Acosta v. Raemisch

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS December 15, 2017

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

GABRIEL ALEXANDER ACOSTA,

Petitioner - Appellant,

v. No. 17-1131

RICK RAEMISCH, Executive Director,
Colorado Department of Corrections;
CYNTHIA COFFMAN, Attorney General,
State of Colorado,

Respondents - Appellees.
_________________________________

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:16-CV-02266-RPM)
_________________________________

Anthony J. Shaheen (Christopher A. Chrisman and Jessica M. Schmidt with him on the
briefs), Holland & Hart LLP, Denver, Colorado, for Petitioner – Appellant.

Ryan A. Crane, Senior Assistant Attorney General, Criminal Appeals Section
(Cynthia H. Coffman, Attorney General, with him on the brief), Denver, Colorado, for
Respondents – Appellees.
_________________________________

Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________
 Petitioner-Appellant Gabriel Acosta and his girlfriend, Chante Dillon, killed

their roommate, Kimberly Dotson, after Ms. Dotson wrecked their car. Mr. Acosta

and Ms. Dillon duct-taped, beat, and suffocated Ms. Dotson to death, then bagged her

body in trash bags and threw her in a dumpster. They were both charged with first-

degree murder.

Patricia Medina was the only eyewitness to the murder. Before Mr. Acosta’s

trial, Ms. Medina described the killing in a recorded statement to the police, in two

criminal depositions at which she was cross-examined, and at Ms. Dillon’s trial,

where she was again subjected to cross-examination. But Ms. Medina was deemed

unavailable to testify at Mr. Acosta’s trial, so the transcripts of her testimony were

read to the jury.

Mr. Acosta was convicted in Adams County, Colorado of first-degree murder

and sentenced to life without parole. The Colorado Court of Appeals (CCA) affirmed

his conviction. Mr. Acosta then sought habeas relief in federal court under 28 U.S.C.

§ 2254. He claims he was denied his right to confront witnesses against him and to

the assistance of counsel, both in violation of the Sixth Amendment. The district

court denied relief. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we

affirm.

I. BACKGROUND

To place our analysis in context, we begin with a summary of (A) the pretrial

proceedings, (B) the state-court trial, (C) Mr. Acosta’s direct appeal, and (D) the

district court’s ruling on Mr. Acosta’s petition.

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 A. Pretrial Proceedings

An information filed on April 23, 2004, in Adams County, Colorado, charged

Mr. Acosta with first-degree murder for the slaying of Ms. Dotson. On April 28,

2004, Christopher Decker, an attorney with the Adams County Division of the State

Public Defender’s Office, appeared as counsel for Mr. Acosta.

As trial neared, Ms. Medina failed to appear in response to subpoenas for two

hearings. So, she was jailed. And pursuant to Colorado Rule of Criminal Procedure

15, the trial court ordered the taking of Ms. Medina’s deposition to preserve her

testimony for use at Mr. Acosta’s and Ms. Dillon’s trials in the event she failed to

appear again. The court recognized that while taking a deposition in a criminal case

is an extraordinary remedy, this is “a situation in which a witness has indicated her

unwillingness to appear at trial.”

At Ms. Medina’s deposition on December 15, 2004, she was cross-examined

by Ms. Dillon’s counsel, and when she was again deposed on December 22, 2004,

she was cross-examined by Mr. Acosta’s counsel. Ms. Medina’s testimony provides

the horrific details of how Mr. Acosta and Ms. Dillon hog-tied Ms. Dotson’s hands

and legs together and covered her mouth with duct tape; how they punched and

kicked her to death; how they wrapped her body in trash bags; and how they

discarded her body in a dumpster.

After the depositions were completed, Ms. Medina’s attorney moved for her

release. The court granted the request on the condition that Ms. Medina post a $2,500

personal recognizance bond and report to supervised release. Ms. Medina failed to

3
report to supervised release, so a warrant for her arrest was issued on January 20,

2005. She was later arrested and kept in custody until she testified at Ms. Dillon’s

trial in March 2005. Ms. Dillon was convicted of manslaughter.

Mr. Acosta’s trial was scheduled to begin on Monday, April 4, 2005. At a

hearing held on March 31, 2005, Mr. Decker advised the trial court that a non-

waivable conflict requiring his withdrawal had arisen. The trial court accepted

counsel’s statement that he could not ethically disclose the conflict and thus granted

his motion to withdraw as Mr. Acosta’s counsel.

The court then engaged in a colloquy with Mr. Acosta during which it gave

him the choice of proceeding without counsel or of waiving his right to speedy trial

to allow newly appointed counsel to prepare for trial—which the court concluded

could not be done in the four days remaining before the scheduled trial date. Mr.

Acosta waived speedy trial so he could be appointed new counsel, and his trial was

rescheduled to begin on August 29, 2005.

On April 6, 2005, Ms. Medina’s counsel asked the trial court to release Ms.

Medina because Mr. Acosta’s trial had been rescheduled. The court stated: “As I

have indicated before, I am not going to keep Ms. Medina in jail forever on this case.

But at the same time, Ms. Medina, you know, every time I release you, you disappear

on us. Ms. Medina, what are we going to do about this?”1 In response, Ms. Medina’s

counsel stated that if Ms. Medina does not report, then the court “can put her back in

1
The court had stated at the prior hearing that it would not hold Medina in jail
“indefinitely.”
4
jail.” The court agreed that it would. It then asked whether Ms. Medina had a place to

live in the meantime. Ms. Medina said she could stay with her brother. Satisfied with

her response, the court released Ms. Medina on a $500 recognizance bond, ordered

her to report for supervised release the next day, and stated that this would be “a test

on both you and me to find out whether you’re going to honor what I have to say.”

The court then assured Ms. Medina that the district attorney would provide her with

transportation to the court to ensure her attendance at trial. Mr. Acosta was not

present at the April 6th hearing. Nor was a lawyer present on his behalf. New counsel

for Mr. Acosta entered their appearances on April 8, 2005.

Ms. Medina did not report for supervised release the following day. Nor did

she go to her brother’s as she said she would. Instead, Ms. Medina stayed in a Denver

motel for a night before leaving town. Upon returning to Denver, she had no

permanent residence and bounced from one motel to another.

An arrest warrant for Ms. Medina issued almost three months later on July 1,

2005. Despite some efforts to locate her—which are detailed below—she was not

found before Mr. Acosta’s trial. The trial court ruled that Ms. Medina was

“unavailable” and allowed her deposition transcripts to be read to the jury. Ms.

Medina was arrested in Denver on unrelated charges on September 1, 2005, the same

day the transcripts were read to the jury. The Denver Sheriff informed the Adams

County Sheriff of Ms. Medina’s arrest by fax on September 2, 2005, and again on

September 6, 2005. There is no indication anyone who participated in the Adams

5
County investigation into Ms. Dotson’s murder knew about Ms. Medina’s arrest

before September 7, 2005.

B. State-Court Trial

Mr. Acosta’s trial began on August 29, 2005. The prosecution called four lay

witnesses and eight law enforcement witnesses. Brenda Masters testified that Ms.

Dotson came to her house the day before the murder. Ms. Dotson told Ms. Masters

she was scared that Mr. Acosta was going to kill her because she had wrecked his

car.

Ben Medina met Mr. Acosta in jail.2 Mr. Medina testified that Mr. Acosta told

him he “killed some chick and threw her in a trash can” and the police “found his

hand print and blood.”

Favian Acevedo testified that when he went to the apartment the day after Ms.

Dotson was slain, Mr. Acosta and Ms. Dillon admitted they killed Ms. Dotson and

said they needed help with the body. Mr. Acevedo also attested that he saw Ms.

Dotson’s body wrapped in black bags and that he witnessed Mr. Acosta and Ms.

Dillon put the lifeless body in the trash.

The prosecution also presented evidence that eight of Mr. Acosta’s fingerprints

and seven of his palm prints were on the trash bags in which Ms. Dotson’s body was

wrapped, and that four of his fingerprints were on a roll of tape that was used.

Although Ms. Medina was unavailable to testify at trial, her deposition testimony

2
Although Ben Medina and Patricia Medina have the same last name, they are
not related and there is no indication in the record that they were acquainted.
6
featured prominently. The prosecution referenced her testimony during its opening

statement, had her testimony read to the jury during its case-in-chief, and relied on

her testimony during closing arguments to demonstrate Mr. Acosta was guilty of

first- and second-degree murder. The jury convicted Mr. Acosta of first-degree

murder and the court sentenced him to life without parole.

C. Direct Appeal

Mr. Acosta appealed the judgment of conviction, alleging numerous violations

of the Sixth Amendment. As relevant here, Mr. Acosta maintained the use of Ms.

Medina’s deposition testimony at trial violated his Confrontation Clause rights

because Ms. Medina was not actually unavailable. According to Mr. Acosta, the

prosecution simply failed to put forth sufficient effort to find her before trial. He also

argued that he was denied the right to counsel at two critical stages during his case:

(a) on March 31, 2005, when he waived his right to a speedy trial, and (b) on April 6,

2005, when Ms. Medina was released from custody.

First, the CCA held that the prosecution “engaged in good faith, reasonable

efforts to produce [Ms. Medina] at trial, and that she was unavailable for

Confrontation Clause purposes.”

Second, the CCA held that Mr. Acosta was not denied his right to counsel (a)

at the March 31, 2005 hearing because the trial court adequately advised him of his

rights; or (b) at the April 6, 2005 hearing because that hearing was a ministerial—not

a critical—stage of the criminal proceeding and thus neither Mr. Acosta nor his

counsel was required to be present.

7
 Additional details from the CCA’s decision are provided below in connection

with the legal issues presented.

D. Federal District Court

On September 8, 2016, Mr. Acosta filed his 28 U.S.C. § 2254 Petition for a

Writ of Habeas Corpus. As he did before the CCA, Mr. Acosta argued he was denied

the right to confront witnesses against him and to the assistance of counsel.

The district court first ruled the hearings held on March 31 and April 6, 2005,

were critical stages of the proceeding and therefore “the rulings of the [CCA] were

unreasonable determinations of fact and unreasonable applications of the law.” The

court next concluded the CCA’s determination that the prosecution engaged in good-

faith efforts to produce Ms. Medina “is an unreasonable determination of the facts.”

But the court denied relief, concluding that the constitutional violations were neither

structural errors requiring reversal nor harmful.

II. LEGAL STANDARDS

Before turning to the merits of Mr. Acosta’s appeal, we provide (A) the

standard of review and (B) an overview of the federal statute governing habeas relief.

A. Standard of Review

We review the district court’s “legal analysis of the state-court decision de

novo and its factual findings, if any, for clear error.” Smith v. Duckworth, 824 F.3d

1233, 1241–42 (10th Cir. 2016) (internal quotation marks omitted). We may affirm

the district court “on any basis supported by the record.” Richison v. Ernest Grp.,

Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

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 B. AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires

us to apply a “difficult to meet and highly deferential standard” in federal habeas

proceedings under 28 U.S.C. § 2254, one that “demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

(internal quotation marks omitted). When a petitioner includes in his habeas corpus

application a “claim that was adjudicated on the merits in State court proceedings,” a

federal court shall not grant relief on that claim under § 2254 unless the state-court

decision:

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

§ 2254(d)(1)–(2).

The statute’s reference to “clearly established Federal law, as determined by

the Supreme Court of the United States” “refers to the holdings, as opposed to the

dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.”

Williams v. Taylor, 529 U.S. 362, 412 (2000). “Federal courts may not extract clearly

established law from the general legal principles developed in factually distinct

contexts, and Supreme Court holdings must be construed narrowly and consist only

of something akin to on-point holdings.” Fairchild v. Trammell, 784 F.3d 702, 710

(10th Cir. 2015) (internal quotation marks omitted).

9
 A state-court decision is “contrary to” clearly established Supreme Court law

if it “applies a rule that contradicts the governing law set forth in [Supreme Court]

cases” or if it “confronts a set of facts that are materially indistinguishable from a

decision of [the] Court and nevertheless arrives at a result different from [that]

precedent.” Williams, 529 U.S. at 405–06. A state court need not cite, or even be

aware of, applicable Supreme Court decisions, “so long as neither the reasoning nor

the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8

(2002) (per curiam).

Moreover, a state-court decision is an “unreasonable application” of clearly

established Supreme Court law if the decision “correctly identifies the governing

legal rule but applies it unreasonably to the facts of a particular prisoner’s case.”

Williams, 529 U.S. at 407–08. While the term “unreasonable” is “difficult to define,”

“it is a common term in the legal world and . . . federal judges are familiar with its

meaning.” Id. at 410. And our inquiry is informed by the specificity of the governing

rule: “The more general the rule, the more leeway courts have in reaching outcomes

in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

But “[i]f a legal rule is specific, the range may be narrow” and “[a]pplications of the

rule may be plainly correct or incorrect.” Id. Importantly, “an unreasonable

application of federal law is different from an incorrect application of federal law.”

Williams, 529 U.S. at 410. Thus, a federal court “may not issue the writ simply

because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly”; “that

10
application must also be unreasonable.” Id. at 411. “[E]ven a strong case for relief

does not mean the state court’s contrary conclusion was unreasonable.” Harrington v.

Richter, 562 U.S. 86, 102 (2011).

III. DISCUSSION

On appeal, Mr. Acosta contends the district court applied the incorrect

harmless-error standard and erred when it concluded the denial of counsel was not a

structural error requiring reversal without a showing of prejudice. In response, the

State argues the CCA reasonably held that: (1) the prosecution engaged in good-faith

efforts to produce Ms. Medina at trial; and (2) the lack of counsel at the March 31,

2005 hearing was harmless, and the April 6, 2005 hearing was not a critical stage

requiring the presence of counsel. We first address the Confrontation Clause issue

before turning to the denial-of-counsel issue.

A. Confrontation Clause

The district court ruled the CCA’s holding that the prosecution’s efforts were

reasonable—and that Ms. Medina was therefore unavailable—was “an unreasonable

determination of the facts.” The district court identified several additional steps the

prosecution should have taken to locate Ms. Medina. For example, it reasoned that

the prosecution should have requested more restrictions at Ms. Medina’s release

hearing; the efforts to locate her should have begun immediately after her failure to

appear the following morning; an arrest warrant should have issued long before July

1, 2005; and the local jails should have been contacted to see if she had been picked

up for a street crime, as she ultimately was on September 1, 2005, during trial. But

11
the district court declined to grant Mr. Acosta any relief, concluding that the CCA

reasonably determined that any error was harmless. In doing so, the court appeared to

apply a sufficiency-of-the-evidence analysis. Mr. Acosta argues the district court

erred by applying a sufficiency-of-the-evidence test instead of the harmless-error test

mandated by Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

Recognizing we owe the district court’s ruling no deference, the State argues

the CCA’s determination was neither contrary to, nor an unreasonable application of,

clearly established Supreme Court law, nor based on an unreasonable determination

of the facts. Thus, according to the State, we need not address the district court’s

harmless-error analysis, which it concedes was erroneous. We agree with the State.

1. Clearly Established Supreme Court Law

The Sixth Amendment’s Confrontation Clause, made applicable to the states

through the Fourteenth Amendment, see Pointer v. Texas, 380 U.S. 400, 406 (1965),

provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to

be confronted with the witnesses against him,” U.S. Const. amend. VI. The Clause

prohibits the admission of testimonial hearsay against a defendant unless (1) the

declarant is “unavailable” at trial and (2) the defendant had a prior opportunity to

cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). We

are here concerned with only the “unavailable” element.

The clearly established Supreme Court law for unavailability claims like the

one here is found in Ohio v. Roberts, 448 U.S. 56 (1980), and Barber v. Page, 390

U.S. 719 (1968). See Hardy v. Cross, 565 U.S. 65, 69–70 (2011) (per curiam) (citing

12
Roberts and Page as the clearly established federal law in an AEDPA case about an

unavailable witness). These decisions teach that “[a] witness is not ‘unavailable’ for

purposes of the . . . exception to the confrontation requirement unless the

prosecutorial authorities have made a good-faith effort to obtain [her] presence at

trial.” Roberts, 448 U.S. at 74 (quoting Barber, 390 U.S. at 724–25). “The lengths to

which the prosecution must go to produce a witness is a question of reasonableness.”

Id. (internal quotation marks omitted). “The ultimate question is whether the witness

is unavailable despite good-faith efforts undertaken prior to trial to locate and present

that witness.” Id.

“One, in hindsight, may always think of other things” the prosecution could

have done. Id. at 75. But “[t]he law does not require the doing of a futile act.” Id. at

74. “Thus, if no possibility of procuring the witness exists . . . , ‘good faith’ demands

nothing of the prosecution.” Id. If, however, “there is a possibility, albeit remote, that

affirmative measures might produce the declarant, the obligation of good faith may

demand their effectuation.” Id. Contrary to the district court’s assertion, whether the

facts found concerning the prosecution’s efforts to produce the witness support the

legal conclusion that it acted in good faith is a mixed question of law and fact. Cook

v. McKune, 323 F.3d 825, 831 (10th Cir. 2003). Under AEDPA, it is reviewed for an

“unreasonable application of clearly established Federal law.” Id.

Turning to that clearly established law, the Supreme Court in Barber held that

the prosecution failed to engage in a good-faith effort to secure the presence of a

declarant incarcerated in a federal penitentiary in a neighboring state. 390 U.S. at

13
723–25. Although the prosecution could have brought the declarant to court by

seeking a writ of habeas corpus ad testificandum, the prosecution “made absolutely

no effort to obtain [his] presence . . . at trial other than to ascertain that he was in a

federal prison outside” the jurisdiction. Id. at 723–24.

In contrast, the Court held in Roberts that the prosecution had discharged its

“duty of good-faith effort.” 448 U.S. at 75. The prosecution issued five subpoenas to

the witness at her parents’ home in the four months before trial and spoke to her

mother on multiple occasions. Id. at 59–60. During those conversations, the witness’s

mother told the prosecution that she had no knowledge of her daughter’s whereabouts

or of any “way to reach [her] even in an emergency.” Id. at 75. The Court held that

the prosecution’s efforts were sufficient: “[i]t was [an] investigation at the last-

known real address, and it was conversation with a parent who was concerned about

her daughter’s whereabouts.” Id. at 76. The Court reached its conclusion of good

faith even though the prosecution knew several months prior to trial that a social

worker from San Francisco had called the mother after the witness had applied for

government assistance, and thus the prosecution could have attempted to locate the

social worker or otherwise taken additional steps to find the witness. Id. at 75. The

Court concluded the prosecution was not required to undertake those additional steps,

for “[o]ne, in hindsight, may always think of other things.” Id. at 75. “[T]he great

improbability that such efforts would have resulted in locating the witness, and

would have led to her production at trial, neutralize[d] any intimation that a concept

of reasonableness required their execution.” Id. at 76.

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2. The CCA’s Determination

The CCA began its analysis of this issue by citing Roberts for the proper legal

standard: “To show unavailability of a witness in the constitutional sense, the party

asserting unavailability must show that good faith, reasonable efforts were made to

produce the witness for trial, but without success.” And it indicated, correctly, that

“[g]ood faith does not require the exhaustion of every possible means of securing a

witness’s presence, especially if the means available appear futile or the witness is in

a position to frustrate efforts to compel her attendance.”

The CCA then highlighted the significance of Ms. Medina’s testimony, noting

that she was “the only eyewitness of the crime located by police” and that Mr. Acosta

“was charged with[] first degree murder, [which] is a crime of utmost seriousness.” It

next reviewed the testimony of the two witnesses who testified about the

prosecution’s efforts to locate Ms. Medina at the evidentiary hearing held by the trial

court.

A.D. [an investigator for the district attorney’s office] testified that she
was assigned to locate and hand serve [Ms. Medina]. To this end, A.D.
went to [Ms. Medina’s] prior known address, the address listed on a
traffic citation [Ms. Medina] received, and visited the post office nearest
[Ms. Medina’s] last known address to see if [Ms. Medina] filed a
change of address form. Despite these efforts, A.D. testified that she
was unable to locate [Ms. Medina].

M.L. [a detective with the Westminster Police Department] testified
about his knowledge of [Ms. Medina’s] living situation and his prior
conversations with [Ms. Medina]. Information from various sources
indicated that she had no permanent residence and lived “on the streets”
in the vicinity of East Colfax Avenue in Denver. [Ms. Medina] told
M.L. that there was no location where he would be able to contact her,
and that the best way to contact her was through her grandfather. M.L.

15
 stated that he had a good rapport with the grandfather, who was “the one
person from [Ms. Medina’s] family who had been cooperative with the
police.” M.L. stated he had had “at least a half-dozen” bi-weekly
conversations with the grandfather, seeking to locate [Ms. Medina], the
most recent of which was two days before the hearing. M.L. had told the
grandfather that if [Ms. Medina] contacted him, he was to call police
and try to hold her so that police could pick her up.

M.L. also testified that he enlisted the aid of the Special Crime Attack
Team (SCAT) unit of the police to search for [Ms. Medina]. The SCAT
unit looked for her at the same Denver address at which she had earlier
been arrested. They also looked for her on the streets in areas she was
known to frequent. M.L. also made a search for her along Colfax
Avenue.

Testimony of M.L. also established that police had been given
information that [Ms. Medina] might have secreted herself in order to
avoid testifying. Other information supplied to police indicated that a
person who might have been her “pimp” might have been limiting her
“freedom to come and go and that this guy was keeping a pretty good
lid on her.”

The CCA also recounted that Ms. Medina had twice failed to appear for

hearings and had failed to comply with bond conditions, resulting in her being

held in custody to ensure her appearance at Ms. Dillon’s trial. It also observed

that once released, Ms. Medina again disappeared.

In view of these findings, the CCA concluded that “the People engaged

in good faith, reasonable efforts to produce [Ms. Medina] at trial, and that she

was unavailable for Confrontation Clause purposes.” In reaching that

conclusion, the CCA rejected Mr. Acosta’s argument that the prosecution

could have done more, stating, “good faith may not require the exhaustion of

every possible means of securing the witness’s presence, especially if the

means available appear futile, or if the witness may be in a position to frustrate

16
efforts to compel her attendance.” The CCA further noted that Mr. Acosta

“offers nothing to indicate that [Ms. Medina], who disregarded previous

subpoenas to appear, would have obeyed a subpoena issued by the People.”

Finally, it declined “to adopt a holding that would require a witness, such as

[Ms. Medina], who has a demonstrated propensity not to appear, to be held in

custody for over five months solely to ensure attendance at trial.”

3. Analysis

Although not entirely clear, Mr. Acosta seems to urge us to apply de novo

review to the unavailability issue. But the CCA resolved this issue on the merits, so

we must apply AEDPA’s deferential standard of review. See 28 U.S.C. § 2254(d).

Under that standard, Mr. Acosta must establish that the CCA unreasonably applied

clearly established Supreme Court law when it concluded the prosecution engaged in

reasonable, good-faith efforts to produce Ms. Medina at trial.

As we now explain, we hold that the CCA correctly articulated the controlling

Sixth Amendment standard, accurately summarized the investigators’ pretrial

testimony about their efforts to find Ms. Medina, and reasonably concluded the

prosecution engaged in good-faith efforts to produce Ms. Medina at trial. Recall that

the investigators:

 checked Ms. Medina’s last known addresses;

 visited the post office to see if Ms. Medina had filed a change of address form;

 obtained information from “various sources” indicating Ms. Medina had no
permanent residence, lived on the streets, and was in hiding to avoid testifying;

17
  spoke twice a week with Ms. Medina’s grandfather, who was “the one person
from [her] family who had been cooperative with police”;

 enlisted the aid of the SCAT unit, which looked for Ms. Medina at her prior
Denver address and on the streets in areas she was known to frequent; and

 personally searched for Ms. Medina along Colfax Avenue.

Unlike Barber, the prosecution did far more than make “absolutely no effort”

to obtain Ms. Medina’s presence at trial. See 390 U.S. at 723. And like Roberts, the

prosecution investigated Ms. Medina’s last known addresses, investigated whether

Ms. Medina had changed addresses, and spoke with a concerned relative on multiple

occasions. See 448 U.S. at 75–76. Whether the prosecution made a good-faith effort

is a question of reasonableness. See id. at 74. The standard is a general one, so the

range of reasonable applications is substantial. See Meras v. Sisto, 676 F.3d 1184,

1191 (9th Cir. 2012) (Bea, J., concurring in part and concurring in judgment)

(determining whether the prosecution made a good-faith effort to produce a witness

is “hard,” because the Court has “rarely addressed what it means to be ‘unavailable’

for Confrontation Clause purposes”); cf. Harrington v. Richter, 562 U.S. 86, 105

(2011) (noting the “reasonableness” standard for ineffective-assistance-of-counsel

claims is “a general one, so the range of reasonable applications is substantial”). The

CCA’s holding that the prosecution engaged in a good-faith effort to produce Ms.

Medina at trial falls within that range of reasonable applications. See Williams v.

Taylor, 529 U.S. 362, 410 (2000) (stating “an unreasonable application of federal

law is different from an incorrect application of federal law”).

18
 Mr. Acosta and the district court believe the CCA’s conclusion is unreasonable

because the prosecution failed to undertake several other steps it could have taken to

find her. Their arguments are unavailing.

First, Mr. Acosta and the district court fault the state trial court for not

imposing more restrictions on Ms. Medina or obtaining more information about her

brother and her future whereabouts. Mr. Acosta also argues that the trial court should

have kept Ms. Medina detained until his new counsel entered their appearances. And

Mr. Acosta insists it was reckless for the trial court to release Ms. Medina as a “test”

in view of her prior failures to appear. But the issue is not whether the court should

have imposed more restrictions on Ms. Medina, obtained more information, or kept

her detained; the issue is, after Ms. Medina was released, whether the prosecution

engaged in good-faith efforts to produce her at trial. See Roberts, 448 U.S. at 74.

Second, Mr. Acosta argues the prosecution had other information or leads it

did not pursue. For instance, the prosecution did not visit Ms. Medina’s grandfather’s

house; did not check her arrest records, which would have revealed that she had been

arrested on September 1, 2005, the same day her deposition testimony was read to the

jury;3 did not contact or visit her mother, sister, or brother; and did not speak with the

officer who spoke to her four days after the murder.

But the Sixth Amendment does not require the prosecution to exhaust every

possible means of producing a witness at trial. See Roberts, 448 U.S. at 75; see also

3
This argument also fails because the focus is on whether the prosecution
made good-faith efforts to produce the witness “prior to trial,” not during trial. Ohio
v. Roberts, 448 U.S. 56, 74 (1980) (emphasis added).
19
Hardy, 565 U.S. at 71. Indeed, in Roberts, the Court held the prosecution engaged in

good-faith efforts to produce the witness, even though the prosecution had a lead it

did not pursue: it knew a social worker in San Francisco had called the witness’s

mother, yet the prosecution did not attempt to locate the social worker or take other

steps to find the witness in San Francisco. 448 U.S. at 75–76. Similarly, here, the

prosecution’s failure to take additional steps does not render its efforts unreasonable,

especially under AEDPA’s deferential standard of review. The “deferential standard

of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a

state court’s decision on the question of unavailability merely because the federal

court identifies additional steps that might have been taken.” Hardy, 565 U.S. at 72.

“[I]f the state-court decision was reasonable, it cannot be disturbed.” Id. Here, the

CCA reasonably applied clearly established Supreme Court law when it determined

Ms. Medina was unavailable at the time of trial. Thus, its decision cannot be

disturbed.4

B. Denial of Counsel
The district court ruled the CCA unreasonably held that Mr. Acosta was not

denied counsel at (1) the March 31, 2005 hearing where Mr. Acosta waived his

statutory right to a speedy trial, and (2) the April 6, 2005 hearing where the trial court

released Ms. Medina on supervised release. The district court explained Ms. Medina

4
Because we conclude the CCA did not err, we need not address whether the
district court applied the incorrect harmless-error standard to Mr. Acosta’s
Confrontation Clause claim.

20
was a crucial witness and “keeping her in custody was critical to the opportunity to

confront her testimony with a live cross-examination.” It concluded “[t]he

importance of the right of confrontation of this critical witness weighs heavily in

favor of a finding that these were critical stages of this prosecution and warrants a

determination that the rulings of the [CCA] were unreasonable determinations of fact

and unreasonable applications of the law.” But the court declined to grant relief,

concluding the denial-of-counsel violations were neither structural nor harmful

errors.

On appeal, Mr. Acosta argues the district court erred because the denial-of-

counsel violations are structural errors requiring reversal without a showing of

prejudice. He also argues that, even if those violations are subject to harmless-error

analysis, the district court erred by failing to apply the Brecht test. In response, the

State argues the CCA reasonably applied clearly established Supreme Court law

when it determined that Mr. Acosta was not deprived counsel at (1) the March 31,

2005 hearing because the absence of counsel was harmless, and (2) the April 6, 2005

hearing because that proceeding was not a critical stage. Assuming for purposes of

analysis that the CCA unreasonably applied clearly established Supreme Court law

when it held Mr. Acosta was not denied counsel at the two hearings, we conclude the

violations were neither structural nor harmful errors.

1. Clearly Established Supreme Court Law

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the

accused shall . . . have the Assistance of Counsel for his defence.” U.S. Const.

21
amend. VI. The Supreme Court has interpreted this provision as guaranteeing a

defendant the right to have counsel present at all “critical” stages of the criminal

proceedings. United States v. Wade, 388 U.S. 218, 227–28 (1967). A critical stage is

a proceeding between a defendant and an agent of the state—whether “formal or

informal, in court or out,” id. at 226—that amounts to a “trial-like confrontation[],”

at which counsel can “aid in coping with legal problems or [provide] assistance in

meeting his adversary,” United States v. Ash, 413 U.S. 300, 312–13 (1973). See

Rothgery v. Gillespie Cty., 554 U.S. 191, 212 n.16 (2008).

In some of its earlier decisions, the Supreme Court had held that the assistance

of counsel “is among those ‘constitutional rights so basic to a fair trial that their

infraction can never be treated as harmless error.’” Holloway v. Arkansas, 435 U.S.

475, 489 (1978) (quoting Chapman v. California, 386 U.S. 18, 23 (1967)). For

example, the Holloway Court stated that, “when a defendant is deprived of the

presence and assistance of his attorney, either throughout the prosecution or during a

critical stage in, at least, the prosecution of a capital offense, reversal is automatic.”

Id. And in United States v. Cronic, 466 U.S. 648, 659 (1984), while discussing when

a defendant need not show a constitutional violation caused him to suffer prejudice,

the Court said: “Most obvious, of course, is the complete denial of counsel. The

presumption that counsel’s assistance is essential requires us to conclude that a trial

is unfair if the accused is denied counsel at a critical stage of his trial.” See also id. at

659 n.25 (“The Court has uniformly found constitutional error without any showing

22
of prejudice when counsel was either totally absent, or prevented from assisting the

accused during a critical stage of the proceeding.”).

More recently, however, the Court has explained that not all constitutional

violations, including Sixth Amendment violations, require automatic reversal.

Satterwhite v. Texas, 486 U.S. 249, 256 (1988). Some violations may be subject to

harmless-error analysis. Id. Whether an error requires automatic reversal or may be

subject to harmless-error analysis depends on whether it is a “structural error” or a

“trial error.” Brecht, 507 U.S. at 629–30. Structural error—which requires automatic

reversal—involves a defect in the “trial mechanism” that “infect[s] the entire trial

process,” id., affecting “the framework within which the trial proceeds” “from

beginning to end,” Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991). Trial

error—which is subject to harmless-error analysis—occurs “during the presentation

of the case to the jury, and is amenable to harmless-error analysis because it may be

quantitatively assessed in the context of other evidence presented in order to

determine the effect it had on the trial.” Brecht, 507 U.S. at 629 (internal quotation

marks omitted).

In Satterwhite, the Court explained that “Sixth Amendment violations that

pervade the entire proceeding” “can never be considered harmless.” 486 U.S. at 256

(emphasis added). As a result, Sixth Amendment structural error exists when “the

deprivation of the right to counsel affected—and contaminated—the entire criminal

proceeding.” Id. at 257; see, e.g., Penson v. Ohio, 488 U.S. 75, 88–89 (1988)

(presuming prejudice where there was a complete denial of counsel on appeal);

23
Holloway, 435 U.S. at 490–91 (rejecting request to conduct harmless-error analysis

and instead automatically reversing where a conflict of interest in representation

existed throughout the entire proceeding); White v. Maryland, 373 U.S. 59, 60 (1963)

(per curiam) (automatically reversing where the absence of counsel from the

arraignment proceeding affected the entire trial because defenses not asserted were

irretrievably lost); Hamilton v. Alabama, 368 U.S. 52, 55 (1961) (same). To the

contrary, Sixth Amendment violations that do not pervade the entire proceeding are

subject to harmless-error review. See, e.g., Satterwhite, 486 U.S. at 258 (applying

harmless-error review where psychiatric testimony was admitted at a capital

sentencing in violation of the Sixth Amendment); Coleman v. Alabama, 399 U.S. 1,

9–11 (1970) (requiring harmless-error review where defendant was denied counsel at

the preliminary hearing but the prosecution was prohibited from using anything that

occurred at that hearing at trial); see also United States v. Lott, 433 F.3d 718, 722–23

(10th Cir. 2006) (summarizing when an error is structural versus when an error is

subject to harmless-error review).

When harmless-error review applies, the type of analysis required depends on

whether the issue comes to us on direct appeal or on federal habeas review. See

Brecht, 507 U.S. at 623. When the issue comes on direct appeal, the Chapman

harmless-error standard applies. Id. at 622–23. Under that standard, the inquiry is

whether the state has proved “beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained.” Satterwhite, 486 U.S. at 258–59 (quoting

Chapman, 386 U.S. at 24). When the issue comes to us on habeas review, however,

24
we must apply the less-onerous Brecht standard. Brecht, 507 U.S. at 623. Under that

standard, the inquiry is whether the constitutional violation “had substantial and

injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946)). “[T]he Brecht standard ‘subsumes’ the

requirements that § 2254(d) imposes when a federal habeas petitioner contests a state

court’s determination that a constitutional error was harmless under Chapman.”

Davis v. Ayala, 135 S. Ct. 2187, 2198 (2015).

2. The CCA’s Decision

The CCA first laid out the general rule that “[a] criminal defendant has the

right to counsel at every critical stage of a proceeding.” It next defined a “critical

stage” as any stage “where there exists more than a ‘minimal risk’ that the absence of

the defendant’s counsel might impair the defendant’s right to a fair trial.” Then citing

Von Moltke v. Gillies, 332 U.S. 708, 723 (1948) (plurality opinion), the CCA

explained that “[t]he constitutional right of an accused to be represented by counsel

invokes, of itself, the protection of a trial court, in which the accused—whose life or

liberty is at stake—is without counsel.” And that to discharge this duty, the trial court

must investigate “as long and as thoroughly” as the circumstances demand to

determine whether the strong presumption against waiver of the constitutional right

to counsel has been overcome.

The CCA then analyzed the March 31, 2005 hearing, concluding that no Sixth

Amendment violation had occurred:

25
 [W]hen the Public Defender’s Office withdrew as defense counsel, the
trial court advised [Mr. Acosta] that in order to preserve his
constitutional right to counsel, he would have to waive his statutory
right to speedy trial. The trial court then determined that [Mr. Acosta]
made a knowing, voluntary, and intelligent waiver of his statutory
speedy trial right. Given the unequivocal indication by the Public
Defender’s Office that it had an irreconcilable conflict in its
representation of [Mr. Acosta], the court was required to appoint
alternative counsel for [him]. And to enable new defense counsel to
prepare adequately for trial in this first degree murder case, the court
appropriately granted a continuance. In these circumstances, the trial
court’s advisement to [Mr. Acosta] was sufficient to protect [his]
constitutional rights. Therefore, we conclude that although [Mr. Acosta]
was not represented by counsel when he waived his speedy trial right,
the trial court’s inquiry was sufficient to protect his constitutional
rights, and thus [Mr. Acosta’s] Sixth Amendment right to counsel was
not violated.

The CCA then turned to the April 6, 2005 hearing:

At the hearing, the trial court discussed with [Ms. Medina] her prior
disappearances after being released from custody and told her that she
would be put back in jail if she did not report as required, and that the
district attorney would provide her with transportation to the court to
help ensure her attendance at trial. The court then released [Ms.
Medina] on a personal recognizance bond.

A similar issue was presented to a division of this court in People v.
Moltrer, 893 P.2d 131 (Colo. App. 1994). In that case, neither the
defendant nor his counsel was present at a hearing concerning a material
witness’s appearance. Addressing the defendant’s argument that this
was a critical stage of the criminal action and that by not having him or
his counsel present, his right to counsel was violated, the division held
that this was a ministerial stage, not a critical stage of the criminal
action, and thus there was no violation. Id. at 1333. We agree with the
reasoning in Moltrer and adopt it here.

Ultimately, the CCA concluded that the hearing on Ms. Medina’s release “was not a

critical stage of [Mr. Acosta’s] criminal proceeding and thus neither his presence nor

that of his counsel was required.”

26
3. Analysis

The district court ruled the CCA unreasonably rejected Mr. Acosta’s claim that

he was denied counsel at the March 31, 2005 hearing where he waived his statutory

right to a speedy trial, and at the April 6, 2005 hearing when the trial court released

Ms. Medina on supervised release. Mr. Acosta urges us to adopt this conclusion, but

to correct the district court’s harmless-error analysis, arguing the denial of counsel

was structural error requiring automatic reversal. He also maintains that, even if the

denial of counsel was not structural error, he is entitled to relief because the error was

not harmless under Brecht.

Following Mr. Acosta’s lead, we assume without deciding that the district

court correctly ruled the CCA unreasonably rejected Mr. Acosta’s claim that he was

denied counsel at the two hearings. The question, then, is whether these errors, either

individually or together, constitute structural error triggering automatic reversal. As

stated, structural error exists when “the deprivation of the right to counsel affected—

and contaminated—the entire criminal proceeding.” Satterwhite, 486 U.S. at 257.

The Sixth Amendment cases finding structural error generally involve a complete

denial of counsel during the entire criminal proceeding. But here, while Mr. Acosta

may have been denied counsel at the two hearings, he had counsel for the remainder

of his criminal proceeding, including trial and sentencing. Mr. Acosta maintains the

errors contaminated the entire proceeding because “[t]he denial of counsel violations

are the ‘but for’ causes that led to [his] loss of his confrontation right.” He explains:

27
 But for [Mr.] Acosta waiving speedy trial on March 31, [Ms.] Medina
would not have been released; but for her release on April 6[,] she
would not have disappeared; but for her disappearance, her deposition
would not have been used at trial; but for her deposition being used at
trial, [Mr.] Acosta would not have lost his right of confrontation and
could not have been convicted of first degree murder.

Thus, Mr. Acosta premises his “contamination” argument on the existence of a

Confrontation Clause violation. But as explained above, the CCA reasonably applied

clearly established Supreme Court law when it concluded that Ms. Medina was

unavailable and that Mr. Acosta’s right to confrontation was not violated.

To the extent Mr. Acosta contends his deprivation of counsel at the March 31,

2005 hearing caused the loss of an identified right because he waived his right to a

speedy trial, he does not contest the trial court’s conclusion that he knowingly and

intelligently waived that right. And he fails to explain how that waiver affected and

contaminated the entire criminal proceeding, aside from insisting it resulted in a

Confrontation Clause violation. We conclude that the denial of counsel at the two

hearings is not structural error.

Having concluded that automatic reversal is inappropriate, we must next

determine whether the denials of counsel were harmless, i.e., whether they had a

“substantial and injurious effect or influence” on the verdict. Brecht, 507 U.S. at 623

(internal quotation marks omitted). We are convinced that the lack of counsel at both

hearings, and Mr. Acosta’s waiver of his statutory right to speedy trial, had no impact

on the verdict. Mr. Acosta’s new counsel entered their appearances on April 8, 2005,

and they continued to represent him during trial and sentencing. Mr. Acosta does not

28
contend he received inadequate representation during those stages. He instead argues

the errors were harmful because they resulted in the admission of Ms. Medina’s

deposition transcripts in violation of his right to confrontation. In other words, he

again premises his argument on the admission of the transcripts and their effect on

the verdict. But because the CCA reasonably held that Ms. Medina was unavailable,

that the transcripts were properly admitted at trial, and that Mr. Acosta’s right to

confrontation was not violated, we conclude that any error was harmless.

IV. CONCLUSION

We affirm the district court’s judgment denying Mr. Acosta’s 28 U.S.C.

§ 2254 petition.

29