FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 9, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
DEAN CARBAJAL,
Petitioner - Appellant,
v. Nos. 19-1249 & 19-1445
(D.C. No. 1:18-CV-01501-PAB)
DEAN WILLIAMS, Executive Director of (D. Colo.)
CDOC; THE ATTORNEY GENERAL OF
THE STATE OF COLORADO,
Respondents - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Dean Carbajal, a pro se Colorado prisoner, seeks a certificate of appealability
(COA) to challenge the district court’s denial of his habeas petition filed under
28 U.S.C. § 2254. See id. § 2253(c)(1)(A) (No. 19-1445). He also appeals the denial
of a temporary restraining order (TRO) directing his immediate release from prison,
and the denial of a preliminary injunction directing that his criminal convictions be
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
these matters. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
vacated (No. 19-1249). We lack jurisdiction to consider the denial of the TRO and
the preliminary injunction, and we deny a COA to pursue the habeas appeal.
Accordingly, these matters are dismissed.
I. Background
A Colorado jury convicted Carbajal of multiple domestic-violence-related
charges. According to the Colorado Court of Appeals (CCA),
Carbajal[] and the victim dated for almost a year before they broke up in
early 2010. Soon after the breakup, a court issued a protection order,
prohibiting Carbajal from contacting the victim. Yet, Carbajal followed
the victim for the next few months, showing up at her house and
workplace. One night, Carbajal went to the victim’s house and,
according to her neighbors, was holding a knife, threatening to kill
himself. The victim’s neighbor called the police, who later found and
arrested Carbajal.
A jury found Carbajal guilty of five counts of protection order
violation, five counts of violating bail bond conditions, two counts of
burglary, two counts of criminal trespass, one count of kidnapping, and
two counts of harassment by stalking.
R., Vol. 1 at 455. Carbajal was also convicted of two counts of being a habitual
offender. The CCA upheld the convictions on direct appeal, and the state courts
denied post-conviction relief.
During the pendency of Carbajal’s direct appeal, he filed a previous § 2254
petition challenging his convictions in federal court. But because his direct appeal
was still pending with the CCA, the district court dismissed the petition for failure to
exhaust state remedies. Carbajal v. Lynn, No. 14-cv-2926-LTB (D. Colo. Aug. 10,
2015), ECF No. 34. We denied a COA. See Carbajal v. Lynn, No. 15-1344
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(10th Cir. Feb. 19, 2016). 1 After the CCA affirmed the convictions, Carbajal filed
his present § 2254 petition.
In his present § 2254 petition, Carbajal claimed his constitutional rights were
violated because the trial court:
• lacked subject matter jurisdiction over his case;
• admitted several out-of-court statements;
• was biased against him;
• joined the charges and denied a severance; and
• denied his motion to compel a psychological examination of the victim.
Based on his argument that the trial court lacked subject matter jurisdiction,
Carbajal sought a TRO directing his immediate release from prison and a preliminary
injunction directing that his criminal judgment be vacated. See R., Vol. 2 at 8.
The district court denied a TRO and a preliminary injunction, ruling it would
address Carbajal’s argument that the trial court lacked jurisdiction once briefing on
the merits was complete. Carbajal immediately appealed that ruling. Thereafter, the
district court denied the petition on the merits and denied a COA. Upon entry of
final judgment, Carbajal filed a motion to alter or amend the judgment under Fed. R.
Civ. P. 59(e), which the court denied. Carbajal then filed another notice of appeal.
1
The present § 2254 petition is not second or successive because dismissal of
the previous petition for lack of exhaustion was not a merits disposition. See Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000) (“A habeas petition filed in the district court
after an initial habeas petition was unadjudicated on its merits and dismissed for
failure to exhaust state remedies is not a second or successive petition.”).
3
Now in No. 19-1249, Carbajal appeals the denial of a TRO and a preliminary
injunction. And in No. 19-1445, he seeks a COA to challenge the district court’s
denial of two of his habeas claims.
II. No. 19-1249
We first dispense with Carbajal’s appeal from the denial of a TRO and a
preliminary injunction. Subject to certain exceptions not applicable here, the denial
of a TRO is not an appealable decision. Off. of Pers. Mgmt. v. Am. Fed’n of Gov’t
Emps., 473 U.S. 1301, 1303-05 (1985). Although the denial of a preliminary
injunction is appealable, see 28 U.S.C. § 1292(a)(1), Carbajal’s appeal is moot
because the district court has entered final judgment. An interlocutory appeal from
the denial of a preliminary injunction does not divest the district court of jurisdiction
to adjudicate the underlying merits of an action. See Colorado v. Idarado Mining
Co., 916 F.2d 1486, 1490 n.2 (10th Cir. 1990). If the district court proceeds to
adjudicate the merits of the action and enter final judgment, an appeal from the denial
of preliminary injunctive relief is moot because a preliminary injunction is intended
to provide only provisional relief during the pendency of the proceeding. See United
States ex rel. Bergen v. Lawrence, 848 F.2d 1502, 1512 (10th Cir. 1988). We
therefore dismiss Carbajal’s appeal from the denial of a TRO and a preliminary
injunction.
III. No. 19-1445
We turn then to Carbajal’s COA application. A COA is required to appeal the
denial of his § 2254 petition. 28 U.S.C. § 2253(c)(1)(A); see Miller-El v. Cockrell,
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537 U.S. 322, 336 (2003) (recognizing that COA requirement is a “jurisdictional
prerequisite”). We will issue a COA “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy
this standard, an applicant “must demonstrate 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). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), the district court cannot grant habeas relief for claims
adjudicated on the merits by a state court unless the state court’s decision “was
contrary to, or involved 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 “was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding,” id. § 2254(d)(2). In
considering whether to grant a COA, “[w]e look to the District Court’s application of
AEDPA to petitioner’s constitutional claims and ask whether that resolution was
debatable amongst jurists of reason.” Miller-El, 537 U.S. at 336. Our analysis
entails “a preliminary, though not definitive, consideration of the [legal] framework”
governing the claims. Id. at 338.
Carbajal seeks a COA to challenge the denial of two claims: (1) his claim that
the trial court lacked subject matter jurisdiction, and (2) his claim that the admission
of out-of-court statements violated his confrontation rights.
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A. The Trial Court’s Subject Matter Jurisdiction
Carbajal first claims he was denied due process and a fair trial because the trial
court lacked subject matter jurisdiction. He asserts the trial court lacked jurisdiction
because he was originally charged in several county court cases, which the
prosecution improperly consolidated into a single district court case without filing a
criminal information. He also says he was bound over for trial in violation of state
rules of procedure.
The CCA rejected this claim on direct appeal. The CCA explained that when a
case is bound over from the state county courts to the district courts, as occurred
here, the entire record is transferred and “the felony complaint, when transferred with
the record, ‘shall be deemed to be an information if it contains the requirements of an
information.’” R., Vol. 1 at 476 (quoting Colo. R. Crim. P. 7(b)(4)). The CCA ruled
that Carbajal’s complaint contained the requirements to be considered an
information, and when he was bound over for trial, the prosecution properly moved
to consolidate the cases in the district court and to amend the complaint to include all
the counts in one information. The trial court granted the motion.
On habeas review, the federal district court concluded that Carbajal’s claim
was not cognizable because it challenged the CCA’s resolution of state law, which
was binding on the federal court. Although Carbajal claimed the alleged violations
of state law were so egregious that they violated his due process rights, the district
court concluded that he failed to demonstrate a fundamental defect or structural error
suggesting that his due process rights were implicated.
6
Reasonable jurists would not debate the district court’s decision. Carbajal’s
claim is predicated almost entirely on alleged violations of state law, which are
beyond the purview of federal habeas relief. See Swarthout v. Cook, 562 U.S. 216,
219 (2011) (per curiam) (“[F]ederal habeas corpus relief does not lie for errors of
state law.” (internal quotation marks omitted)). Although he summarily asserts the
alleged violations of state law implicate his due process rights, “a mere error of state
law is not a denial of due process,” id. at 222 (internal quotation marks omitted). The
alleged state-law error must be “so grossly prejudicial that it fatally infected the trial
and denied the fundamental fairness that is the essence of due process.” Hooks v.
Workman, 689 F.3d 1148, 1180 (10th Cir. 2012) (internal quotation marks omitted).
Carbajal merely claims procedural errors under state law, but the CCA explained that
no error occurred because the felony complaint satisfied the requirements to be
deemed a criminal information. Nothing about these circumstances suggests such
gross prejudice as to deny Carbajal a fundamentally fair trial. The denial of this
claim is not reasonably debatable.
B. Admission of Out-of-Court Statements
Carbajal next claims the trial court violated his Sixth Amendment right to
confront adverse witnesses by admitting several out-of-court statements.
The Sixth Amendment 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 Confrontation Clause prohibits the “admission of
testimonial statements of a witness who did not appear at trial unless he was
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unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). But “the
Confrontation Clause does not bar the admission of [non-hearsay] statements.”
Williams v. Illinois, 567 U.S. 50, 57 (2012). “Hearsay” is an out-of-court statement
“offer[ed] in evidence to prove the truth of the matter asserted.” Fed. R. Evid.
801(c)(2).
Carbajal’s claim is predicated on several statements made by the victim (who
did not testify) to the following witnesses:
• Neighbor Ana Banales, who testified that she was awoken by the victim
screaming, “Ana,” and “Help me.” Tr. of Trial at 170, People v. Carbajal,
No. 10CR3824 (Nov. 30, 2011). Banales also testified that she observed a
man take the victim into her apartment crying and kicking and, moments later,
the victim ran from the apartment hysterically crying, “He’s going –
someone’s going to get killed,” which caused Banales to call the victim’s
mother. Id. at 182.
• Neighbor Vickie Baylon-Rawlins, who testified that she was awoken by the
victim screaming, observed the victim and a man with a large knife, and the
victim was crying and screaming, “He’s going to kill hi[m]self. He’s going to
kill hi[m]self. I thought he was going to kill me.” Id. at 49 (Dec. 1, 2011).
Baylon-Rawlins also testified that she yelled to another neighbor, Carmen
Horton, to call the police.
• Investigator Jeff Watts, who testified that the victim told him “there was a
bloody tissue that the defendant had used to wipe his hand off.” Id. at 235.
The victim indicated she told a police officer about the tissue, but the officer
declined to collect it because the suspect’s identity was already known. Watts
testified that because the victim told him “there was a bloody tissue that was
left behind by the suspect that was not collected by the officers,” he “collected
[it].” Id. at 59-60 (Dec. 2, 2011).
The trial court admitted these statements under various hearsay exceptions.
On direct appeal, the CCA reviewed for plain error because Carbajal objected only on
8
hearsay grounds, not under the Confrontation Clause. The CCA determined there
was no constitutional violation because these statements were not hearsay. The
district court concluded that the CCA’s decision was not contrary to, or an
unreasonable application of, federal law because the Confrontation Clause does not
bar the use of testimonial statements for purposes other than establishing the truth of
the matter asserted. See R., Vol. 3 at 141-42.
The district court’s decision is not reasonably debatable. The district court
correctly recognized that “[t]he [Confrontation] Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” Crawford, 541 U.S. at 59 n.9; see Williams, 567 U.S. at 57 (“[I]t is settled
that the Confrontation Clause does not bar the admission of [non-hearsay]
statements.”).
Carbajal merely asserts the statements were hearsay. Yet the CCA ruled that
the victim’s screams, “Ana” and “Help me,” were non-hearsay commands, and
Banales’s testimony of the victim’s other statements was not offered to prove that
someone would be killed, but to show that they caused her to call the victim’s
mother. Baylon-Rawlins’ testimony concerning the victim’s statements was offered
to show the victim’s state of mind—that she believed Carbajal might kill her or
himself. And Watts’ testimony concerning the victim’s statement about the
uncollected bloody tissue was offered to show that it caused him to take the tissue
into evidence. Although Carbajal contends use of these statements was a strategic
effort by the prosecution to spare the victim from having to testify, he fails to tether
9
this argument to the Sixth Amendment. 2 He also suggests that some of the
statements were testimonial because they were not made to the police in the midst of
an emergency. See Davis v. Washington, 547 U.S. 813, 822 (2006) (“[Statements]
are testimonial when the circumstances objectively indicate that there is no . . .
ongoing emergency, and that the primary purpose of the [police] interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”).
But even if the statements were testimonial, there was no violation of the
Confrontation Clause because the statements were not hearsay.
Carbajal also challenged statements made by Baylon-Rawlins and the victim to
the following witnesses:
• Neighbor Carmen Horton, who testified that Baylon-Rawlins knocked at her
door and when she opened the door, Baylon-Rawlins screamed at her to call
the police, causing her to call the police. See Tr. of Trial at 20-21, People v.
Carbajal, No. 10CR3824 (Dec. 1, 2011).
• Investigator Jeff Watts, who testified that the victim stated Carbajal had
broken into her apartment and threatened to kill himself. Id. at 231.
The trial court admitted these statements after Carbajal affirmatively indicated
he had no objection to the statements. See id. at 21 (Carbajal: “No objection, Your
Honor.”); id. at 231 (Carbajal: “No objection, Your Honor.”). The CCA refused to
2
To the extent Carbajal advances this argument on a due process theory, he
fails to show the statements were so grossly prejudicial that they fatally infected the
trial. See Wilson v. Sirmons, 536 F.3d 1064, 1101 (10th Cir. 2008) (“Absent a
showing that the admission of the evidence violated a specific constitutional
guarantee, a federal court on habeas review will not disturb the state court’s
evidentiary ruling unless it was so grossly prejudicial that it fatally infected the trial
and denied the fundamental fairness that is the essence of due process.” (internal
quotation marks omitted)).
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consider this aspect of the claim, ruling Carbajal waived any objection.
The district court did not specifically address Baylon-Rawlins’ statement, and
it rejected the challenge to the victim’s statement as non-hearsay. Nonetheless, “we
may deny a COA if there is a plain procedural bar to habeas relief, even though the
district court did not rely on that bar.” Davis v. Roberts, 425 F.3d 830, 834 (10th Cir.
2005). Here, the CCA refused to consider the propriety of allowing the statements
because Carbajal affirmatively waived any objection to them. That waiver
constitutes a procedural default. See LeBere v. Abbott, 732 F.3d 1224, 1233 & n.13
(10th Cir. 2013) (holding that application of Colorado’s waiver rule constitutes
procedural default, which this court has recognized in unpublished decisions as an
independent and adequate state-law ground precluding federal habeas review). To
overcome the procedural default, Carbajal must show cause and prejudice or a
fundamental miscarriage of justice. See Hamm v. Saffle, 300 F.3d 1213, 1216
(10th Cir. 2002). He does not attempt to make these showings, however, and thus his
attempt to challenge the statements is barred. 3
IV. Conclusion
For the foregoing reasons, we dismiss No. 19-1249, grant Carbajal’s motion to
proceed without prepayment of appellate fees in that appeal, and we remind him that
3
Although Carbajal sought to expand his claim in the district court to
challenge additional statements that he did not contest before the CCA, he is
procedurally barred from doing so. See Welch v. Workman, 639 F.3d 980, 994-95
(10th Cir. 2011) (declining to consider an expanded argument that petitioner failed to
raise on direct appeal).
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he remains obligated to pay the filing fees in full. In No. 19-1445, we deny a COA
and dismiss that matter.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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