Lucero v. Medina , 535 F. App'x 769 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
October 24, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ANTHONY J. LUCERO,
Petitioner - Appellant,
No. 13-1300
v. (D.C. No. 12-CV-01919-RM)
(D. Colo.)
ANGEL MEDINA, Warden; JOHN W.
SUTHERS, The Attorney General of
the State of Colorado,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Petitioner-Appellant Anthony Lucero, a Colorado state inmate proceeding
pro se, seeks to appeal from the district court’s denial of his petition for writ of
habeas corpus. 28 U.S.C. § 2254; Lucero v. Medina, 2013 WL 2338478 (D. Colo.
May 29, 2013); reconsideration denied, 2013 WL 3010826 (D. Colo. June 17,
2013). We deny a certificate of appealability (“COA”) and dismiss the appeal.
Background
In 1987, Mr. Lucero was convicted by a jury and sentenced to life in prison
for felony murder, attempted aggravated robbery, and two counts of crime of
violence arising from a failed bank robbery that resulted in the killing of an off-
duty police officer working as a bank security guard. R. 193, 438. The Colorado
Court of Appeals vacated the attempted aggravated robbery conviction and one
count of crime of violence but affirmed Mr. Lucero’s remaining convictions. See
People v. Lucero, No. 87CA1261 (Colo. App. May 16, 1991), R. 437-49; see also
People v. Lucero No. 91SC456 (Colo. May 11, 1992), R. 401-02. Mr. Lucero
then sought post-conviction relief in state court, which was denied. R. 379; see
People v. Lucero, No. 08CA1973, 2011 WL 3505422 (Colo. App. Aug. 11, 2011)
cert. denied, No. 11SC851, 2012 WL 2394388 (Colo. June 25, 2012).
In his federal habeas petition, Mr. Lucero raised seven claims for relief, all
of which the district court denied either on the merits, as procedurally defaulted,
or because they were not cognizable federal habeas claims. R. 8-9, 563-82, 701-
35. He renews three of the claims in his opening brief and request for a COA: (1)
competency to stand trial, (2) ineffective assistance of counsel, and (3) the failure
to appoint counsel and provide free transcripts in order to pursue an evidentiary
hearing on his competency and ineffective assistance of counsel claims.
Discussion
In order for this court to grant a COA, Mr. Lucero must make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that
“reasonable jurists could debate whether (or, for that matter, agree that) the
-2-
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation
omitted). Where the district court rejected Mr. Lucero’s claims on the merits, he
must demonstrate that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.Like the district court, we must defer to the state court proceedings on
these claims unless they “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law” or “resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),
(2); accord Hardy v. Cross, 132 S. Ct. 490, 491 (2011) (recognizing the “highly
deferential” standard of review to state-court determinations under § 2254). State
court findings of fact are presumed correct, absent clear and convincing evidence
otherwise. 28 U.S.C. § 2254(e)(1).
Having carefully reviewed Mr. Lucero’s three claims, the district court’s
analysis, and the record, we are persuaded that the district court’s resolution is
not reasonably debatable, given the appropriate level of deference for state court
factual findings and legal resolution of federal claims. See Lucero, 2013 WL
2338478 at *6-*12. The state appellate court concluded that a competency
hearing was not required because an earlier psychiatric evaluation determined he
-3-
was competent to stand trial, despite suffering from schizophrenia; Mr. Lucero
was not tried while incompetent; and Mr. Lucero could not show deficient
performance of counsel or prejudice on competency. See Dusky v. United States,
362 U.S. 402, 402 (1960); see also Miles v. Dorsey, 61 F.3d 1459, 1472-73 (10th
Cir. 1995); R. 198-200, 205-14, 200-205. In addition, counsel’s decision not to
further investigate and pursue Mr. Lucero’s mental health was reasonable under
the circumstances. See Strickland v. Washington, 466 U.S. 688, 691 (1984); R.
201-02. Finally, the district court properly resolved these two claims based on a
review of the existing record, making an evidentiary hearing unnecessary.
Accordingly, we DENY a COA and DISMISS the appeal.
We GRANT the motion for Mr. Lucero to proceed in forma pauperis.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-4-