Matthews v. Bonner

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT April 1, 2015
Elisabeth A. Shumaker
Clerk of Court
DONOVAN CRAIG MATTHEWS,
Petitioner - Appellant,
v. No. 15-1011
BOBBY BONNER, Warden; (D. Colorado)
CYNTHIA COFFMAN, the (D.C. No. 13-cv-01876-RBJ-KLM)
Attorney General of the State of
Colorado, 
Respondents - Appellees.
ORDER DENYING A CERTIFICATE OF APPEALABILITY
AND DISMISSING THE APPEAL
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
The present appeal grew out of a wedding celebration between
Mr. Matthews and his new bride. According to the prosecution, the
celebration ended when Mr. Matthews beat his new wife with a
baseball bat and brass knuckles. Mr. Matthews was convicted on state
charges of assault and illegal possession of a weapon.

Pursuant to Fed. R. App. P. 43(c)(2) John Suthers is replaced by Cynthia
Coffman as the Attorney General of the State of Colorado.
After unsuccessfully appealing and seeking certiorari in state
court, Mr. Matthews sought federal habeas relief. The federal district
court denied relief, and Mr. Matthews wants to appeal on two
grounds:
1. Waiver of Miranda Rights. Mr. Matthews could not waive
his Miranda rights because he was intoxicated.
2. Substitution of Counsel. The trial court should have
appointed another attorney because Mr. Matthews was
dissatisfied with his legal representation.
In addition, Mr. Matthews seeks leave to proceed in forma pauperis.
We dismiss the appeal. Because Mr. Matthews is unable to
appeal, his application for leave to proceed in forma pauperis is
moot.
Request for a Certificate of Appealability
To appeal, Mr. Matthews needs a certificate of appealability.
28 U.S.C. § 2253(c)(1)(A) (2012). For the certificate, Mr. Matthews
must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2012). This showing exists only if
reasonable jurists could find the district court’s rulings debatable or
wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Laurson v.
Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). We conclude the
rulings are not reasonably debatable or wrong.
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I. Validity of the Miranda Waiver
All agree that Mr. Matthews was intoxicated when he talked to
the police. Based in part on this intoxication, Mr. Matthews moved to
suppress the evidence of his statements, arguing that he was unable
to understand his Miranda rights. The trial court conducted an
evidentiary hearing and denied the motion. 1 In doing so, the trial
court found that Mr. Matthews had understood the warnings when he
waived his Miranda rights. Tr. Mot. to Suppress 134, 137-39, Colo.
v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo. Dist. Ct. Nov. 30,
2007).
“Whether [Mr. Matthews] understood his Miranda rights is a
question of fact.” Valdez v. Ward, 219 F.3d 1222, 1231 (10th Cir.
2000). Because the state district court decided this factual question,
we regard the court’s finding as presumptively correct. 28 U.S.C.
§ 2254(e)(1) (2012). To rebut this presumption, Mr. Matthews had to
present clear and convincing evidence that the court’s factual
determination was incorrect. Id.
Mr. Matthews did not present any such evidence to the federal
district court or to us. In state court, one detective testified that Mr.
1
The record on appeal does not include the proceedings on the
motion to suppress. But, we take judicial notice of these proceedings.
See Barnes v. United States, 776 F.3d 1134, 1137 n.1 (10th Cir.
2015).
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Matthews had been oriented to his surroundings and had given
responsive answers. Tr. Mot. to Suppress 52-53, Colo. v. Matthews,
No. 07-CR-1097 (Adams Cnty., Colo. Dist. Ct. Nov. 30, 2007).
Another officer added that Mr. Matthews had acknowledged he
understood his rights, had not expressed an inability to understand
the discussion, and had answered in a manner that was appropriate
and responsive. Id. at 72-74, 83-84. Under these circumstances, any
reasonable jurist would conclude that Mr. Matthews failed to rebut
the presumption of correctness with clear and convincing evidence.
II. Alleged Failure to Appoint a New Attorney
In addition, Mr. Matthews contends that the trial court should
have appointed new counsel when the attorney-client relationship
broke down. This contention is not reasonably debatable.
At the preliminary hearing, Mr. Matthews asked for a new
attorney, then said he would try to find an attorney. 2 Roughly four
2
The transcript of the preliminary hearing is not in our record on
appeal. But, we take judicial notice of the transcript. See note 1,
above. The transcript shows the following discussion between Mr.
Matthews and the court:
The Court: . . . And then you’re gonna hire your own
attorney, Mr. Matthews?
Mr. Matthews: Ah, I would like to at least try to get another
state-appointed one toward me.
The Court: Well, you . . .
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weeks later, Mr. Matthews attended court with the same attorney, and
no one said anything about the need to appoint a new attorney. See
Tr., passim, Colo. v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo.
Cnty. Ct. June 6, 2007); see also note 1, above (discussing judicial
notice). The trial court assumed that Mr. Matthews no longer wanted
appointment of a new attorney, and the Colorado Court of Appeals
Mr. Matthews: . . . until I can, until then, Sir.
The Court: Well, no, I mean, you’ve got one appointed
right now.
Mr. Matthews: Yeah, I know that but evidently she doesn’t
want to work with me, so.
The Court: Well, that’s neither here nor there, so you hire
your own or you’re . . . she’s on board . . .
doesn’t matter to me. Do you want to try and
hire your own?
Mr. Matthews: I guess so.
The Court: Okay. That’s fine. Let me re-set this and give
you some time.
* * * *
Mr. Matthews: I’ve got paperwork that I need to give you,
too, Sir.
The Court: Well, you have your . . . when you hire your
attorney, they can file it.
Tr. at 2-4, Colo. v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo.
Cnty. Ct. May 9, 2007).
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found that Mr. Matthews had abandoned his request for substitute
counsel.
If we were to entertain an appeal, Mr. Matthews would need to
overcome the Colorado Court of Appeals’ factual finding that he had
abandoned his request for appointment of new counsel. See Batchelor
v. Cain, 682 F.3d 400, 407 (5th Cir. 2012) (“Whether [the petitioner]
abandoned his Faretta motion and thereby waived his right to
represent himself is a question of fact.”). This finding would be
presumptively correct unless Mr. Matthews presented clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1)
(2012).
Mr. Matthews has not presented any such evidence either in
federal district court or on appeal. Thus, his argument for reversal is
not reasonably debatable.
III. Summary
Because no reasonable jurist could credit either of Mr.
Matthews’s arguments, we deny a certificate of appealability and
dismiss the appeal.
In Forma Pauperis
Mr. Matthews seeks not only a certificate of appealability, but
also leave to proceed in forma pauperis. Because we have dismissed
the appeal, the application for pauper status is dismissed on the
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ground of mootness. Johnson v. Keith, 726 F.3d 1134, 1136 (10th
Cir. 2013) (denying leave to proceed in forma pauperis on the ground
of mootness upon denial of a certificate of appealability).
Entered for the Court
Robert E. Bacharach
Circuit Judge
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