FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                          May 22, 2015
                       _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
MARK R. ASHLEY,

       Petitioner - Appellant,

v.                                                  No. 15-1026
                                           (D.C. No. 1:14-CV-00239-REB)
TRAVIS TRANI, Warden; THE                          (D. Colorado)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

       Respondents - Appellees.


                       _________________________________

      ORDER DENYING A CERTIFICATE OF APPEALABILITY
               AND DISMISSING THE APPEAL
                 _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

     According to the State of Colorado, Mr. Mark Ashley threatened a

woman with a knife, ordered her to accompany him to an unlit area,

sexually assaulted her, and took $20 from her. Following a jury trial, Mr.

Ashley was convicted in state court of kidnapping, sexual assault, and

robbery. After appealing in state court, Mr. Ashley sought federal habeas

relief. The federal district court denied relief, and Mr. Ashley wants to

appeal the denial of habeas relief on grounds involving ineffective

assistance of counsel and failure to submit sentencing factors to the jury.
Concluding that all reasonable jurists would find these appeal points

meritless, we dismiss the appeal.

                Request for a Certificate of Appealability

      To appeal, Mr. Ashley needs a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(A) (2012). For the certificate, Mr. Ashley must make “a

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

§ 2253(c)(2) (2012). This showing exists only if reasonable jurists could

characterize the district court’s rulings as debatable or wrong. Slack v.

McDaniel, 

, 484 (2000); Laurson v. Leyba, 

,

1232 (10th Cir. 2007). We conclude the rulings are not reasonably

debatable.

I.    Deference to the State Appellate Court’s Legal Conclusions and
      Factual Findings

      Colorado’s highest court decided Mr. Ashley’s claims on the merits.

Thus, we must grant deference to the state appellate decision. The type of

deference turns on the legal or factual nature of the claim.

      On legal issues, we can address the merits only if the state appellate

court’s adjudication of the merits was contrary to or an erroneous

application of clearly established federal law. 28 U.S.C. § 2254(d)(1)

(2012). In applying this standard, we defer to the state court’s decision so

long as there is a possibility that fair-minded jurists might agree with the




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state court’s application of Supreme Court precedents. Nevada v. Jackson,

__ U.S. __, 

, 1992 (2013) (per curiam).

      On factual issues, we again exercise deference. For these issues, we

can consider the merits only if the state appellate court made an

unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2) (2012).

The state court’s findings are presumptively correct, subject to rebuttal

only if the contrary evidence is clear and convincing. 28 U.S.C.

§ 2254(e)(1) (2012).

II.   Ineffective Assistance of Counsel

      Mr. Ashley alleges ineffective assistance of counsel, invoking the

state and federal constitutions. The state claims cannot support a federal

writ of habeas corpus. Rael v. Williams, 

, 1154 (10th Cir.

2000). On the federal claims involving ineffective assistance of counsel,

Mr. Ashley needed to show that his trial counsel had been deficient and

that this deficiency had resulted in prejudice. United States v. Cruz, 

, 1284 (10th Cir. 2014). Deficiency and prejudice involve mixed

questions of fact and law. Strickland v. Washington, 

, 698

(1984). In addressing these questions, we conclude that no jurist could

legitimately question the reasonableness of the state appellate court’s

application of Supreme Court precedent or determination of factual issues.




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        A.   Trial Counsel

        Mr. Ashley argues that his counsel (1) provided ineffective

assistance because his counsel failed to communicate and had a conflict of

interest, and (2) the trial court should have appointed new counsel. These

claims are not reasonably debatable.

        These claims require a showing of a “complete breakdown of

communication.” See United States v. Soto Hernandez, 

,

1328 (10th Cir. 1988) (explaining that for an ineffective assistance of

counsel claim, “a complete breakdown in communication between an

attorney and client” may give rise to a presumption of ineffectiveness);

United States v. Lott, 

, 1250 (10th Cir. 2002) (after a total

breakdown in communication, the failure to appoint new counsel may

“constitute a denial of counsel in violation of the Sixth Amendment”). Mr.

Ashley must (1) demonstrate that there was a “severe and pervasive

conflict with his attorney,” or (2) show evidence of “such minimal contact

with the attorney that meaningful communication was not possible.” 

        The Colorado Court of Appeals rejected the claims on factual

grounds, concluding that there was not a complete breakdown in

communication or a conflict of interest. R. at 265. These findings are




                                       4
presumptively correct, 1 and Mr. Ashley has not presented any contrary

evidence. Thus, no reasonable jurist could conclude that Mr. Ashley has

rebutted the state court’s findings with clear and convincing evidence. See

28 U.S.C. § 2254(e)(1) (2012).

      Mr. Ashley also claims that his attorney did not discuss trial strategy

with him and “conced[ed] guilt without [his] knowledge or expressed

consent.” Appellant’s Opening Br. at 3. The state district court rejected

this claim, explaining that Mr. Ashley was not credible. Hr’g Post-Conv.

App. at 68 (Dec. 3, 2010). The Colorado Court of Appeals upheld this

ruling, reasoning that

           Mr. Ashley was not credible, and

           defense counsel had not conceded wrongful conduct until Mr.
            Ashley decided not to testify.

R. at 272-75.

      Once Mr. Ashley decided not to testify, his attorney could reasonably

decide to admit an attempt to commit a sexual assault. See Lott v.

Trammell, 

, 1187 (10th Cir. 2013), cert. denied, __ U.S. __,

(2013) (stating that counsel’s concessions did not reflect

deficient legal representation because the concessions boosted counsel’s

credibility); Turrentine v. Mullin, 

, 1207-09 (10th Cir. 2004)

(counsel’s concession of guilt did not reflect deficient representation


1
      See 28 U.S.C. § 2254(e)(1) (2012).
                                      5
because it preserved counsel’s credibility at sentencing). By then, a

forensic expert had matched DNA on the victim’s underwear to Mr. Ashley

and the victim had identified him as the rapist. Trial Tr. at 270, 376, 404.

Thus, the attorney reasonably decided to concede that Mr. Ashley had

attempted a sexual assault.

       In these circumstances, any reasonable jurist would conclude that the

Colorado Court of Appeals acted reasonably in rejecting the claim of

ineffective assistance of trial counsel.

       B.   Post-Conviction Counsel

       In one sentence, Mr. Ashley argues that his post-conviction counsel

was deficient by not having an expert testify at the hearing on his post-

conviction application. Appellant Br. at 6. Mr. Ashley did not raise this

argument in district court, and “we do not [ordinarily] address arguments

presented for the first time on appeal.” United States v. Mora, 

, 1216 (10th Cir. 2002). Even if we were to entertain this claim,

however, it would fail because Mr. Ashley provides no explanation or

support. Thus, the new claim is not reasonably debatable.

III.   Sentencing

       Mr. Ashley also argues that his sentence was too harsh under the

state and federal constitutions. He does not dispute that there was a

preponderance of evidence to support the sentencing factors, but contends

that they should have been submitted to a jury.

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      Reliance on the state constitution is misguided because habeas relief

must be based on violation of a federal right rather than a state right. See

p. 3, above.

      The federal claim is also meritless. The Supreme Court stated in

Apprendi v. New Jersey that “any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury and

proved beyond a reasonable doubt.” 

, 490 (2000). But

Apprendi applies only when the sentencing factors would increase the

statutory maximum. United States v. Willis, 

, 1131 n.3 (10th

Cir. 2007).

      Because the sentencing factors at issue did not increase the statutory

maximum, Apprendi did not require jury findings. Thus, in reviewing the

sentence, no jurist could legitimately question the reasonableness of the

state appellate court’s application of Supreme Court precedent or

determination of factual issues.

                             In Forma Pauperis

      Mr. Ashley also seeks leave to proceed in forma pauperis. Because

we have dismissed the appeal, the application for pauper status is

dismissed on the ground of mootness. See Johnson v. Keith, 

,




                                      7
1136 (10th Cir.), cert. denied, __ U.S. __, 

(10th Cir. 2013).




                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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