(D.C. No. 1:14-CV-00271-RPM) (D. Colo.)
Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Gregory A. Phillips Circuit Judge
A Colorado jury convicted Ronald Gilbert of two counts of sexual misconduct: first, for unlawful sexual contact on T.L., an at-risk victim, and second, for unlawful sexual contact on C.L. The Colorado Court of Appeals (CCA) affirmed. Gilbert filed a petition for habeas relief under 28 U.S.C. § 2254, complaining of two errors. First, Gilbert asserted that the trial court violated the Confrontation Clause when it prohibited him from fully cross-examining two witnesses. Second, Gilbert argued that the CCA violated the Ex Post Facto Clause when it refused to require the trial court to make specific findings as required by a state statute. The district court denied relief.
Gilbert now wishes to challenge the district court's decision. But before he may do so, he must obtain a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(A). We may issue a COA only if the petitioner makes a "substantial showing of the denial of a constitutional right." § 2253(c)(2). That showing requires a petitioner to demonstrate that reasonable jurists could debate whether his petition should have been resolved differently. Miller-El v . Cockrell , 537 U.S. 322, 336 (2003). We conclude that Gilbert has failed to make that substantial showing. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we DENY his request for a COA and DISMISS this appeal.
In September 2008, Gilbert stopped his van and called out to T.L., who is mentally disabled, and asked him several times if he wanted a ride. After initially declining, T.L. agreed to take a ride, telling Gilbert that he was looking for work. Soon afterward, Gilbert grabbed T.L.'s groin, saying "I want some of this." Appellant's App. at 11 (citing People v. Gilbert, No. 10CA2670, at *1 (Colo. Ct. App. April 11, 2013) (unpublished)). T.L. asked that Gilbert let him out of the van, and Gilbert did so.
About a year later, in August 2009, Gilbert stopped his van and called out to C.L., asking him if he needed work. C.L. responded that he did and got into the van. Gilbert arranged to pick up C.L. at his house thirty minutes later. After doing so, Gilbert put his hand on C.L.'s knee, moved his hand up his thigh, and touched his groin. Gilbert asked, "Do you like that?" Appellant's App. at 11. C.L. replied that he did not and asked Gilbert to drive him home, which he did. After getting away from Gilbert, C.L. called police. When Gilbert was arrested, he made incriminating statements to the arresting officer.
On the day trial was to begin, the state requested a continuance under Colo. Rev. Stat. § 18-1-405(6)(g)(I), informing the trial court that a material witness—the deputy who had arrested Gilbert—recently had lapsed into a diabetic coma and was hospitalized in intensive care. The state needed the deputy to testify about Gilbert's incriminating statements upon arrest. After learning that the deputy might soon be released from intensive care (although not necessarily the hospital), the court sent the sheriff to the hospital to get more precise information. Upon returning, the sheriff reported that his deputy was "not lucid at all." Appellant's App. at 16. The prosecutor then opined that "[at] this point, I don't believe he's going to be [lucid] in the next few days." Id.
Faced with this situation, the court granted the state's motion for continuance, resetting trial to start in about three and a half months. In doing so, the court generally and impliedly found that there was good cause for the continuance, and the deputy's unavailability was unavoidable and unenforceable.
At trial, C.L. testified about Gilbert's sexual assault, and Gilbert sought to impeach his credibility by cross-examining him about a previous forgery adjudication against him. Responding to the state's objection that C.L. committed the forgery as a juvenile, Gilbert clarified that he did not seek to introduce the juvenile adjudication itself, but instead merely the prior bad act. The court prohibited the impeachment, and Gilbert did not argue that doing so violated his right to confront witnesses against him.
Also at trial, after a vague reference by T.L. that Gilbert understands to be about an unrelated prior sexual encounter of some sort, Gilbert sought to cross-examine T.L. about that supposed encounter. The trial court prohibited Gilbert from asking such questions— this time over his objection—finding it impermissible under Colorado's rape-shield statute, Colo. Rev. Stat. § 18-3-407 (2012). Ultimately, the jury convicted Gilbert on both counts—unlawful sexual contact of T.L., an at-risk victim, and one count of unlawful sexual contact of C.L. The trial court sentenced Gilbert to four years of intensive supervised probation.
Gilbert appealed to the Colorado Court of Appeals. In an unpublished opinion, the CCA affirmed. That court first concluded that the trial court did not violate Gilbert's right to a speedy trial when it granted a continuance. The CCA noted that, although the trial court failed to make an explicit finding under § 18-1-405(6)(g)(II), the record demonstrated that the court had enough information to reasonably conclude that the hospitalized deputy would be able to testify at a later date. The CCA also concluded that the trial court did not abuse its discretion by excluding C.L.'s forgery and T.L.'s supposed prior unrelated sexual encounter. The Colorado Supreme Court denied certiorari.
Gilbert then filed an application for habeas corpus relief in federal district court under 28 U.S.C. § 2254. He argued that the CCA's refusal to require the trial court to make specific findings under § 18-1-405(6)(g)(II) amounted to an ex post facto judicial modification of that statutory requirement. He also argued that the trial court violated his rights to due process and confrontation by prohibiting him from impeaching C.L. with his prior bad act of forgery (as opposed to impeaching him with the juvenile adjudication of forgery itself) and from inquiring into T.L.'s nonresponsive, single-utterance supposedly about his recollection of an earlier, unrelated sexual encounter.
In a brief, two-page order, the federal district court denied relief after considering each issue on the merits. Addressing Gilbert's speedy trial/ex post facto claim, the federal district court concluded that he didn't present a claim under the U.S. Constitution because he merely asserted "that the Colorado Court of Appeals revised previous law concerning the state statute." Appellant's App. at 6. Addressing the confrontation claim, the district court concluded that the trial court didn't abuse its discretion when it prohibited Gilbert from questioning C.L. about the forgery and T.L. about a supposed prior sexual encounter. The district court found neither a confrontation nor a due process violation.
Standard of Review
A petitioner is required to obtain a COA before he can appeal the denial of any final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1). To receive a COA, a petitioner must make a "substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). A petitioner must demonstrate that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El, 537 U.S. at 336. As here, where a state court has decided a petitioner's claims on the merits, we must defer to that decision. Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004); 28 U.S.C. § 2254(d).
Thus, Gilbert must show that the CCA's adjudication of his claims "(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." 28 U.S.C. § 2254(d). The state court's factual findings are presumed to be correct unless rebutted by clear and convincing evidence. Hooks v. Workman, ...