Lee v. Ortiz

FILED
United States Court of Appeals
Tenth Circuit
March 26, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
BRIAN LEE,
Petitioner-Appellant,
v. No. 07-1447
JOE ORTIZ, Executive Director, (D.C. No. 06-CV-705-LTB-MEH)
Colorado Department of Corrections; (D. Colorado)
AL ESTEP, Warden; JOHN
SUTHERS, Attorney General of the
State of Colorado,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Brian Lee, a Colorado state prisoner appearing pro se, seeks a certificate of
appealability (COA) in order to challenge the district court’s denial of his 28
U.S.C. § 2254 petition for writ of habeas corpus. Because Lee has failed to
satisfy the standards for the issuance of a COA, we must deny his request and
dismiss the matter.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
I.
The underlying facts that led to Lee’s convictions are summarized in
People v. Lee, 914 P.2d 441, 443 (Colo. App. 1995); it is unnecessary to repeat
them in detail here. In 1993, Lee was convicted by a jury of first degree extreme
indifference murder, three counts of attempted first degree extreme indifference
murder, second degree assault, conspiracy to commit first degree assault, and
conspiracy to commit menacing. On direct appeal, the Colorado Court of Appeals
vacated the conviction for attempted murder pertaining to the victim of the second
degree assault, and affirmed the remaining convictions. The Colorado Supreme
Court denied certiorari. Lee then filed a motion for post-conviction relief in state
court pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. The
state district court denied relief and the order of denial was affirmed on appeal.
Lee subsequently filed a second state-court motion for post-conviction relief
under Rule 35(c), which was also denied.
Lee then filed this § 2254 habeas petition, presenting five claims for
relief: (1) the trial court’s jury instruction on complicity permitted conviction
upon a lesser standard of proof than required by law; (2) his trial counsel was
constitutionally ineffective; (3) he was denied due process because the trial court
refused to grant a new trial based on newly discovered evidence; (4) the trial
court used a constitutionally defective theory of the case which relied on
insufficient evidence and resulted in inconsistent verdicts; and (5) his right to
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equal protection of the laws was violated by the complicity instruction. On May
24, 2007, a United States magistrate judge filed a report recommending that Lee’s
petition be denied and the case dismissed with prejudice. The report addressed
each of Lee’s arguments in turn, concluding that the complicity instruction had no
effect on the outcome at trial; that the credibility determinations of the trial court
showed that trial counsel was not ineffective; and that newly discovered evidence
was not grounds for habeas relief where the conviction was supported by
substantial evidence. The magistrate judge further concluded that Lee’s latter two
claims were procedurally barred because the issues they raised had been defaulted
in state court on state procedural grounds.
In an Order dated August 6, 2007, the district court, having reviewed the
magistrate’s report and Lee’s objections to it, denied Defendant’s § 2254 petition
and dismissed the case. The district court subsequently denied Lee’s request for a
COA. Lee has renewed his request for a COA with this court, and has also filed a
motion to proceed in forma pauperis on appeal.
II.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). In other words, a state prisoner may appeal from the denial of federal
habeas relief under 28 U.S.C. § 2254 only if the district court or this court first
issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the
applicant has made a substantial showing of the denial of a constitutional right.”
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28 U.S.C. § 2253(c)(2). In order to make that showing, a prisoner must
demonstrate “that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274,
282 (2004) (internal quotation marks omitted).
After reviewing the record, we conclude that Lee is not entitled to a COA.
The magistrate judge’s report thoroughly explains why Lee is not entitled to
habeas relief. The state courts applied the Supreme Court’s clearly established
precedents to the facts in an objectively reasonable manner. See Brown v.
Payton, 544 U.S. 133, 141 (2005). We further agree with the magistrate judge
and the district court that Lee’s last two claims were procedurally barred because
they were “defaulted in state court on an independent and adequate state
procedural ground.” Maes v. Thomas, 45 F.3d 979, 985 (10th Cir. 1995). No
reasonable jurist could disagree as to these matters.
The motion for leave to proceed on appeal in forma pauperis and the
request for a COA are DENIED and the appeal is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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