quoting United States v. Thomas, 116 F.3d 606, 614 (2d
Cir. 1997)). We agree with the district court that the CCA’s denial of the claim satisfies
AEDPA review. Reasonable jurists would not find this conclusion debatable. We
therefore deny COA.
C. Claims Three, Four, and Five
In Claims Three, Four, and Five, Mr. Rosales challenges the trial court’s
imposition of restitution after he had filed his notice of appeal. Mr. Rosales argues that
he has been ordered to pay the same restitution twice, in violation of his due process
rights and constitutional protection against double jeopardy. The district court dismissed
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these claims for lack of jurisdiction. In his request for COA, Mr. Rosales does not
explain why he challenges the district court’s reasoning. He merely maintains that he
complied with exhaustion and notice requirements and that the district court’s refusal to
address these claims on the merits itself violates his due process rights.
The district court properly held that a restitution payment is not the sort of
significant restraint on liberty contemplated by 28 U.S.C. § 2254(a), which grants federal
court jurisdiction over an application for habeas “of a person in custody pursuant to the
judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States” (emphasis added). See Erlandson v.
Northglenn Mun. Court, 528 F.3d 785, 788 (10th Cir. 2008). Because the “in custody”
language of § 2254(a) is jurisdictional, id., the district court correctly concluded that it
lacked subject matter jurisdiction over Claims Three, Four, and Five. We deny COA on
these claims.
D. Claim Six
In Claim Six, Mr. Rosales alleges ineffective assistance of counsel resulting from
trial counsel’s failure to (1) investigate Mr. Rosales’s intoxication the night of the
murders; (2) interview jail intake personnel regarding Mr. Rosales’s intoxication level;
(3) present a provoked heat of passion defense; (4) obtain independent blood analysis;
(5) advise Mr. Rosales before he waived his right to testify that only one witness would
testify for the defense; (6) object to the intoxication instruction; and (7) object to the
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prosecution’s statements during closing argument.4
To establish a Sixth Amendment violation for ineffective assistance of counsel, a
petitioner must establish that (1) counsel’s performance fell below an objective standard
of reasonableness and (2) counsel’s deficient performance resulted in prejudice to his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at
689. Petitioner must overcome a strong presumption that counsel’s representation was
reasonable with evidence that counsel made errors so serious as to violate the defendant’s
Sixth Amendment right to counsel. See Harrington v. Richter, 131 S. Ct. 770, 787
(2011).
As to prejudice, a petitioner must establish “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not
just conceivable.” Richter, 131 S.Ct. at 792 (citing Strickland, 466 U.S. at 693).
Under AEDPA, “[t]he pivotal question is whether the state court’s application of
the Strickland standard was unreasonable.” Id. at 785. Rather than asking whether
4
The district court determined that three additional subclaims asserting ineffective
assistance of trial counsel in Mr. Rosales’s original petition were procedurally barred.
These subclaims contended that trial counsel failed to (1) interview Mr. Rosales’s
girlfriend regarding his assault of her; (2) object to the prosecution’s comments during
voir dire; and (3) object to inadmissible prior act evidence. Dist. Ct. Op. at *2. Mr.
Rosales does not attempt to raise these claims in his request for COA, and we do not
address them.
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defense counsel’s performance fell below the Strickland standard, we ask “whether there
is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id.
at 788. The CCA, affirming denial of Mr. Rosales’s post-conviction challenge, rejected
all of his ineffective assistance claims. See Rosales, 07CA1881. So long as the CCA
reasonably applied the Strickland standard to these claims, habeas relief is not available.
1. Subclaims (i) and (ii): Investigation and Interviews
Mr. Rosales alleges that trial counsel failed to investigate his intoxication level
and interview jail intake personnel regarding his intoxication. Specifically, he asserts that
trial counsel never investigated his history of alcohol abuse and should have called
witnesses who could testify that he was staggering and slurring his words the night of the
murders. He also contends that counsel should have obtained a copy of his bar tab from
one of the bars where he was drinking the night of the murders to establish how much
alcohol he had consumed. Similarly, he argues that counsel should have interviewed the
intake case manager at the Jefferson County Jail, who had told him that his blood alcohol
content (“BAC”) was very high when he was admitted to the jail.
Trial counsel “has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466
U.S. at 691. The district court concluded that obtaining copies of Mr. Rosales’s bar tabs
was not a reasonably necessary investigation because a bar itemizes how much an
individual paid for beverages and/or food but not how much alcohol he actually
consumed. It also held that Mr. Rosales has not presented evidence that trial counsel was
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ineffective in failing to investigate his prior drug and alcohol abuse, and that Mr. Rosales
has not established that trial counsel did not ask the jail intake manager or those who saw
him drinking to testify. The district court concluded that Mr. Rosales had not provided
sufficient support to overcome the strong presumption of counsel’s reasonable
representation.
The district court further held that even if Mr. Rosales could show that trial
counsel was deficient in failing to investigate these issues, Mr. Rosales was not
prejudiced. As the district court noted, the evidence against Mr. Rosales at trial was
overwhelming. Witnesses testified that Mr. Rosales drank regularly, often beat his wife
and made disparaging remarks about her and—after their estrangement—about her
boyfriend. They also testified that Mr. Rosales stated he wanted to kill his estranged wife
and was jealous of her boyfriend. Forensic evidence indicated Mr. Rosales shot at the
locks on his wife’s apartment door, then was able to quickly reload his shotgun and
proceed to the bedroom to shoot the victims before they could escape. Given this
overwhelming evidence, the district court held that Mr. Rosales had not established that
trial counsel’s failures prejudiced him.
Mr. Rosales now contends that the district court was wrong to conclude that the
bar tab investigation was unnecessary. He argues that evidence of his bar tab, when
combined with interviews of witnesses who could testify to how much he was drinking,
would lead to an accurate assessment of his BAC at the time the crimes took place. He
also argues that counsel failed to contact potential witnesses to find out whether they
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could testify.
Because Mr. Rosales has not shown he was prejudiced by trial counsel’s actions
under the second part of the Strickland standard, 466 U.S. at 692, his arguments do not
suffice to demonstrate that reasonable jurists “could disagree with the district court’s
resolution of [Mr. Rosales’s] constitutional claims or that jurists could conclude that the
issues presented are adequate to deserve encouragement to proceed further.” Dulworth,
496 F.3d at 1137 (quotations omitted). The district court’s analysis confirms and it is not
debatable that the CCA reasonably applied the Strickland standard. We therefore deny
COA on this issue.
2. Subclaim (iii): Failure to Present a Provoked Heat of Passion Defense
Mr. Rosales argues that trial counsel was ineffective because he did not pursue a
“provoked heat of passion” defense. Mr. Rosales argues that he was “in an extreme state
of emotional outrage” aggravated by his intoxication just before he drove to his estranged
wife’s apartment. Aplt. Br. at 41. He contends that he did not know that his estranged
wife’s boyfriend would be present when he went to the apartment, and that when he
found him in bed with his estranged wife, he was propelled into a state of “extreme
emotional upheaval.” Id. at 43. Mr. Rosales asserts that trial counsel should have sought
a jury instruction regarding the heat of passion defense under Colorado law, which
mitigates second degree murder when “performed upon a sudden heat of passion, caused
by a serious and highly provoking act of the intended victim.” See Colo. Rev. Stat. § 18-
3-103(3)(b).
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The district court reviewed the CCA’s holding regarding the heat of passion
defense. The CCA stated that the facts of Mr. Rosales’s case do not support a theory that
Mr. Rosales acted in a sudden heat of passion after a highly provoking act of the victim.
Rosales, No. 07CA1881 at 16-17. As the CCA noted, Mr. Rosales beat his girlfriend,
then obtained a shotgun, drove to the home of his estranged wife, shot the locks off her
door, and reloaded his weapon before even entering her bedroom and finding her with
another man. Mr. Rosales also knew for quite some time that his wife had been seeing
another man, and he had told others on multiple occasions in the months preceding the
murders that he wanted to kill his wife. The district court agreed with the CCA that “[t]he
evidence was overwhelming that [Mr. Rosales] intended to murder his wife before he
even entered the bedroom in her apartment.” Dist. Ct. Order at *17.
Mr. Rosales argues in his request for COA that under Colorado law, a defendant is
entitled to an affirmative defense instruction whenever there is a “scintilla of evidence” to
support that defense. See, e.g., People v. Jones, 677 P.2d 383, 385 (Colo. App. 1983),
rev’d on other grounds,
711 P.2d 1270 (Colo. 1986) (en banc). He contends that trial
counsel should have sought a heat of passion instruction based on evidence that Mr.
Rosales and his wife had engaged in marital sexual relations during their separation and
were trying to salvage their marriage. Mr. Rosales argues he naturally would have been
enraged to find his wife in bed with another man. He further asserts that his aggressive
behavior in breaking into his wife’s apartment “indicate[s] at least a modicum of rage on
his part.” Aplt. Br. at 43.
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We agree with the district court that the CCA’s decision regarding counsel’s
failure to pursue the heat of passion defense was not “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding[s].” 28 U.S.C. § 2254(d)(2). Jurists of reason could not debate the district
court’s conclusion that trial counsel cannot be found ineffective for having failed to
present a defense that was not supported by the facts.
Even if Mr. Rosales could have been entitled to a jury instruction on the heat of
passion defense based on a scintilla of evidence, he has not demonstrated that trial
counsel’s failure to raise the defense in the first place amounts to ineffective assistance.
As the district court and the CCA noted, there was ample evidence of Mr. Rosales’s
premeditation, including his statements on several occasions in the months preceding the
murders that he wanted to kill his wife. Mr. Rosales has not demonstrated that trial
counsel’s failure to raise the heat of passion defense was unreasonable or that it
prejudiced him at trial. The district court’s AEDPA review of this claim would not be
debatable among jurists of reason. We therefore deny COA on this issue.
3. Subclaim (iv): Independent Blood Analysis
Mr. Rosales contends that trial counsel failed to present a blood alcohol report to
the jury and to call an expert to provide scientific evidence regarding his level of
intoxication.
The district court noted that Mr. Rosales failed to explain what the expert
testimony would have shown about his ability or inability to form the required specific
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intent. It also noted that during a pretrial hearing, the prosecution produced an expert
who provided testimony regarding the effects of alcohol on Mr. Rosales’s behavior
before and after the murders. The expert testified that Mr. Rosales exhibited signs of a
high tolerance for alcohol and that he demonstrated rational thought processes in
statements he made soon after the murders. The district court concluded that, because the
prosecution’s addiction psychiatry expert could testify at trial to Mr. Rosales’s high
tolerance, defense counsel could not be found ineffective for not calling an expert to
testify regarding Mr. Rosales’s intoxication level. It also noted that Mr. Rosales failed to
demonstrate how the BAC report—which was taken twelve hours after the murders—
would be relevant to his level of intoxication at the time of the murders.
Mr. Rosales now argues that the district court was incorrect to focus on trial
counsel’s failure to produce the existing BAC report. He contends instead that trial
counsel could have obtained information to determine his BAC at the time of the
shootings by using an expert witness to extrapolate his BAC from bar tab and eyewitness
evidence. He also contends that counsel failed to obtain an expert equipped to rebut the
prosecution’s own expert evidence.
Apart from whether Mr. Rosales should be allowed to raise these arguments at this
stage, he still has failed to show that the CCA unreasonably determined that trial counsel
was not ineffective in failing to present this BAC evidence at trial. Even if Mr. Rosales
could make that showing, he has produced no evidence that trial counsel’s failure
prejudiced him in light of the overwhelming evidence against him. We therefore deny
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COA on this issue.
4. Subclaim (v): Failure to Advise that Only One Witness Would Be Called for
Defense
Mr. Rosales asserts that trial counsel listed seventeen people on the defense
witness list but only called one witness. He contends that he would not have waived his
right to testify if he had known that only one witness would appear on his behalf. He
argues that he would have testified about how much he had been drinking on the night of
the murders, as well as his prior drug use and depression.
As the district court stated, the trial court thoroughly advised Mr. Rosales of his
right to testify, and Mr. Rosales stated at trial that he was not pressured or coerced in
deciding not to testify. Even if trial counsel acted unreasonably by calling only one
witness, Mr. Rosales has provided no evidence that he was prejudiced by trial counsel’s
decision.
We agree with the district court’s analysis for substantially the same reasons and
conclude that reasonable jurists would not debate the district court’s denial of this claim.
We deny COA on this issue.
5. Subclaims (vi) and (vii): Intoxication Instruction and Prosecution’s Comments
Finally, Mr. Rosales asserts that counsel failed to object to an erroneous
intoxication instruction and nullifying statements made by the prosecution alleged in
Claims One and Two. [Aplt. Br. at 24.] Based on our and the district court’s earlier
consideration of those two claims, Mr. Rosales was not prejudiced by trial counsel’s
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failure to object. Dist. Ct. Order at *18. We hold that reasonable jurists would not
debate the district court’s conclusion that the CCA’s denial of these claims was
reasonable. A COA is therefore denied.
III. CONCLUSION
We deny Mr. Rosales’s request for a COA and dismiss this matter. We also deny
his motion to proceed ifp.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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