D.C. No. 1:12-CV-01363-WYD, D. Colo.
Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.
ORDER AND JUDGMENT
Terrence L. O'Brien, United States Circuit Judge
Jose Pena, a Colorado state prisoner, wants to appeal from the denial of his 28 U.S.C. § 2254 habeas petition. His request for a Certificate of Appealability (COA) and his application to proceed on appeal without prepayment of fees were also denied. He renews those requests with this Court. His COA application is limited to two issues: (1) a Miranda claim and (2) the dismissal of two of his evidentiary claims (Claims 2(c) and 4) for failure to exhaust state court remedies. We deny a COA on the first issue. We grant a COA on the second and reverse.
Pena beat fourteen-year-old Claudia Zamora to death. The motive: Zamora had accused Pena of raping her, causing him to be charged with sexual assault on a child. After being on the lam for eight years, he was arrested in New Mexico using an assumed name. He was extradited to Colorado where he was tried and convicted of first degree murder. For this crime, he was sentenced to life in prison without the possibility of parole. His conviction was affirmed by the Colorado Court of Appeals; the Colorado Supreme Court denied certiorari review. The state trial court denied his Colo. R. Crim. P. 35(c) motion for post-conviction relief, the Colorado Court of Appeals affirmed, and the Colorado Supreme Court again denied certiorari review.
Pena then filed this pro se § 2254 habeas petition raising several issues. While the district court's orders disposed of all issues, only two are relevant here. First, he argues the state trial court erroneously admitted a post-arrest statement he made to a detective in violation of Miranda. He also claims his right to a fair trial was violated by the admission at trial of improper evidence. See infra n.5. Consistent with the labels assigned in the district court, we will refer to this evidentiary issue as Claims 2(c) and 4.(R. Vol. 1 at 48.)
The district judge denied relief. First, he decided the Colorado Court of Appeals' conclusion that the detective's remarks were not "interrogation" triggering the warnings required by Miranda was neither contrary to nor an unreasonable application of clearly established law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). The detective's remarks did not offend the principles laid down in Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) ("Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."), or Miranda, 384 U.S. at 444 (holding an individual subject to "custodial interrogation" must be advised of certain rights including the right to remain silent and the right to the presence of an attorney).
Next, the judge concluded Pena failed to exhaust Claims 2(c) and 4 in the state courts and the claims would be procedurally barred under Colorado law because he failed to timely present them. See 28 U.S.C. § 2254(b)(1)(A); see also Bland v. Sirmons, 459 F.3d 999, 1011-12 (10th Cir. 2006). Pena had labeled his claims on direct appeal as asserting a due process violation, but the district judge concluded the label was insufficient for purposes of exhaustion because Pena had failed to make arguments based on federal law or cite to any Supreme Court authority in his direct appeal brief; instead, he had relied only on Colorado case law. See Anderson v. Harless, 459 U.S. 4, 5-7 (1982) (claim on direct appeal that jury instruction was erroneous did not fairly present due process challenge to instruction for exhaustion purposes); Picard v. Connor, 404 U.S. 270, 276-77 (1971) (holding habeas petitioner failed to fairly present federal claim to state court where, despite presenting all necessary facts, petitioner failed to assert specific argument he later tried to raise in federal court); Thomas v. Gibson, 218 F.3d 1213, 1221 n.6 (10th Cir. 2000) (holding petitioner's general state court claim was insufficient to exhaust his later, more specific federal habeas claim).
A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). 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 make such a showing, an applicant must demonstrate "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) (quotation marks omitted). When the district judge's ruling rests on procedural grounds, he must show both "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
The district judge properly addressed and resolved the Miranda claim. The propriety of that decision is not debatable. However, the judge erred in concluding Pena had failed to exhaust Claims 2(c) and 4. He concluded Pena only raised state claims in his direct appeal, leaving related but insufficiently identified and argued federal claims unexhausted. But Colorado treats all constitutional claims raised on direct appeal as federal claims unless they are clearly identified as Colorado constitutional claims. See, e.g., People v. Mershon, 874 P.2d 1025, 1030 n.2 (Colo. 1994); People v. Gann, 724 P.2d 1318, 1320 (Colo. 1986). Likewise, federal law looks to the "substance" of claims made on direct appeal; if any of the claims can be said to "fairly present, " expressly or by clear implication, a federal constitutional claim then exhaustion requirements have been satisfied as to those claims. See Picard, 404 U.S. at 275, 278.
Because Pena's § 2254 petition is a very near image of his direct appeal brief, we consider it in deciding whether a federal claim has been fairly stated. If one has, then under the rules of construction set forth in Mershon/Gann and Picard, the claim was exhausted in state court. That said, the dispositive question is whether Pena's § 2254 petition, specifically Claims 2(c) and 4, state a federal constitutional claim or only a state law claim not cognizable under § 2254. See § 2254(a); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[F]ederal habeas corpus relief does not lie for errors of state law.") (quotations omitted).
Claims 2(c) and 4 involve the admission of evidence, which Pena alleges was improper and sufficiently momentous to offend due process guarantees. The focus is on the admission, as res gestae, of out-of-court statements by the victim accusing Pena of physical and sexual assault and the admission of evidence that witnesses had been intimidated and possibly killed and the male members of Pena's family were violent toward women. See supra n.5.
Affording Pena's pro se § 2254 petition a most solicitous construction, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), the "substance" of Claims 2(c) and 4 is that the admitted evidence was so unduly prejudicial as to deny him a fair trial. His allegations rather thinly state a federal due process claim. See Payne v. Tennessee, 501 U.S. 808, 825 (1991) ("In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief."); see also Ochoa v. Workman, 669 F.3d 1130, 1144 (10th Cir. 2012). And because Claims 2(c) and (4) mirror those raised in state court, they were exhausted.
Accordingly, we must remand for consideration of Claims 2(c) and (4) which were adjudicated by the Colorado Court of Appeals, albeit in a somewhat summary fashion. On remand, the district court must decide whether a state court's decision (addressing Claims 2(c) and 4) 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); see also Harrington v. Richter, 131 S.Ct. 770, 785 (2011) ...