Cordova v. Soares

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 11, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

RONALD L. CORDOVA,

Petitioner-Appellant,

v. No. 04-1379
(D.C. No. 02-K-1914 (OES))
RICK SOARES, Warden, KEN (D. Colo.)
SALAZAR, Attorney General of the
State of Colorado,

Respondents-Appellees.

ORDER DENYING A CERTIFICATE OF
APPEALABILITY

Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.

Ronald L. Cordova, a state prisoner proceeding pro se, requests a certificate

of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 petition.

For substantially the same reasons set forth by the district court, we DENY

Cordova’s request for a COA and DISMISS.

Having shot and killed his wife, and having wounded three of her

companions, Cordova was charged with one count of first-degree murder, one

count of first-degree assault by means of a deadly weapon, two counts of second-

degree assault by means of a deadly weapon, and one count of committing a crime
of violence. He entered a plea of not guilty by reason of insanity. Following a

separate jury trial on the issue of sanity, he was found sane and permitted to enter

a plea of not guilty by reason of impaired mental condition. A jury found him

guilty of all charges, but the judgment was reversed by the Colorado Supreme

Court and his case was remanded for a new trial, after which he was once again

found guilty of all charges. He is presently serving a life sentence for murder,

forty years’ imprisonment for first-degree assault, sixteen years for second-degree

assault, and a concurrent sentence for a misdemeanor.

Cordova appealed his conviction, and filed multiple motions for post-

conviction relief in state court. All relief having been denied, Cordova filed a

§ 2254 petition in federal court, repeating most of the claims raised in state court.

He presented well over fifty claims to the court below, challenging various

aspects of his sanity trial, his first trial on the merits, his second trial on the

merits, and the state appellate and post-conviction proceedings. Because Cordova

presented a mixed petition containing exhausted and unexhausted claims, the

district court, upon the magistrate judge’s recommendation, appropriately

reviewed all claims and denied the petition on the merits. See Moore v.

Schoeman, 288 F.3d 1231, 1232 (10th Cir. 2002); see also Rhines v. Weber, 125

S. Ct. 1528, 161 L. Ed. 440, 451 (2005) (“the district court would abuse its

discretion if it were to grant [petitioner] a stay when his unexhausted claims are

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plainly meritless.”). His request for a COA having been denied below, Cordova

now seeks a COA from this court and presents most of the same arguments that he

presented to the district court. 1

With respect to claims concerning the sanity trial and the first trial on the

merits, the district court concluded that these claims are moot because they

pertain solely to a conviction already overturned by the Colorado Supreme Court.

This conclusion accords with the Colorado Court of Appeals’ refusal on mootness

grounds to hear challenges to the sanity trial and the first trial on the merits. See

People v. Cordova, No. 00CA1007, slip op. at 3 (Colo. App. Nov. 1, 2001). We

discern no error in the district court’s conclusion.

In reviewing Cordova’s exhausted claims, the court applied AEDPA’s

demanding standard that, if a claim is adjudicated on the merits in state court, a

1
Cordova’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only
if the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Cordova to show “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.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Cordova a
COA, he may not appeal the district court’s decision absent a grant of COA by
this court.

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federal court will grant habeas relief only if that adjudication 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 “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)(1)–(2).

The court thoroughly reviewed Cordova’s claims in light of this standard and

denied relief. In his application before us, Cordova has failed to make “a

substantial showing of the denial of a constitutional right” as to these claims.

§ 2253(c)(2).

When reviewing Cordova’s unexhausted claims, the court below concluded

that the claims were defaulted in state court pursuant to an independent and

adequate state procedural rule, and that Cordova could neither show cause and

prejudice for the default nor demonstrate that failure to consider his claims would

result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501

U.S. 722, 750 (1991). Nevertheless, the court exhaustively reviewed the merits of

Cordova’s claims and concluded that even absent the procedural bar, he would not

be entitled to habeas relief.

We agree with the district court’s analysis on all claims presented and

DENY the application for COA and DISMISS. We GRANT Cordova’s motion

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to proceed in forma pauperis.

ENTERED FOR THE COURT

Carlos F. Lucero
Circuit Judge