FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT August 27, 2013
Elisabeth A. Shumaker
Clerk of Court
WILLIAM R. STEVENSON,
Petitioner–Appellant,
v.
No. 13-1147
WARDEN RAE TIMME; JOHN (D.C. No. 1:12-CV-02175-WJM)
SUTHERS, The Attorney General of the (D. Colo.)
State of Colorado,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
William Stevenson, a state prisoner proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. We deny a COA and dismiss the appeal.
I
In 2008, Stevenson was convicted in Colorado state court of aggravated robbery.
*
This order is not binding precedent except under the doctrines of law of the case,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.
He was sentenced to twenty-four years’ imprisonment. The Colorado Court of Appeals
affirmed his conviction and sentence on direct review. Stevenson did not seek state post-
conviction relief. In a federal habeas petition, Stevenson asserted three claims: (1) his
arrest was not supported by probable cause, rendering any evidence gathered subsequent
to his arrest inadmissible under the Fourth Amendment; (2) his Miranda warning was
inadequate; and (3) his Sixth Amendment right to a speedy trial was violated. Stevenson
later amended his application to include a claim of ineffective assistance of counsel. The
district court concluded that Stevenson’s speedy trial and ineffective assistance of
counsel claims had not been exhausted, and gave Stevenson an opportunity to withdraw
those claims. After Stevenson elected to proceed only with claims one and two, the
district court denied relief and declined to grant a COA. Stevenson now seeks a COA
from this court.1
II
A petitioner may not appeal the denial of habeas relief under § 2254 without a
COA. 28 U.S.C. § 2253(c)(1)(A). We will grant a COA only if Stevenson shows “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition should
1
The district court entered final judgment on March 12, 2013. Stevenson then had
thirty days to file a notice of appeal. Fed. R. App. P. 4(a)(1)(A). He filed his notice of
appeal on April 12, 2013—thirty-one days after judgment had been entered. However,
under the prison mailbox rule, “a pro se prisoner’s notice of appeal will be considered
timely if given to prison officials for mailing prior to the filing deadline.” Price v.
Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005). The certificate of mailing attached to
Stevenson’s notice of appeal was dated April 10, 2013, and thus his appeal is timely.
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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) (quotations omitted). To prevail on the merits, Stevenson must demonstrate that
the state courts’ adjudication of his claims either “resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented” or was
“contrary to, or involved an unreasonable application of, clearly established Federal law.”
§ 2254(d)(1), (2). Because Stevenson proceeds pro se, we construe his filings liberally;
however, “we do not assume the role of advocate.” Yang v. Archuleta, 525 F.3d 925,
927 n.1 (10th Cir. 2008) (quotation omitted).
On appeal, Stevenson claims that the district court erred in determining that he
was provided a full and fair opportunity to litigate his Fourth Amendment claim in state
court. “[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”
if “the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim.” Stone v. Powell, 428 U.S. 465, 494 (1976) (footnote omitted).
“Opportunity for full and fair consideration includes, but is not limited to, the procedural
opportunity to raise or otherwise present a Fourth Amendment claim,” a “full and fair
evidentiary hearing,” and “at least colorable application of the correct Fourth Amendment
constitutional standards.” Gamble v. Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978)
(quotation and footnote omitted).
The state trial court held an evidentiary hearing on Stevenson’s motion to
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suppress, during which the investigating detective and Stevenson were carefully
questioned, before concluding that the arrest was lawful. And the Colorado Court of
Appeals upheld that determination, colorably applying the correct standard for probable
cause. Stevenson’s disagreement with the precedent applied and the conclusions reached
by the state courts does not demonstrate an “unconscionable” breakdown in the state
court proceedings. Id. at 1165 n.3. We agree with the district court that Stevenson had a
full and fair opportunity to litigate his Fourth Amendment claim in state court. See
Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (habeas relief barred
because Fourth Amendment claims were adequately presented at trial and considered on
direct appeal under appropriate Supreme Court precedent).
Stevenson also argues that the district court failed to make its own factual
determinations in evaluating the sufficiency of his Miranda warnings and improperly
concluded those warnings were adequate. But under Supreme Court precedent, the
“inquiry is simply whether the warnings reasonably convey to a suspect his rights as
required by Miranda.” Florida v. Powell, 559 U.S. 50, 60 (2010) (quotation and
alterations omitted). The state courts reasonably concluded that that threshold was
satisfied. The Colorado Court of Appeals rejected Stevenson’s Miranda claim based on
credible testimony that Stevenson demonstrated willingness to speak with the
investigating detective after his Miranda rights were recited to him at the time of his
arrest and again at the police station. Both times, Stevenson knowingly and voluntarily
waived his rights. See Colorado v. Spring, 479 U.S. 564, 573-74 (1987) (setting forth
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standard for knowing and voluntary waiver of Miranda rights).
Stevenson complains that the district court analyzed the state court decision rather
than considering the facts and law independently. But the district court properly
evaluated the state court’s adjudication of his claim against the applicable standard for
habeas relief. See § 2254(d)(2). Stevenson failed to provide clear and convincing
evidence to rebut the state courts’ factual determinations, and thus those determinations
are presumed correct. See § 2254(e). For this reason, Stevenson’s final contention that
he should have been afforded an evidentiary hearing also lacks merit. See Anderson v.
Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir. 2005) (“[A]n evidentiary hearing is
unnecessary if the claim can be resolved on the record.”). We are in substantial
agreement with the reasoning of the district court and conclude that reasonable jurists
could not debate its rulings.
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal. We
GRANT Stevenson’s motion to proceed in forma pauperis.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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