Glasser v. McCall

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
WAYNE GLASSER,
Petitioner - Appellant,
v. No. 18-1420
(D.C. No. 1:17-CV-01396-WYD-MEH)
JACKIE MCCALL, Acting Warden; THE (D. Colo.)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,
Respondents - Appellees.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Wayne Glasser, a Colorado state inmate proceeding pro se,1 seeks a certificate of
appealability (COA) under 28 U.S.C. § 2253 in order to appeal the denial of his
28 U.S.C. § 2254 habeas corpus petition. We deny a COA and dismiss the matter.
I. Background
In 2008, Glasser was convicted of two counts of aggravated first degree sexual
assault and one count of second degree kidnapping. The trial court merged the sexual

This order is not binding precedent except under the doctrines of law of the case,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.
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We liberally construe Glasser’s pro se filings but do not act as his advocate.
See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
assault convictions and imposed two consecutive sentences of thirty years’ imprisonment.
On direct appeal, the Colorado Court of Appeals (CCA) affirmed the convictions and
sexual assault sentence but reversed the kidnapping sentence and remanded for
resentencing. People v. Glasser, 293 P.3d 68 (Colo. App. 2011). The CCA denied
Glasser’s petition for rehearing, and both the Colorado Supreme Court and the United
States Supreme Court denied Glasser’s petitions for a writ of certiorari.
On remand, the trial court resentenced Glasser to consecutive sentences of thirty
years’ imprisonment for the sexual assault convictions and twenty-four years’
imprisonment for the kidnapping conviction. Glasser filed a motion for reduction of
sentence pursuant to Colo. R. Crim. P. 35(b), which the court denied. Glasser did not
appeal.
Glasser then filed a petition for post-conviction relief pursuant to Colo. R. Crim.
P. 35(c). The state court summarily denied the petition, and the CCA affirmed. People v.
Glasser, No. 14CA1566, 2016 WL 836990 (Colo. App. Mar. 3, 2016) (unpublished).
The CCA denied Glasser’s petition for rehearing, and the Colorado Supreme Court
denied his petition for a writ of certiorari.
Thereafter, Glasser filed a § 2254 petition in federal district court, asserting a
Confrontation Clause violation and numerous claims of ineffective assistance of counsel
(IAC), including a claim of cumulative IAC. After a comprehensive review, the district
court dismissed the Confrontation Clause claim as procedurally defaulted, summarily
denied the IAC claims on the merits, and denied a COA. The district court also denied
Glasser’s motion for reconsideration. Glasser now seeks a COA from this court.
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II. COA Standard
With respect to Glasser’s defaulted Confrontation Clause claim, Glasser qualifies
for a COA only if he can demonstrate that reasonable jurists “would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and . . .
whether the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). With respect to the remainder of Glasser’s claims, Glasser
qualifies for a COA only if he can demonstrate “that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Id.
When determining if Glasser has satisfied these standards, we are limited to “an
overview of the claims in the habeas petition and a general assessment of their merits,”
rather than a “full consideration of the factual or legal bases adduced in support of the
claims.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Nevertheless, the “deferential
treatment of state court decisions” under 28 U.S.C. § 2254 “must be incorporated into our
consideration of a habeas petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935,
938 (10th Cir. 2004). Under § 2254, factual determinations “by a State court shall be
presumed to be correct,” which a petitioner can rebut only with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). For claims adjudicated on the merits in state court, a
petitioner must establish the state-court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law,” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” Id. § 2254(d)(1), (2). If that deferential “standard is difficult to meet,
that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
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III. Discussion
Federal habeas review exists to “guard against extreme malfunctions in the state
criminal justice systems.” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (internal
quotation marks). Having reviewed Glasser’s filings, the district court record, and the
state court record, we conclude that no such malfunction occurred in Glasser’s case and
that reasonable jurists would not debate the district court’s rulings.
First, Glasser asserts the state court’s determination, made both on direct appeal
and in post-conviction, that his counsel presented a defense of consent constituted an
unreasonable factual finding. Glasser claims that his attorneys did not present such a
defense and that such a factual finding adversely impacted the disposition of several of
his claims. The district court properly found Glasser failed to produce clear and
convincing evidence sufficient to rebut § 2254’s presumption of correctness.
Next, the district court correctly found Glasser’s Confrontation Clause claim
procedurally defaulted. The state court properly found the claim barred under Colo.
Crim. P. 35(c)(3)(VII), and none of the exceptions to that bar apply. Although Glasser
now asserts ineffective assistance of appellate counsel as cause to excuse the procedural
default, he failed to raise and exhaust such a claim in state court. See Edwards v.
Carpenter, 529 U.S. 446, 451-52 (2000).
The district court also correctly denied Glasser’s ineffective assistance of counsel
claims on the merits, particularly given review of such claims is “doubly” deferential.
Richter, 562 U.S. at 105 (internal quotation marks omitted). Glasser was required to
show both objectively unreasonable performance by his attorneys and “a reasonable
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probability that . . . the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). A thorough review of each claim is not
warranted here, but many of his claims fail on one of Strickland’s prongs—and for some,
he cannot satisfy either prong. Further, as each individual claim is without merit, so too
is his claim of cumulative ineffective assistance. See Wood v. Carpenter, 907 F.3d 1279,
1302 (10th Cir. 2018), petition for cert. filed (U.S. Mar. 29, 2019) (No. 18-8666); Spears
v. Mullin, 343 F.3d 1215, 1251 (10th Cir. 2003).
Finally, as all claims could be resolved on the record, the district court properly
denied an evidentiary hearing. See Anderson v. Att’y Gen. of Kan., 425 F.3d 853, 859
(10th Cir. 2005).
IV. Conclusion
We deny Glasser’s request for a COA, dismiss the matter, and dismiss as moot his
motion for certification of questions of state law to the Colorado Supreme Court. We
grant his motion to proceed in forma pauperis. See Watkins v. Leyba, 543 F.3d 624, 627
(10th Cir. 2008).
Entered for the Court
Bobby R. Baldock
Circuit Judge
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