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

                                      TENTH CIRCUIT                               June 20, 2017

                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
 LARRY FULLER,

           Petitioner - Appellant,

v.                                                            No. 17-1063
                                                       (D.C. No. 1:16-CV-00891-RBJ)
 WARDEN, Arkansas Valley Correctional                          (D. Colo.)
 Facility; THE ATTORNEY GENERAL
 OF THE STATE OF COLORADO,

           Respondents - Appellees.


                                ORDER DENYING
                         CERTIFICATE OF APPEALABILITY *


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.



       Petitioner Larry Fuller, a pro se1 litigant and Colorado state prisoner, seeks a

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

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He also seeks leave to proceed



       *
        This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
       1
         Because Mr. Fuller is appearing pro se, we “review his pleadings and other
papers liberally and hold them to a less stringent standard than those drafted by
attorneys.” Trackwell v. U.S. Gov’t, 

, 1243 (10th Cir. 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, 

, 975 (10th Cir. 2009).
on appeal in forma pauperis. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

both requests and dismiss this matter.

                                 I.      BACKGROUND

       Mr. Fuller was arrested in July 2008 when police found a suitcase containing a

mobile methamphetamine lab in his possession. In March 2009, a jury convicted Mr.

Fuller of possession of chemicals or supplies to manufacture a controlled substance, in

violation of Colorado Revised Statutes § 18-18-405(1)(a). After determining that Mr.

Fuller was a habitual criminal, the state trial court sentenced him to 96 years’

imprisonment.

       Mr. Fuller filed a direct appeal of his conviction and sentence, raising the

following five contentions: (1) the trial court erred when it denied his motion to suppress;

(2) the prosecution presented insufficient evidence to support his conviction; (3) the trial

court’s sentence of 96 years was constitutionally disproportionate; (4) the trial court

violated his Sixth Amendment right to confrontation; and (5) the trial court violated his

Sixth Amendment right to a jury trial. The Colorado Court of Appeals addressed and

rejected each of these claims and affirmed Mr. Fuller’s conviction and sentence. The

Colorado Supreme Court denied his petition for certiorari.

       Thereafter, Mr. Fuller filed a motion for postconviction relief under Colorado Rule

of Criminal Procedure 35(c), which the state postconviction court summarily denied. Mr.

Fuller then appealed the denial, asserting that (1) his sentence was illegal, (2) police

illegally searched and seized evidence, (3) the jury was not fair and impartial, (4) his

counsel was ineffective, and (5) the prosecution knowingly presented perjured testimony.

                                              2
The Colorado Court of Appeals rejected all of Mr. Fuller’s contentions on either

substantive or procedural grounds, and the Colorado Supreme Court again denied further

review.

       On April 19, 2016, Mr. Fuller timely filed the underlying 28 U.S.C. § 2254 habeas

petition in the United States District Court for the District of Colorado. In the petition, he

asserted eight grounds for relief, which the district court accurately summarized as

follows:

   1. [Mr. Fuller]’s Fourth Amendment rights were violated when the trial court
      failed to suppress the contents of a suitcase that was seized illegally.

   2. [Mr. Fuller]’s Fifth Amendment due process rights were violated when the
      prosecution knowingly presented, and the trial court knowingly allowed the
      jury to hear, perjured testimony by a police officer.

   3. There was insufficient evidence to prove beyond a reasonable doubt that
      [Mr. Fuller] knew the suitcase contained chemicals for making
      methamphetamine.

   4. [Mr. Fuller]’s due process rights under Brady v. Maryland, 

      (1963), California v. Trombetta, 

(1984), and Arizona v.
      Youngblood, 

(1988), were violated by the police’s failure to
      test the suitcase for fingerprints before having it destroyed.

   5. [Mr. Fuller]’s right to an impartial jury under the Sixth and Fourteenth
      Amendments was violated by the trial court’s failure to inquire into the
      prosecutor’s alleged improper and/or ex-parte disclosure of [Mr. Fuller’s]
      prior convictions to the jury.

   6. [Mr. Fuller]’s right to an impartial jury under the Sixth and Fourteenth
      Amendments was violated by the trial court’s mailing of letters to jurors,
      after the defense sought their contact information, ensuring they knew they
      were not required to speak with anyone about their jury service.

   7. [Mr. Fuller]’s right to a jury trial, as interpreted in Blakely v. Washington,
      

(2004), was violated when the trial court, rather than the jury,


                                              3
   made the sentence-enhancing determination that [Mr. Fuller’s] conviction
   constituted his second conviction for such an offense.

8. [Mr. Fuller]’s Sixth Amendment right to the effective assistance of counsel
   was violated when counsel: (1) failed to investigate fully all of the charges
   and evidence against [Mr. Fuller]; (2) failed to obtain expert testimony on
   issues dealing with the chemical make-up and manufacture of
   methamphetamines; (3) failed to consult with experts in the field of [those
   topics]; (4) relied only on the prosecution’s expert witnesses on matters
   relating to [those topics]; (5) failed to inform [Mr. Fuller] that the
   prosecution had given notice of intent to file habitual criminal charges,
   when the prosecution had stated that no [such] charges would be filed if he
   waived his preliminary hearing; (6) failed to request a postponement of the
   preliminary hearing to determine if the prosecutor’s actions in coercing
   and/or inducing [Mr. Fuller] to waive [that] hearing constituted illegal
   and/or unethical behavior; (7) failed to argue that the prosecution had
   illegally coerced and/or induced [Mr. Fuller]’s waiver of [that] hearing;
   (8) failed to adequately argue that the evidence used against [Mr. Fuller]
   was illegally seized; (9) failed to argue that the prosecution knew that [Mr.
   Fuller]’s convictions were obtained through the use of perjured testimony;
   (10) failed to argue that the court knew that [Mr. Fuller]’s convictions were
   [so] obtained . . . ; (11) failed to adequately argue that the evidence against
   [Mr. Fuller] was insufficient to establish his guilt beyond a reasonable
   doubt; (12) failed to adequately argue that the evidence used against [Mr.
   Fuller] was knowingly and intentionally destroyed by [police], thereby
   depriving him of the use of materially exculpatory evidence . . . to prove his
   “actual innocence”; (13) failed to subject the prosecution’s case to
   meaningful adversarial testing; (14) failed to use the photos taken from [a]
   surveillance video to impeach and/or rebut [Officer] Baxter’s testimony
   regarding the suitcase; (15) failed to inform [Mr. Fuller] that the
   prosecution had violated his right to an impartial jury trial when it engaged
   in ex parte communications with the jury; (16) failed to adequately argue
   that the prosecution had violated [that] right [in that way]; (17) failed to
   inform [Mr. Fuller] that the trial judge violated his right to an impartial jury
   trial when he engaged in ex parte communications with the jury; (18) failed
   to adequately argue that the trial judge violated [Mr. Fuller]’s right to an
   impartial jury trial when he engaged in ex parte communication(s) with the
   jury; (19) failed to argue that the trial judge violated [Mr. Fuller]’s right to
   a jury trial on the [count of possessing supplies to manufacture
   methamphetamine] by utilizing facts and evidence not presented to the jury
   in order to substantially modify the sentencing range of [that] count; and,
   (20) met with [Mr. Fuller] only four times over the course of one year for a
   total of two hours.

                                          4
       Upon order of the court, the Colorado state respondents (“Respondents”) filed a

pre-answer response addressing, among other things, whether Mr. Fuller had exhausted

his state-court remedies or procedurally defaulted any of his claims. Respondents

conceded that Mr. Fuller’s Fourth Amendment claim (claim one) was properly exhausted

but argued that his insufficient-evidence claim (claim three) was unexhausted. They

further contended that Mr. Fuller’s remaining claims (claims two, four, five, six, seven,

and eight) were procedurally defaulted.

       On June 15, 2016, the district court entered an order addressing these issues. As

for exhaustion, the district court accepted Respondents’ concession that Mr. Fuller had

exhausted his state-court remedies with respect to claim one but rejected their assertion

that he had not exhausted claim three, concluding instead that he had.2 The district court

further agreed with Respondents that claims two, four, five, six, seven, and eight were

procedurally defaulted. However, the court deferred its ruling on claim eight—which, as

noted, embodied 20 separate allegations of ineffective assistance of counsel—because it

could not determine without the state court record whether that claim fell within the

exception to procedural default recognized in Martinez v. Ryan, 

(2012).3



       2
         Because Respondents do not challenge the district court’s conclusion that claim
three was properly exhausted, and because it does not affect our resolution of Mr. Fuller’s
application for a COA, we assume for present purposes that the district court’s conclusion
was correct.
       3
         The Martinez v. Ryan Court held: “Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a
procedural default will not bar a federal habeas court from hearing a substantial claim of
                                             5
Accordingly, the district court dismissed claims two, four, five, six, and seven with

prejudice, and ordered Respondents to file an Answer addressing (1) the merits of claims

one and three, and (2) whether claim eight fell within the exception from Martinez.

       On January 18, 2017, after additional briefing, the district court issued an order

disposing of Mr. Fuller’s three remaining habeas claims. First, the district court examined

Mr. Fuller’s Fourth Amendment claim (claim 1) and his insufficient-evidence claim

(claim 3), and denied both on the merits. The court then reviewed Mr. Fuller’s 20

ineffective-assistance subclaims (claim 8) and dismissed them all as procedurally barred

because they were not “substantial” within the meaning of Martinez. The district court

therefore denied Mr. Fuller’s § 2254 petition in full and declined to issue a COA. In

addition, the court denied Mr. Fuller leave to proceed in forma pauperis.

       Proceeding pro se, Mr. Fuller timely filed a notice of appeal and a combined

opening brief and application for a COA.

                                  II.     DISCUSSION

       Mr. Fuller seeks a COA for six of the eight claims he raised below, arguing the

district court erred in deeming his second, fifth, sixth, and eighth claims procedurally

barred, and in rejecting his first and third claims on the merits.4 He also asks for leave to

proceed in forma pauperis.




ineffective assistance at trial if, in the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.” 

, 17 (2012).
       4
        Mr. Fuller does not seek to appeal the district court’s denial of the fourth and
seventh claims raised in his § 2254 petition.
                                               6
       We lack jurisdiction to consider the merits of Mr. Fuller’s habeas appeal unless he

obtains a COA, see 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 

, 327

(2003), and we may grant him a COA only if he makes “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2). To make that showing,

Mr. Fuller need not prove the ultimate validity of his claims, but he must show

“something more than the absence of frivolity or the existence of mere good faith on his

. . . part.” 

(internal quotation marks omitted). Specifically,

with respect to claims the district court denied on the merits, Mr. Fuller must

“demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 

, 484 (2000).

And for any claim the district court denied on procedural grounds, Mr. Fuller must show

“that jurists of reason would find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” 

       Here, we conclude Mr. Fuller has not made the requisite showing on any of the

claims for which he seeks a COA, and we therefore deny his application. To explain our

decision, we address each of the relevant claims in turn, beginning with claims dismissed

on procedural grounds before turning to those denied on the merits. Last, we address and

reject Mr. Fuller’s request to proceed in forma pauperis.

            A. Claims the District Court Dismissed on Procedural Grounds

       As noted above, there are two components to the question whether a federal

appellate court should grant a COA for a habeas claim dismissed on procedural grounds:

                                              7
“one directed at the underlying constitutional claim[ itself] and one directed at the district

court’s procedural holding.” Slack v. McDaniel, 

, 485 (2000). Because we

ordinarily “will not pass upon a constitutional question . . . if there is also present some

other ground upon which the case may be disposed of,” we generally address first the

issue of whether the district court’s procedural ruling is reasonably debatable. 

plain procedural bar is present and the district court is correct to invoke it to dispose of

[a claim], a reasonable jurist could not conclude either that the district court erred in

dismissing the [claim] or that the petitioner should be allowed to proceed further [on that

claim].” 

       A claim that has been defaulted in state court on an independent and adequate state

procedural ground generally cannot be considered in a federal habeas proceeding.

Fairchild v. Workman, 

, 1141 (10th Cir. 2009). A state procedural ground

is independent “if it relies on state law, rather than federal law,” 

marks omitted), and it is adequate if it was “firmly established and regularly followed by

the time as of which it is to be applied,” Anderson v. Att’y Gen. of Kan., 

,

1143 (10th Cir. 2003) (internal quotation marks omitted). In addition, a claim that was

not presented in state court, and thus is not exhausted, may nonetheless be subject to

“anticipatory procedural bar” in a federal habeas proceeding. See Frost v. Pryor, 

, 1231 (10th Cir. 2014). Anticipatory procedural bar applies to claims which

were not presented in state court but which “would be procedurally barred under state law

if the petitioner returned to state court to [present them].” Moore v. Schoeman, 

, 1233 n.3 (10th Cir. 2002).

                                               8
       A federal habeas court may consider a procedurally barred claim only if the

petitioner can show either (1) “cause” for failing to properly raise the claim in state court,

and resulting “prejudice”; or (2) that failure to consider the claim in the habeas

proceeding would result in “a fundamental miscarriage of justice.” See Coleman v.

Thompson, 

, 750 (1991); 

.

       Applying these principles here, we conclude reasonable jurists could not debate

the district court’s determinations that Mr. Fuller’s second, fifth, sixth, and eighth claims

are procedurally barred and that Mr. Fuller has not established any exception allowing

those barred claims to be heard anyway.

                                       1. Claim Two

       In claim two, Mr. Fuller argues that his Fifth Amendment due process rights were

violated when the prosecution knowingly presented, and the trial court knowingly

allowed, perjured testimony by a police officer. But as the district court noted, the

Colorado Court of Appeals rejected this claim as procedurally barred for two reasons:

(1) Mr. Fuller did not raise the claim in his state postconviction motion; and (2) he did

not raise the claim on direct appeal. And as the district court explained, both of these

reasons amount to independent and adequate state procedural grounds. See, e.g., Craig v.

People, 

, 965 (Colo. 1999) (“Because [the defendant] did not raise the

specific theories upon which he now relies in his post-conviction motion, they are not

properly before the appellate courts.” (footnote omitted) (citing People v. Simms, 

, 465 (Colo. 1974))); Colo. R. Crim. P. 35(c)(3)(VII) (stating general rule that a

court “shall deny any claim [raised in a postconviction motion] that could have been

                                              9
presented in an appeal previously brought”); see also LeBere v. Abbott, 

,

1233 & n.13 (10th Cir. 2013) (stating that a Colorado appellate court’s denial of a claim

that could have been raised on direct appeal under Colo. R. Crim. P. 35(c)(3)(VII) is an

independent and adequate state procedural ground generally barring federal habeas

review).

       In his brief to this court, Mr. Fuller does not challenge the district court’s

conclusion that these alternative rationales are independent and adequate state procedural

grounds. Rather, he asserts “the district court erred in finding that [he] had failed to allege

sufficient facts to meet the cause and prejudice standard or the fundamental miscarriage

of justice exception to excuse his procedural default.”5 But Mr. Fuller does not offer any

explanation beyond this conclusory statement, and our review of the record supports the

district court’s conclusion that “Mr. Fuller d[id] not allege facts in [his] § 2254

Application to meet the cause and prejudice standard, or fundamental miscarriage of

justice exception.”

       Accordingly, we conclude reasonable jurists could not debate the district court’s

determination that claim two is procedurally barred. We therefore deny Mr. Fuller’s

request for a COA on claim two.

                                  2. Claims Five and Six

       In claims five and six, Mr. Fuller contends that his Fifth and Sixth Amendment

rights were violated when the trial court failed to hold a hearing to investigate the


       5
        Mr. Fuller also raises several arguments concerning the substantive merits of this
claim, but these arguments are not relevant to the district court’s procedural ruling.
                                              10
prosecution’s alleged improper ex parte communications with the jurors and when the

trial court itself allegedly engaged in improper ex parte communications with the jurors.

Although Mr. Fuller conceded in his § 2254 petition that these claims were “not properly

brought before the state courts and [are], therefore, procedurally barred,” he argued his

procedural default should be excused under the cause-and-prejudice and/or fundamental-

miscarriage-of-justice exceptions. Specifically, he claimed the default should be excused

because he did not learn of the alleged communications “until after his direct appeal and

postconviction proceedings were exhausted due to the acts/omissions of defense counsel

in withholding this information from him.”

       The district court disagreed, reasoning that claims five and six could have been

raised on direct appeal because, according to Mr. Fuller, his defense counsel knew of the

facts underlying those claims at that time. The court further concluded that counsel’s

failure to raise the claims on direct appeal cannot excuse the procedural default because

Mr. Fuller did not exhaust a claim for ineffective assistance of appellate counsel, and any

new attempt to do so would be procedurally barred in the state courts.

       Here, Mr. Fuller argues that “the District Court applied an incorrect legal standard

when it found [he] failed to allege grounds that constitute cause for his procedural default

on [claims five and six].” According to Mr. Fuller, he “is not arguing an ineffective

assistance of counsel claim,” but is instead claiming that “defense counsel’s failure to

apprise him of . . . ex parte and improper communications with jurors” is sufficient cause

to excuse his default of these claims. We reject this argument and conclude the district

court’s resolution of claims five and six is not reasonably debatable.

                                             11
       First, to the extent Mr. Fuller is arguing his counsel was not ineffective but

nonetheless acted, or failed to act, in a way which resulted in a procedural default, that

action or inaction cannot amount to cause excusing the default. See Murray v. Carrier,

, 488 (1986) (“So long as a defendant is represented by counsel whose

performance is not constitutionally ineffective . . . , we discern no inequity in requiring

him to bear the risk of attorney error that results in a procedural default. Instead, we think

that the existence of cause for a procedural default must ordinarily turn on whether the

prisoner can show that some objective factor external to the defense impeded counsel’s

efforts to comply with the State’s procedural rule.”).

       On the other hand, if Mr. Fuller actually is attempting to use an ineffective

assistance of counsel claim as cause to excuse the default, such a claim must first be

exhausted in state court. See 

(“[A] claim of ineffective assistance [must] be

presented to the state courts as an independent claim before it may be used to establish

cause for a procedural default.”). As the district court noted, Mr. Fuller has not exhausted

a claim of ineffective assistance of counsel with regard to either claim five or claim six.

And reasonable jurists could not debate the district court’s conclusion that such a claim is

subject to anticipatory procedural bar because any new attempt to bring the claim in state

court would be barred under state procedural rules. See Colo. R. Crim. P. 35(c)(3)(VII);

Colo. Rev. Stat. § 16-5-402 (imposing three-year statute of limitations on collateral

attacks to convictions for most felonies); see also Edwards v. Carpenter, 

,

453 (2000) (holding that “an ineffective-assistance-of-counsel claim asserted as cause for

the procedural default of another claim can itself be procedurally defaulted”).

                                             12
       In sum, Mr. Fuller has not shown that reasonable jurists could debate the district

court’s conclusion that he did not establish a viable excuse for his procedural default of

claims five and six. Accordingly, we deny Mr. Fuller’s request for a COA on these

claims.

                                      3. Claim Eight

       In claim eight, Mr. Fuller asserts 20 different grounds or subclaims of ineffective

assistance of counsel (“IAC”). See supra pp. 4–5. Although the district court initially

found that all 20 subclaims were procedurally barred,6 it also recognized that, because

Mr. Fuller was not appointed counsel in his state postconviction proceeding, the Supreme

Court’s narrow holding in Martinez v. Ryan, 

(2012), could allow Mr. Fuller to

bypass the procedural bar. In Martinez, the Court held that “when a State requires a

prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral

proceeding, a prisoner may establish cause for a default of an ineffective-assistance

claim” if “the state courts did not appoint counsel in the . . . collateral proceeding” and

the “prisoner [can] demonstrate that the underlying [ineffective-assistance claim] is a

substantial one, which is to say that the prisoner must demonstrate that the claim has

some merit.” 

Applying Martinez’s standard in this case, the district court later

determined that, under the performance and prejudice test of Strickland v. Washington,


       6
         The district court concluded that the subclaims Mr. Fuller presented in state court
had been procedurally defaulted on independent and adequate state grounds, and that
Mr. Fuller had “committed an anticipatory procedural default” of the remaining
subclaims because they would now be rejected by the state courts “as successive under
[Colorado Rule of Criminal Procedure] 35(c)(3)(VII), or time-barred under [Colo. Rev.
Stat.] § 16-5-402.”
                                              13


, 687 (1984), none of Mr. Fuller’s IAC subclaims were substantial. Thus, the

court dismissed claim eight as procedurally barred.

       Here, Mr. Fuller concedes that all of his IAC subclaims otherwise would be

procedurally barred and that the Martinez framework controls whether he has shown

cause to overcome the bar. He argues, however, that “the district court erred when it

relied solely on Strickland to decide [his IAC] claims” were not substantial under

Martinez. In particular, Mr. Fuller contends that Strickland’s prejudice prong should be

presumed under United States v. Cronic, 

, 659 (1984), because “defense

counsel was unable to subject the prosecution’s case to meaningful adversarial testing.”

But Mr. Fuller’s reliance on Cronic’s presumption is misplaced.

       In Bell v. Cone, the Supreme Court clarified its holding in Cronic as follows:

       When we spoke in Cronic of the possibility of presuming prejudice based
       on an attorney’s failure to test the prosecutor’s case, we indicated that the
       attorney’s failure must be complete. We said “if counsel entirely fails to
       subject the prosecution’s case to meaningful adversarial testing.” Cronic,
       [466 U.S. at 659] (emphasis added). Here, respondent’s argument is not
       that his counsel failed to oppose the prosecution throughout the . . .
       proceeding as a whole, but that his counsel failed to do so at specific points.
       For purposes of distinguishing between the rule of Strickland and that of
       Cronic, this difference is not of degree but of kind.

, 696–97 (2002) (first emphasis added). Mr. Fuller has not shown that his

defense counsel “entirely failed” to test the prosecution’s case. To the contrary, as the

district court detailed, Mr. Fuller’s counsel submitted various motions and arguments,

cross-examined the state’s witnesses, made opening and closing statements, and

presented evidence on Mr. Fuller’s behalf. Thus, if defense counsel failed to oppose the

prosecution’s case at all, the failure was “at specific points,” and not “throughout the . . .

                                              14
proceeding as a whole.” 

In other words, the alleged errors of which Mr. Fuller

complains are “of the same ilk as other specific attorney errors [the Supreme Court has]

held subject to Strickland’s performance and prejudice components.” 

We

therefore reject Mr. Fuller’s argument that the district court erred by applying Strickland

and not Cronic.

       Moreover, we conclude reasonable jurists could not debate the district court’s

thorough analysis concluding that all of Mr. Fuller’s IAC subclaims lack merit under the

Strickland test and therefore are not substantial under Martinez. Indeed, Mr. Fuller does

not challenge the merits of that analysis; he argues only that prejudice should have been

presumed in the first place under Cronic. Because Mr. Fuller has not demonstrated that

any of his admittedly defaulted IAC subclaims fall within Martinez’s narrow exception to

procedural bar, reasonable jurists could not debate the district court’s conclusion that

claim eight is procedurally barred. Accordingly, we deny Mr. Fuller’s request for a COA

on that claim.

                   B. Claims the District Court Adjudicated on the Merits

       Because the district court dismissed the remaining constitutional claims raised in

Mr. Fuller’s § 2254 petition—claims one and three—on the merits, we evaluate

Mr. Fuller’s request for a COA on these claims under a slightly different framework than

we applied to his claims dismissed on procedural grounds.

       To make the “substantial showing of the denial of a constitutional right” necessary

for obtaining a COA on claims one and three, Mr. Fuller must “demonstrate that

reasonable jurists would find the district court’s assessment of [these] claims debatable or

                                             15
wrong.” Slack v. McDaniel, 

, 484 (2000). On our end, the COA

determination “requires an overview of the claims in [Mr. Fuller’s] habeas petition and a

general assessment of their merits.” Miller-El v. Cockrell, 

, 336 (2003). And

because Mr. Fuller’s first and third claims were adjudicated on the merits in state court,

we must incorporate into our COA analysis the deference for state court decisions

demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

See Davis v. McCollum, 

, 1319 (10th Cir. 2015). Under AEDPA, a federal

court may grant habeas relief only if the state court’s merits 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,” 

       So, here, the pertinent question for COA purposes is not whether reasonable jurists

could debate a district court determination that the state court’s decision was not wrong.

Rather, the question is whether reasonable jurists could debate the district court’s

conclusion that the state court’s decision was not unreasonable, “either as a

determination of fact or as an application of clearly established federal law.” Dockins v.

Hines, 

, 940 (10th Cir. 2004). In other words, “[w]e look to the District

Court’s application of AEDPA to [Mr. Fuller]’s constitutional claims and ask whether

that resolution was debatable amongst jurists of reason.” 

(emphasis added).



                                             16
       Addressing each of Mr. Fuller’s remaining habeas claims in turn, we conclude

reasonable jurists could not debate the district court’s determination that, viewed through

the lens of AEDPA, both are without merit.

                                       1. Claim One

       In claim one, Mr. Fuller argues that his Fourth Amendment rights were violated

when the state trial court failed to suppress evidence obtained through an illegal search

and seizure of a suitcase containing a mobile methamphetamine lab. The district court

properly concluded that its analysis of claim one was governed by the Supreme Court’s

decision in Stone v. Powell, where the Court held that “a state prisoner may not be

granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial” so long as “the State . . .

provided [the prisoner] an opportunity for full and fair litigation of a Fourth Amendment

claim.” 

, 494 (1976) (emphasis added). After evaluating in detail the state-

court proceedings in which Mr. Fuller’s Fourth Amendment claim was addressed, the

district court determined Mr. Fuller was given an opportunity for full and fair litigation of

a Fourth Amendment claim in state court and therefore dismissed claim one.

       For the foregoing reasons, we conclude reasonable jurists could not debate the

district court’s decision on this matter. Although the Stone Court did not explain what an

“opportunity for full and fair litigation” entails, we have long interpreted it as “requir[ing]

at least ‘the procedural opportunity to raise or otherwise present a Fourth Amendment

claim,’ a ‘full and fair evidentiary hearing,’ and ‘recognition and at least colorable

application of the correct Fourth Amendment constitutional standards.’” United States v.

                                              17
Lee Vang Lor, 

, 1258 (10th Cir. 2013) (quoting Gamble v. Oklahoma, 

, 1165 (10th Cir. 1978)). Here, Mr. Fuller filed a motion to suppress the

relevant evidence before trial, and the state trial court denied the motion after conducting

an evidentiary hearing. Later, when Mr. Fuller moved to reopen the suppression hearing

based on new evidence, the state court reviewed the new evidence in camera and

considered arguments from both sides before denying that motion. And on direct appeal,

the Colorado Court of Appeals applied settled Fourth Amendment law in concluding that

“the contents of the suitcase were admissible under the plain view exception to the

warrant requirement, and the trial court did not err in denying [Mr. Fuller]’s motion to

suppress.”

       Based on this record, the district court’s conclusion that Mr. Fuller was afforded a

full and fair opportunity to litigate his Fourth Amendment claim in state court is not

reasonably debatable. Indeed, Mr. Fuller does not debate it. Rather, he presents various

arguments for why he believes the state courts’ merits decisions were wrong under

federal law. But the ultimate accuracy of a state court’s legal analysis is not relevant to

the inquiry required by Stone unless “the state court willfully refuse[d] to apply the

correct and controlling constitutional standards.” 

. And to the

extent Mr. Fuller is arguing the latter scenario occurred in this case, that argument is not

supported by the record: in analyzing and rejecting Mr. Fuller’s Fourth Amendment

claim, the state courts relied exclusively on either controlling United States Supreme

Court precedent, or Colorado precedent that in turn relied on controlling Supreme Court

precedent.

                                             18
       We therefore conclude reasonable jurists could not debate the district court’s

determination that Mr. Fuller is not entitled to federal habeas relief on his Fourth

Amendment claim because the state courts provided him a full and fair opportunity to

litigate that claim. Accordingly, we deny Mr. Fuller’s request for a COA on claim one.

                                     2. Claim Three

       In claim three, Mr. Fuller contends there was insufficient evidence to prove

beyond a reasonable doubt that he knew the suitcase contained chemicals and supplies for

making methamphetamine, as was required for his conviction. See Colo. Rev. Stat.

§ 18-18-405(1)(a) (“[I]t is unlawful for any person knowingly to . . . possess one or more

chemicals or supplies or equipment with intent to manufacture a controlled substance.”).

Mr. Fuller presented this claim on direct appeal, and the Colorado Court of Appeals

rejected it on the merits, concluding “that the circumstantial evidence presented, taken as

a whole and in the light most favorable to the prosecution, was sufficient to support a

finding beyond a reasonable doubt that [Mr. Fuller] knew of the contents of the suitcase

and intended to manufacture methamphetamine.” The district court below reviewed the

state appellate court’s decision and concluded Mr. Fuller had not demonstrated it was

based on an unreasonable application of clearly established federal law or an

unreasonable determination of the facts.

       Here, Mr. Fuller does not renew his challenge to the Colorado Court of Appeals’

application of federal law, but he does argue its decision was based on an unreasonable

determination of the facts because it relied on “perjured and recanted testimony” and



                                             19
other facts not supported by the record.7 To the contrary, we conclude the district court’s

decision rejecting this argument is not reasonably debatable.

       Habeas challenges to the sufficiency of the evidence supporting a conviction are

governed by Jackson v. Virginia, 

(1979), where the Supreme Court held

that evidence is constitutionally sufficient if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” 

Courts’ review under

Jackson “is sharply limited, and a court faced with a record of historical facts that

supports conflicting inferences must presume—even if it does not affirmatively appear in

the record—that the trier of fact resolved any such conflicts in favor of the prosecution,

and must defer to that resolution.” Brown v. Sirmons, 

, 1089 (10th Cir.

2008) (alternations and internal quotation marks omitted). In addition, when assessing the

factual basis of a state court’s sufficiency-of-the-evidence ruling in a § 2254 proceeding,

a federal court must presume the state court’s factual determinations are correct, and the

habeas petitioner bears the burden of overcoming that presumption by clear and

convincing evidence. See id.; see also 28 U.S.C. § 2254(d)(2), (e)(1).


       7
         Mr. Fuller also references McQuiggin v. Perkins, 

, 1928 (2013),
for the proposition that “actual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of
the statute of limitations,” and argues he raised the issue of his actual innocence in his
§ 2254 petition here. (Alterations in Mr. Fuller’s brief.) However, as Mr. Fuller’s excerpt
from McQuiggin indicates, “actual innocence” is a tool available to habeas petitioners
seeking “to pursue [their] constitutional claims . . . on the merits notwithstanding the
existence of a procedural bar to relief.” 

. Because
Mr. Fuller’s insufficient-evidence claim is not procedurally barred and was considered on
the merits, the actual-innocence exception to procedural bar is irrelevant.
                                             20
       The district court here faithfully applied these standards, and we conclude

reasonable jurists could not debate its conclusion that the Colorado Court of Appeals’

decision was based on a reasonable determination of the facts.8 Mr. Fuller attacks the

state court’s decision on the ground that it relied on “perjured, questionable, and recanted

testimony . . . belied by the record[]” in concluding there was sufficient evidence to

support the jury’s finding that Mr. Fuller knew the suitcase contained supplies for

manufacturing methamphetamine. But the only evidence Mr. Fuller cites in support of

this contention is arguable inconsistencies in the recollection of a single witness who

testified he saw Mr. Fuller carry the suitcase into the convenience store, retrieve an object

from the suitcase, and act “paranoid,” “defensive,” and “protective” about the suitcase. At

most, these alleged inconsistencies created a conflict regarding one piece of evidence that

the jury could have resolved in Mr. Fuller’s favor. But under Jackson, reviewing courts

must presume the jury resolved any such conflict in favor of the prosecution, and must

defer to that resolution. 

. Moreover, the district court noted that

the state court’s decision was buttressed by various additional facts supported by the

record and unrebutted by Mr. Fuller.

       Under these circumstances, no reasonable jurist could find the district court’s

rejection of claim three debatable or wrong. We therefore deny Mr. Fuller’s request for a

COA on this claim.


       8
         Although Mr. Fuller does not dispute it, we note that reasonable jurists also could
not debate the district court’s conclusion that the Colorado Court of Appeals reasonably
applied the Jackson standard in rejecting Mr. Fuller’s insufficient-evidence claim on
direct appeal.
                                             21
                  C. Request for Leave to Proceed In Forma Pauperis

       As a final matter, Mr. Fuller has filed a motion to proceed on appeal in forma

pauperis. Prisoners seeking to proceed in forma pauperis in a habeas action must

demonstrate “a financial inability to pay the required fees and the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on appeal.”

McIntosh v. U.S. Parole Comm’n, 

, 812 (10th Cir. 1997) (internal quotation

marks omitted). We conclude that although Mr. Fuller has demonstrated a financial

inability to pay, he has not shown that his arguments on appeal are nonfrivolous.

Accordingly, we deny Mr. Fuller’s motion to proceed in forma pauperis and remind him

of his obligation to pay the filing fee, even on an appeal that has been dismissed. See

Kinnell v. Graves, 

, 1129 (10th Cir. 2001).

                               III.     CONCLUSION

       Reasonable jurists could not debate the district court’s decision that the

constitutional claims raised in Mr. Fuller’s § 2254 petition are either meritless or

procedurally barred. We therefore deny Mr. Fuller’s application for a COA as to all

claims and dismiss this matter. We also deny Mr. Fuller’s request to proceed in forma

pauperis.

                                              Entered for the Court


                                              Carolyn B. McHugh
                                              Circuit Judge




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