Velarde v. Reid

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 17, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
EUG ENE V ELARDE,
Petitioner - A ppellant,
v.
No. 06-1545
(D.C. No. 03-CV-00615-RPM )
LARRY REID, W arden, Centennial
(D . Colo.)
C orrectional Facility; JO H N
SU THERS, Attorney General of the
State of Colorado,
Respondents - Appellees.
OR DER DENY ING A CERTIFICATE
OF APPEALABILITY
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Eugene V elarde, a Colorado state prisoner proceeding pro se, seeks a
certificate of appealability (“COA”) to appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the
district court, we D EN Y a COA and DISM ISS.
Velarde challenges his April 9, 1993 conviction, following a jury trial, for
distribution of a controlled substance and conspiracy to distribute a controlled
substance. He was sentenced under Colorado’s habitual criminal statute to life
imprisonment. Velarde sought relief on direct and collateral appeal in Colorado
state court before bringing a timely habeas petition in federal court. Although he
sought relief on additional grounds in his habeas petition to the district court,
Velarde limits his application for COA from this court to two claims: (1) He was
improperly denied his Sixth Amendment right of confrontation when the trial
court admitted tapes recorded by a Drug Enforcement Agency (“DEA”)
informant, Norma Lopez, of the charged drug transaction; and (2) His trial
counsel’s performance was constitutionally deficient due to counsel’s decision not
to impeach the credibility of Lopez.
A writ of habeas corpus as to either of Velarde’s claims may not issue
unless the state court adjudication: “(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). In
order to issue a COA, we must conclude 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. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). 1
1
The A ntiterrorism and Effective D eath Penalty Act conditions a
petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of
(continued...)
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W e turn first to Velarde’s argument that the admission of the Lopez
recordings violated his Sixth Amendment right under the Confrontation Clause.
Although the government intended for Lopez to testify, she was murdered days
after the charged transaction. Accordingly, it was forced to rely on tape
recordings of the transaction that were made by Lopez via a D EA-installed w ire
transmitter. W e are hamstrung in our review of this claim by Velarde’s failure to
include in the record the trial court’s written order denying his motion to suppress
the recordings. However, the transcript of the court’s pretrial discussion with
counsel indicates the court believed the recordings to be hearsay, but considered
them sufficiently reliable, as “real-world transactions [that] have the ring of truth
to them,” to be admitted under Colorado’s residual hearsay exception. See Colo.
R. Evid. 807. On direct appeal the Colorado Court of Appeals affirmed on
alternate grounds, holding that the recordings were admissible as res gestae
evidence. Relying on People v. Quintana, 882 P.2d 1366 (Colo. 1994) and People
v. Arnold, 826 P.2d 365 (Colo. Ct. App. 1991), the court of appeals determined
that the recordings w ere not hearsay, because they “were not offered for their
truth, but rather to illustrate the character of the charged crime – distribution of a
controlled substance and conspiracy to distribute.”
1
(...continued)
a COA. 28 U.S.C. § 2253(c)(1)(A).
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“In considering a C onfrontation Clause claim on habeas . . . we review a
state court decision by assessing whether it is reasonably supported by the record
and whether its legal analysis is constitutionally sound.” Paxton v. W ard, 199
F.3d 1197, 1209 (10th Cir. 1999). “As a general matter, federal habeas corpus
relief does not lie to review state law questions about the admissibility of
evidence, and federal courts may not interfere with state evidentiary rulings
unless [they] rendered the trial so fundamentally unfair as to constitute a denial of
federal constitutional rights.” M oore v. M arr, 254 F.3d 1235, 1246 (10th Cir.
2001) (quotations and citations omitted).
Several aspects of the recordings’ admission as res gestae evidence give us
pause, including: (1) the trial court’s failure to instruct the jury that they were
being admitted only as res gestae, see Quintana, 882 P.2d at 1379 (Erickson, J.,
concurring) (noting that res gestae was not at issue before the trial court); (2) the
fact that the recordings were made by an informant with a motive to direct the
conversations; and (3) the heavy reliance placed on the recordings as direct
evidence of the charged crime.
Nevertheless, we may not overturn the trial court’s decision to admit the
recordings absent some showing that their admission violated Velarde’s federal
constitutional rights, and no such showing has been made. Rather, the Colorado
Court of Appeals’ holding that the recordings were admissible as res gestae
evidence is a reasonable construction of Quintana. There is no question that the
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recordings are “linked in time and circumstances with the charged crime,” and
could be used to provide the jury “with a full and complete understanding of the
events surrounding the crime.” Quintana, 882 P.2d at 1373 (quotations omitted).
Velarde cites no Supreme Court or other federal case that casts doubt on
Quintana, nor are we aware of any Supreme Court case defining the constitutional
parameters of the admissibility of res gestae evidence. As a general matter,
contemporaneous recorded statements have long been considered admissible as
“verbal acts” of the declarant. See M ut. Life Ins. Co. v. Hillmon, 145 U.S. 285,
296 (1892) (“Such declarations are regarded as verbal acts, and are as competent
as any other testimony, when relevant to the issue. Their truth or falsity is an
inquiry for the jury.”). In short, we can discern no basis to grant Velarde COA on
this claim.
W e next turn to Velarde’s ineffective assistance claim. As noted by the
district court, this claim is procedurally defaulted because it was not raised in
state court proceedings and is now barred under Colorado law. See Colo. Rev.
Stat. § 16-5-402. W e are precluded from review ing claims defaulted on adequate
state procedural grounds unless Velarde demonstrates “cause and prejudice or a
fundamental miscarriage of justice.” Smith v. M ullin, 379 F.3d 919, 925 (10th
Cir. 2004). Because V elarde does not present evidence sufficient to meet these
standards, we are foreclosed from considering this claim on the merits. See
Cannon v. Gibson, 259 F.3d 1253, 1265-66 (10th Cir. 2001).
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Velarde’s request for a COA is DENIED and his petition is DISM ISSED.
Because we conclude that Velarde presents a “reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” M cIntosh v. U.S.
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted), we
G R A N T his motion to proceed on appeal in forma pauperis.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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