Parrino v. Archuleta

FILED
United States Court of Appeals
Tenth Circuit
October 20, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MICHAEL SALVATORE PARRINO,
Petitioner - Appellant,
v. No. 15-1160
(D.C. No. 1:14-CV-02007-LTB)
LOU ARCHULETA, and THE (D. of Colo.)
ATTORNEY GENERAL OF THE
STATE OF COLORADO,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.
Michael Salvatore Parrino, a state prisoner proceeding pro se, requests a
certificate of appealability (COA) to appeal the district court’s denial of his 28
U.S.C. § 2254 petition for habeas relief. Parrino has not established that
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
*
This order is not binding precedent except under the doctrines of law of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.
Exercising jurisdiction under 28 U.S.C. § 2253(a), we DENY a certificate
of appealability and DISMISS the appeal.
I. Background
After a jury trial, Parrino was convicted of aggravated robbery, three counts
of first-degree assault of a police officer, first-degree criminal trespass, and
menacing. Parrino is currently serving four consecutive 22-year sentences for the
robbery and assault convictions and two three-year sentences, concurrently with
the consecutive terms, for the trespass and menacing convictions.
We construe Parrino’s petition liberally because he is not represented by an
attorney. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). He
makes three arguments: (1) ineffective assistance of counsel at the plea bargain
stage due to a financial conflict of interest; (2) ineffective assistance of counsel at
the post-conviction stage; and (3) double jeopardy as to the three counts of assault
on a peace officer.
II. Analysis
We may grant a COA only if the defendant makes a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When determining
whether to grant a COA, we ask whether “reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.”
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Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation marks and
citation omitted).
To prevail on an ineffective assistance of counsel claim, Parrino must show
that “his attorney’s performance ‘fell below an objective standard of
reasonableness’ and that the unreasonably deficient performance resulted in
prejudice.” Lucero v. Kerby, 133 F.3d 1299, 1323 (10th Cir. 1998) (quoting
Strickland v. Washington, 466 U.S. 668, 688, 691–92 (1984)). Prejudice exists
where “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. (quoting
Strickland, 466 U.S. at 694). The Sixth Amendment right to counsel exists at the
plea-bargaining stage as well as at trial. Padilla v. Kentucky, 559 U.S. 356, 374
(2010).
Parrino does not meet this standard. He first argues his trial counsel
provided ineffective assistance by refusing to accept a 25-year plea agreement
because counsel would earn more money by proceeding to trial. Accepting the
factual findings of the state court, the district court found that this allegation
lacked support. Among the eight findings cited, the court mentioned that the 25-
year offer had expired before counsel took over the case, and also that it was
Parrino’s family, not his lawyer, who pressured him to go to trial. Based on these
factual findings, Parrino does not satisfy his burden of proving deficient
performance at the plea bargain stage.
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Parrino also claims ineffective assistance of counsel at the state post-
conviction stage. He seeks an evidentiary hearing to investigate the conduct of
both his state post-conviction counsel and the government during remand
proceedings. Parrino attempts to present new evidence that he did not present in
state court. But AEDPA restricts the power of federal courts to grant evidentiary
hearings in habeas cases. Under Cullen v. Pinholster, 131 S. Ct. 1388 (2011),
federal review of 2254(d)(1) petitions must be limited to the state court record.
Therefore, Parrino’s request must be denied.
Finally, Parrino presents a double jeopardy claim related to his assault
convictions. We agree with the district court that because he failed to “fairly
present” this claim in state court, he has anticipatorily procedurally defaulted.
Anderson v. Harless, 459 U.S. 4, 6 (1982). Rule 35(c)(3)(VII) of the Colorado
Rules of Criminal Procedure provides that “[t]he court shall deny any claim that
could have been presented in an appeal previously brought or postconviction
proceeding previously brought.” Parrino would be barred from raising this
unexhausted claim in state court.
Generally, federal courts “do not review issues that have been defaulted in
state court on an independent and adequate state procedural ground, unless the
default is excused through a showing of cause and actual prejudice or a
fundamental miscarriage of justice.” Jackson v. Shanks, 143 F.3d 1313, 1317
(10th Cir. 1998). The petitioner bears the burden of specifically alleging the
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inadequacy of a state procedural law. Fairchild v. Workman, 579 F.3d 1134,
1143 (10th Cir. 2009). Parrino does not argue that Rule 35(c)(3)(VII) lacks an
independent and adequate basis in state law. And even if he could raise a claim
based on a fundamental miscarriage of justice, that claim must fail because
Parrino presents no new evidence of his actual innocence.
III. Conclusion
We agree with the district court that no reasonable jurist could conclude
that Parrino has made a substantial showing of a violation of his constitutional
rights. Accordingly, we DENY his request for a COA and DISMISS this appeal.
We also DENY his motion for permission to proceed in forma pauperis.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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