FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 7, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARCELLO MALDONADO
PEREZ,
Petitioner-Appellant,
v. No. 17-1324
(D.C. No. 1:15-CV-02552-RBJ)
LOU ARCHULETA, Warden, (D. Colo.)
F.C.F.; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents-Appellees.
_________________________________
ORDER DENYING A CERTIFICATE OF APPEALABILITY *
_________________________________
Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
Mr. Marcello Maldonado Perez, a Colorado state prisoner appearing
pro se, seeks a certificate of appealability to appeal the district court’s
denial of habeas relief. We deny a certificate and dismiss the appeal.
1. Background
Mr. Perez was convicted in Colorado state court of kidnapping,
sexual assault, and felony murder based on the fatal stabbing of a
*
This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value under Fed. R.
App. P. 32.1(a) and 10th Cir. R. 32.1(A).
convenience store clerk. After unsuccessfully appealing and seeking
post-conviction relief in state court, Mr. Perez sought federal habeas relief
based on
1. violation of the Fifth Amendment through questioning without
a Miranda warning,
2. violation of the constitutional right to a complete defense by
excluding certain evidence regarding alternate suspects for the
crimes,
3. denial of a fair trial by allowing the prosecution to present
evidence of prior bad acts,
4. deprivation of due process by giving a flight instruction to the
jury, and
5. ineffective assistance of trial counsel. 1
The district court dismissed all of the claims. Because the dismissals were
not reasonably debatable, we deny Mr. Perez’s request for a certificate of
appealability.
2. Appellate Jurisdiction
The threshold issue involves our jurisdiction.
Appellate jurisdiction hinges on the timely filing of a notice of
appeal. Smith v. Barry, 502 U.S. 244, 245 (1992). This notice was due 30
days after the filing of the judgment. Fed. R. App. P. 4(a)(1)(A).
1
In his habeas petition, Mr. Perez also claimed ineffective assistance
on his direct appeal. But Mr. Perez did not raise this claim in his
application for a certificate for appealability.
2
The notice of appeal was filed on September 12, 2017, which was
more than 30 days after the district court’s judgment. But within the
30-day deadline, Mr. Perez had filed motions seeking leave to appeal in
forma pauperis and appointment of counsel. In these motions, Mr. Perez
identified the appellate issues and clarified that he intended to appeal the
denial of his habeas application. 2 By identifying the appellate issues and
the district court ruling, Mr. Perez supplied the functional equivalent of a
notice of appeal, triggering our appellate jurisdiction. See Smith, 502 U.S.
at 248-49; Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007).
3. The Applicable Standard for a Certificate of Appealability
Mr. Perez must obtain a certificate to appeal the district court’s
denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). To obtain a
certificate, Mr. Perez must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C.§ 2253(c)(2). When a district court rejects a
claim on the merits, the petitioner must demonstrate “that reasonable
jurists would find the district court’s assessment of the constitutional
claim[] debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
2
Mr. Perez alleged that he had included a timely notice of appeal in
the package containing the two motions, and the two motions were filed on
August 23, 2017. The two motions also bear a certificate reflecting service
of a notice of appeal.
3
When a federal district court has dismissed a habeas petition on
procedural grounds, the petitioner must show that reasonable jurists could
debate
the validity of the constitutional claim and
the correctness the court’s procedural ruling.
Id. at 484-85.
We consider this burden against the overarching standard in district
court for habeas relief. When a state appellate court has adjudicated a
claim on the merits, the petitioner must demonstrate that the state court’s
decision was (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court,” or
(2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
This “highly deferential standard . . . 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). Deference is also required on
factual issues, where federal courts must presume the correctness of a state
court’s findings unless the petitioner presents clear and convincing
evidence to the contrary. 28 U.S.C. § 2254(e)(1).
4. Use of Statements Made Without a Miranda Warning
Mr. Perez claims that his statements were used at trial even though
he had been questioned without a Miranda warning. This claim lacks
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reasonable support under our precedents because Mr. Perez was not in
custody.
The Supreme Court has held that an individual is entitled to a
Miranda warning before a “custodial interrogation.” Miranda v. Arizona,
384 U.S. 436, 444 (1966). The interrogation is custodial when “there is a
formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983)
(internal quotation marks omitted).
To determine whether Mr. Perez was in custody, the court should
begin with “the circumstances surrounding the interrogation,” which
entails a factual question entitled to a presumption of correctness when
decided by a state court. Thompson v. Keohane, 516 U.S. 99, 112 (1995);
see 28 U.S.C. § 2254(e)(1). The court then decides whether reasonable
persons would have believed that they could end the interrogation and
leave. Thompson, 516 U.S. at 112 (footnote omitted). This is a mixed
question of law and fact, which turns on application of the legal standard
to the historical facts. Id. at 112-13.
Mr. Perez argued to the state trial court and on direct appeal that his
statements to detectives should have been suppressed based on the absence
5
of a Miranda warning. 3 In rejecting this claim on the merits, the Colorado
Court of Appeals held that Mr. Perez had not been in custody during this
questioning. The court summarized the circumstances:
The investigators asked permission to speak with [Mr. Perez];
they questioned him on his front porch; he did not know that
they had a warrant for his arrest; they asked general,
open-ended questions in a conversational tone; they did not
give defendant directions or orders; they did not restrict his
movements; and defendant reacted calmly to their presence and
to their questioning.
R. Vol. I at 464-65.
Mr. Perez argued in the district court that the state appeals court had
unreasonably applied governing legal principles. But his argument was
admittedly based on a version of events that conflicted with the state
appeals court’s factual findings, which are presumed correct. Id. at 485;
see 28 U.S.C. § 2254(e)(1).
Mr. Perez argues on appeal that reasonable persons would have
believed that they were in custody because
five police officers accompanied the detective who conducted
the questioning and
Mr. Perez was ordered to sit in a chair.
3
In the habeas petition, Mr. Perez also alleged violation of his
constitutional rights by the state courts’ failure to suppress statements that
he had made to his wife when she visited him in jail. But Mr. Perez did not
address this issue in his application for a certificate of appealability.
6
But the state appeals court found that the police had not ordered Mr. Perez
what to do or restricted his movements, and this finding is preemptively
correct. See 28 U.S.C. § 2254(e)(1). The state appeals court also
considered the presence of the other officers. Their presence does not
undermine the state appeals court’s ultimate conclusion on custody.
* * *
Reasonable jurists could not debate the district court’s ruling on
whether Mr. Perez had been in custody when questioned by the detectives.
Thus, we decline to issue a certificate of appealability on this issue.
5. Right to Present a Complete Defense
We also decline to issue a certificate on the claim involving a right
to present a complete defense.
This right is protected under the U.S. Constitution. See United States
v. Markey, 393 F.3d 1132, 1135 (10th Cir. 2004). Nonetheless, evidence
could be excluded if its probative value had been outweighed by other
factors, such as unfair prejudice, confusion of the issues, or potential to
mislead the jury. Colo. R. Evid. 403; see Taylor v. Illinois, 484 U.S. 400,
410 (1988) (“The accused does not have an unfettered right to offer
testimony that is . . . inadmissible under standard rules of evidence.”).
On direct appeal, Mr. Perez contended that the trial court had
violated his constitutional right to present a complete defense by excluding
evidence that other suspects (the Bautista brothers)
7
were serving life sentences for murder at the time of
Mr. Perez’s trial,
were violent, and
habitually carried knives.
The state appeals court concluded that the trial court had not abused its
discretion in excluding this evidence, reasoning that
the evidence regarding the Bautista brothers’ convictions and
sentences would have been relevant only for an impermissible
purpose and the conduct underlying their convictions did not
resemble the conduct being charged here,
the proffered testimony that the Bautista brothers were violent
and carried knives had been too remote in time to be relevant,
and
the trial court had “otherwise allowed the defense significant
latitude to introduce evidence about the Bautista brothers in an
effort to link them to the murder in this case.”
R. Vol. I at 473.
In his habeas petition, Mr. Perez renewed these arguments and
suggested error in excluding the requested evidence about the Bautista
brothers’ responsibility for the crimes. The district court concluded that
the record had not supported Mr. Perez’s contentions.
For the excluded evidence, the district court reasoned that
Mr. Perez had not shown that the exclusion was contrary to, or
resulted from an unreasonable application of, clearly
established federal law as established by the Supreme Court
and
8
even if the trial court had erred in excluding the evidence, the
error would have been harmless in light of the cumulative
nature of this evidence and the significant evidence supporting
Mr. Perez’s conviction.
Mr. Perez does not present a persuasive reason to question the district
court’s reasoning.
According to Mr. Perez, the state trial court prevented a fair
opportunity to present his defense. But Mr. Perez does not address the state
courts’ contrary findings or the federal district court’s rationale on
harmlessness. Under these circumstances, reasonable jurists could not
debate the district court’s ruling on this claim.
6. Admission of Evidence of Mr. Perez’s Prior Bad Acts
Mr. Perez also alleges violation of the Fourteenth Amendment’s right
to a fair trial by allowing the introduction of evidence that he had
previously kidnapped a convenience store clerk with a knife. The trial
court had admitted the evidence for the limited purpose of showing the
“defendant’s identity, modus operandi, and common plan/scheme.”
R. Vol. I at 469 (internal quotation marks omitted). Thus, the court
instructed the jury that the evidence could be considered only for this
purpose.
On direct appeal, the state appeals court upheld the trial court’s
decision under Colorado law, concluding that the potential for unfair
prejudice from this evidence had not substantially outweighed the
9
probative value. The court reasoned that the evidence had involved acts
sufficiently similar to the charged offense to bear on a permissible
purpose.
Under Supreme Court precedent, this evidentiary decision would
violate the U.S. Constitution only if the trial had been rendered
fundamentally unfair. See Estelle v. McGuire, 502 U.S. 62, 75 (1991)
(declining to hold that admission of prior-acts evidence violated due
process because its admission did not “so infuse[] the trial with unfairness
as to deny due process of law” (internal quotation marks omitted)). The
district court concluded that the ruling had not rendered the trial
fundamentally unfair because the evidence was relevant and a limiting
instruction had lessened the potential for unfair prejudice.
In his application for a certificate of appealability, Mr. Perez does
not challenge the district court’s reasoning; he instead argues that
admission of this evidence violated the Federal Rules of Evidence and
Colorado law. But the Federal Rules of Evidence do not apply to the trial
in state court (see Fed. R. Evid. 1101(a)), and “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions.” Estelle, 502 U.S. at 67-68. Thus, reasonable jurists could not
debate the correctness of the district court’s ruling on this claim.
10
7. Jury Instruction on Flight
Mr. Perez claims a denial of due process from the instruction that the
jury could consider flight as evidence of consciousness of guilt. On direct
appeal, Mr. Perez challenged the sufficiency of the evidence for the
instruction. The state appeals court rejected this challenge, concluding that
the instruction had fallen within the trial court’s discretion.
In district court, Mr. Perez argued that the jury instruction on flight
had improperly lessened the prosecution’s burden of proof. The district
court rejected this claim and regarded any constitutional error as harmless.
On appeal, Mr. Perez does not renew his argument on the burden of
proof or address the determination of harmless error. Instead, he asserts
only that the evidence did not support the jury instruction.
The state trial and appellate courts concluded that the fact-finder
could reasonably infer flight. In federal district court, Mr. Perez did not
challenge this conclusion. Nonetheless, the federal district court concluded
that the jury instruction had been supported by the evidence. This
conclusion is not reasonably debatable.
8. Ineffective Assistance of Trial Counsel
Mr. Perez also challenges the rulings rejecting his
ineffective-assistance claims based on his trial counsel’s failure to depose
the Bautista brothers, to elicit expert testimony about sexual assaults, to
seek suppression of certain statements based on the Sixth Amendment, and
11
to request dismissal based on the failure to preserve certain exculpatory
evidence.
The district court regarded these claims as procedurally defaulted,
which would generally preclude habeas relief. See Woodford v. Ngo,
548 U.S. 81, 93 (2006). But Mr. Perez argued in the district court that the
procedural default was excusable because these claims had merit and he
lacked an attorney in the post-conviction proceedings. See Martinez v.
Ryan, 566 U.S. 1, 14 (2012) (holding that a procedural default is excused
when the state failed to provide post-conviction counsel and
ineffective-assistance claims have some merit).
Even if the ineffective-assistance claims had not been subject to a
procedural default, they would have failed on the merits. The district court
concluded that these claims had lacked merit, and Mr. Perez does not
address the district court’s conclusion or rationale. He instead asserts a
new list of alleged deficiencies in his trial counsel’s performance. 4
4
The only claim touching on an issue presented in district court is that
his trial counsel was ineffective in failing to move for mistrial “when it
became known that the F.B.I. destroyed evidence from the case.”
Appellant’s Opening Br. at 14. In federal district court, Mr. Perez claimed
that his trial counsel should have moved for a mistrial based on the
government’s failure to preserve three specified items of allegedly
exculpatory evidence (fingerprints from a phone booth near the
convenience store, a cigarette butt from the convenience store, and
stomach contents of the victim). Mr. Perez did not link the FBI to the
failure to preserve this evidence in district court. Thus, the appellate
argument was not adequately raised in district court.
12
Our rule against considering unpreserved issues applies “not only
[to] a bald-faced new issue presented on appeal, but also [to] situations
where a litigant changes to a new theory on appeal that falls under the
same general category as an argument presented below.” Owens v.
Trammell, 792 F.3d 1234, 1246 (10th Cir. 2015) (internal quotation marks
and brackets omitted). Mr. Perez is not entitled to appellate review of these
additional incidents of ineffective assistance because he did not present
them in district court. See id.
9. Statute of Limitations
Mr. Perez also wants to appeal whether the trial court had erred in
finding that he had been charged with sexual assault within Colorado’s
statute of limitations. But this issue was waived through omission in the
habeas petition. See Grant v. Royal, 886 F.3d 874, 909 (10th Cir. 2018).
10. Conclusion
Because the rulings are not reasonably debatable, we deny the
request for a certificate and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
13