FILED
United States Court of Appeals
Tenth Circuit
February 20, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ADAM VALDEZ,
Petitioner-Appellant, No. 07-3251
v. (D. Kansas)
DAVID R. McKUNE; ATTORNEY (D.C. No. 06-CV-3103-JTM)
GENERAL OF KANSAS,
Respondents-Appellees.
ORDER
Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.
Adam Valdez, a prisoner in the custody of the Kansas Department of
Corrections, seeks a certificate of appealability (“COA”) to appeal the district
court’s orders (a) denying his 28 U.S.C. § 2254 petition for a writ of habeas
corpus and (b) denying his motion to alter or amend its initial decision. For the
reasons set forth below, we conclude that we lack jurisdiction to review the
district court’s initial order denying Mr. Valdez’s § 2254 petition. As to the
court’s denial of his motion to alter or amend, Mr. Valdez had failed to advance a
colorable argument in support of his contentions of error. We therefore deny Mr.
Valdez’s application for a COA and dismiss this matter.
I. BACKGROUND
The underlying facts are set forth in the Kansas Supreme Court’s opinion in
State v. Valdez, 977 P.2d 242 (Kan. 1998). Mr. Valdez was charged in the
District Court of Finney County, Kansas with a series of crimes arising out of
death of Juan Ayon on February 4, 1996. Mr. Valdez was seventeen years old at
the time of the alleged offenses. The Finney County court certified Mr. Valdez to
stand trial as an adult, and a jury convicted him of the following offenses:
first-degree premeditated murder (in violation of Kan., Stat § 21-3401(a));
aggravated kidnapping (in violation of Kan. Stat. § 21-3421); conspiracy to
commit murder in the first degree (in violation of Kan. Stat. § 21-3302);
conspiracy to commit aggravated kidnapping (in violation of Kan. Stat. § 21-
3302); aggravated robbery (in violation of Kan. Stat. § 21-3427); and aggravated
battery (in violation of Kan. Stat. § 21-3414(a)(1)(A)).
The court then imposed a range of sentences: life imprisonment (for
first-degree premeditated murder); ninety-seven months, consecutive to murder
sentence (for aggravated kidnapping); seventy-three months, concurrent with the
kidnapping sentence (for conspiracy to commit murder); forty-nine months,
concurrent with conspiracy to commit murder sentence (for conspiracy to commit
aggravated kidnapping); forty-nine months consecutive to the previous sentences
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(for aggravated robbery); and forty-three months, consecutive to the previous
sentences (for aggravated battery). Mr. Valdez appealed his convictions and
sentences, and the Kansas Supreme Court affirmed. See Valdez, 977 P.2d at
251-262.
Mr. Valdez then sought post-conviction relief in the Kansas state courts.
The Kansas Court of Appeals concluded that Mr. Valdez’s convictions for
conspiracy to commit first-degree murder and conspiracy to commit aggravated
kidnapping were multiplicitous because they were based on a single continuing
conspiracy. Accordingly, the Court of Appeals reversed Mr. Valdez’s conviction
for conspiracy to commit aggravated kidnapping. Valdez v. State, No. 88,728,
unpublished opinion, filed July 3, 2003. However, the Kansas courts rejected Mr.
Valdez’s other claims.
Subsequently, Mr. Valdez filed a pro se 28 U.S.C. § 2254 petition in the
federal district court. In that petition, Mr. Valdez asserted that (1) the state
district court erred in certifying him as an adult; (2) the court erred in denying his
motions to acquit; (3) the court erred in admitting the results of DNA testing; (4)
the court erred in ordering a witness, Jose Avalos, to testify at trial after the
witness invoked his Fifth Amendment privilege; (5) the court erred in admitting
evidence of Mr. Valdez’s gang affiliation; (6) the court erred in overruling Mr.
Valdez’s objections to the prosecutor’s closing argument; (7) the court committed
cumulative error; (8) the court erred in imposing a “hard forty” sentence (i.e.,
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forty years without parole); (9) he received ineffective assistance of trial and
appellate counsel; (10) the charging document was constitutionally deficient; (11)
his convictions were based on perjured testimony; and (12) the prosecutor
engaged in misconduct.
In a May 31, 2007, memorandum opinion and order, the district court
rejected all of Mr. Valdez’s claims. The court applied the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which provides that habeas
corpus relief is available only if the state court’s decision is “contrary to” or “an
unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “an unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. §
2254(d)(2).
Mr. Valdez did not file a timely appeal of the district court’s May 31, 2007
order. Instead, on June 17, 2007, he submitted a motion to alter or amend
judgment. There, he requested the court to reconsider its decisions as to the
fourth and tenth claims set forth above and as to one of his allegations of
prosecutorial misconduct. On July 26, 2007, the district court denied Mr.
Valdez’s motion to alter or amend. On August 27, 2007, Mr. Valdez filed a
timely notice of appeal of the July 26, 2007 order.
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II. DISCUSSION
In order to obtain a COA, Mr. Valdez must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Valdez may
make this showing by demonstrating that “reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). “[A] claim can be debatable even
though every jurist of reason might agree, after the COA has been granted and the
case has received full consideration, that [the] petitioner will not prevail.” Id. at
338.
A. Jurisdiction
Initially, we note that we lack jurisdiction to review the district court’s
May 31, 2007 order. Under Rule 4 of the Federal Rules of Appellate Procedure,
Mr. Valdez was required to file a notice of appeal of that ruling “within 30 days
after the judgment or order appealed from is entered.” F ED . R. A PP . P. 4
(a)(1)(A). However, as noted above, Mr. Valdez did not file a notice of appeal
until August 27, 2007, more than thirty days after the district court’s May 31,
2007 order.
Under Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, the
time for filing a notice of appeal may be extended if the appealing party files
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certain types of post-judgment motions in the district court. Those time-
extending motions include motions to alter or amend a judgment under Fed. R.
Civ. P. 59 and motions for relief under Fed. R. Civ. P. 60(b), if the Rule 60
motion “is filed no later than 10 days after the judgment is entered.” FED . R. A PP .
P. 4(a)(4)(A)(iv), (vi). In those instances, the time for filing the notice of appeal
runs from the date that the district court decides the post-judgment motion. F ED .
R. A PP . P. 4(a)(4)(A).
Here, Mr. Valdez did not file a post-judgment motion within the time
period that would have extended the time for filing a notice of appeal. In
particular, his motion to alter or amend the judgment was filed outside the ten-day
period for filing a Rule 59 motion to alter or amend the judgment and for filing a
Rule 60 motion that would extend the time for filing a notice of appeal. See
Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241 (10th Cir. 2006) (holding
that an untimely Rule 59(e) motion does not toll the time for filing a notice of
appeal). Accordingly, we lack jurisdiction to review the district court’s May 31,
2007 order, and we may only review the district court’s order denying Mr.
Valdez’s motion to alter or amend judgment.
B. Ordering a Witness to Testify at Trial
In his motion to alter or amend, Mr. Valdez first argued that the trial court
violated his right to a fair trial by ordering a witness, the co-defendant Jose
Avalos, to testify. The Kansas Supreme Court rejected this argument on the
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grounds that Mr. Valdez lacked standing. See Valdez, 977 P.2d at 258 (stating
that “‘[t]he right against self-incrimination is personal to the witness, and the
defendant in a criminal action has no standing to assert the witness’s privilege”).
In the instant habeas corpus proceeding, the federal district court agreed. See
Rec. doc. at 18, at 2 (stating that Mr. Avalos’s initial refusal to testify was based
on his Fifth Amendment rights and that “[t]he privilege against self-incrimination
is solely for the benefit of the witness and is a purely personal privilege of the
witness, not for the protection of other parties”) (quoting United States v. Skolek,
474 F.2d 582, 584 (10th Cir. 1973)).
Our review of the record indicates that Mr. Avalos, like Mr. Valdez, was
initially charged with the murder of Mr. Ayon and related crimes. Mr. Avalos
entered a guilty plea and agreed with the government to testify at Mr. Valdez’s
trial. However, at the trial, Mr. Avalos’s attorney informed the court that Mr.
Avalos “has told me that he does not wish to testify” and that “I don’t know if
there is a privilege or not.” State Ct. Rec. vol. IX, at 138. In response, the
prosecution argued that it had entered into an agreement with Mr. Avalos under
which he would “take the witness stand, when subpoenaed, and testify truthfully.”
Id. at 147. The prosecution further argued that by giving prior testimony at an
inquisition, Mr. Avalos had waived his Fifth Amendment privilege as to the
matters about which he testified.
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Upon considering these arguments, the trial judge ruled that “Mr. Avalos
should be and he is hereby ordered to testify.” State Ct. Rec. vol. X, at 10. The
court reasoned that Mr. Avalos “had previously waived his privilege against
self-incrimination by testifying under oath regarding his involvement in the
murder of Ayon at [Mr.] Valdez’s preliminary examination.” Valdez, 977 P.2d at
257 (summarizing the trial court’s ruling). However, the court limited the scope
of his testimony to “statements made to law enforcement, statements made in the
inquisition[,] and any statements that may have been overheard by law
enforcement.” State Ct. Rec. vol. X, at 11.
After the judge ruled, Mr. Avalos again announced that he would not
testify. The judge asked,, “Are you invoking any privileges at this time, or just
refusing to testify?” Id. at 14 Mr. Avalos responded, “Just refusing.” Id. The
judge then told Mr. Avalos’s attorney to “try to advise him that he needs to
testify.” Id. at 144. The judge added, “[I]f [Mr. Avalos] continues to refuse to
testify, then I will take other measures while he is in custody waiting the Court’s
final sentence . . . for any contempt that he continues to . . . reflect on this Court.”
Id.
Upon conferring with his attorney, Mr. Avalos changed his mind. His
attorney informed the court that “[Mr. Avalos] can be made to testify
involuntarily and will now do so.” Id. at 152. Mr. Avalos proceeded to testify on
behalf of the state, and his testimony implicated Mr. Valdez in the murder of Mr.
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Ayon and the accompanying crimes. See Valdez, 977 P.2d at 248 (summarizing
Mr. Avalos’s statements).
In the instant habeas corpus proceeding, we are not entirely persuaded by
the conclusion of the Kansas Supreme Court and the federal district court that
Mr. Valdez lacks standing to challenge the trial judge’s decision to order Mr.
Avalos to testify. As the district court noted, our precedent does state that
“[w]here the witness is not the party, the party may not claim the [Fifth
Amendment privilege against self incrimination] nor take advantage of an error of
the court in overruling it” and that” [t]he party, as contrasted to the witness,
simply lacks standing.” Skolek, 474 F.2d at 584. However, in more recent cases,
we have further noted that a defendant may assert that his right to a fair trial has
been violated by the use of testimony that has been unlawfully compelled from
government witnesses. See Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.
1997) (holding that, “because the evidence is unreliable and its use offends the
Constitution, a person may challenge the government’s use against him or her of a
coerced confession given by another person”); see also United States ex rel.
Cunningham v. DeRobertis, 719 F.2d 892, 896 (7th Cir. 1983) (“We conclude
that petitioner is correct about the general proposition that a violation of another’s
Fifth Amendment rights may rise to the level of a violation of his own right to a
fair trial.”).
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Nevertheless, even assuming that Mr. Valdez has standing to challenge the
trial judge’s ordering Mr. Avalos to testify, we conclude that the denial of that
claim is not debatable among jurists. In particular, Mr. Valdez has failed to make
a colorable argument that Mr. Avalos’s testimony was improperly coerced. He
has not disputed the government’s contention that Mr. Avalos had agreed to
testify, nor does he offer any legal argument challenging the trial court’s ruling
that Mr. Avalos had waived his Fifth Amendment rights by testifying about the
murder in pretrial proceedings. See United States v. Wise, 603 F.2d 1101, 1104
(4th Cir.1979) (agreeing with the district court that a witness had “waived his
[F]ifth [A]mendment privilege by entering into the plea agreement requiring him
to cooperate with the government and by testifying to his participation in the
[crime] when he entered his guilty plea”). Absent any such argument, we discern
no support for Mr. Valdez’s contention that the introduction of Mr. Avalos’s
testimony deprived Mr. Valdez of his right to a fair trial.
C. Alleged Prosecutorial Misconduct
In his motion to alter to amend, Mr. Valdez further argues that the
prosecutor engaged in misconduct by making a deal with one of the government’s
witnesses, Carlos Valencia, and by presenting perjured testimony. For the
reasons set forth by the district court, we conclude that this argument is also not
debatable among reasonable jurists. See Miller-El, 537 U.S. at 336. The record
does not indicate that Mr. Valencia’s testimony regarding an agreement with the
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government was false, that it was material, and that the prosecution knowingly
used perjured testimony. See United States v. Wolny, 133 F.3d 758, 762 (10th
Cir. 1991) (explaining the elements of a due process claim alleging the use of
perjured testimony by the government).
D. Allegedly Deficient Charging Document
Finally, in his motion to alter or amend, Mr. Valdez argues that the count
of the information charging conspiracy to commit first-degree murder was fatally
defective because it did not allege an overt act. Again, we agree with the district
court’s analysis of this claim. In order to obtain habeas relief on this claim, Mr.
Valdez must establish that the charging document failed to provide him with
“adequate notice of the nature and cause of the accusations filed against him.”
Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999). A violation of state
law requirements for charging documents is not sufficient. Id. Here, the
information provided sufficient notice of the charge.
III. CONCLUSION
Accordingly, we DENY Mr. Valdez’s application for a COA and DISMISS
this matter. Appellant’s motion to file a supplemental brief is GRANTED.
Entered for the Court,
Elisabeth A. Shumaker
Clerk of Court
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