WILLIAM J. MARTINEZ, District Judge.
Applicant, Genero Zuniga, is a prisoner in the custody of the Colorado Department of Corrections (DOC) at the correctional facility in Sterling, Colorado. Mr. Zuniga, acting pro se, has filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging the validity of his conviction in Arapahoe County, Colorado, District Court Case No. 04CR1690. Respondents filed an Answer on July 11, 2014 (ECF No. 25), and Applicant filed a Reply on August 28, 2014, after obtaining an extension of time (ECF No. 31). Having considered the same, along with the state court record, the Court concludes that the Am ended Application should be denied.
Following a gang-related shooting, Mr. Zuniga was convicted in Arapahoe County District Court Case No. 04CR1690 of first-degree murder after deliberation, three counts of attempted first-degree murder after deliberation, conspiracy to commit first-degree murder after deliberation, and second-degree assault.
People v. Zuniga, No. 05CA1623 (Colo. Ct. App. May 13, 2010) (unpublished) (Zuniga I) (ECF No. 13-4, at 2-3).
Applicant was sentenced to a prison term of life without the possibility of parole, plus 128 years. (Id.). His convictions were affirmed on appeal in Zuniga I. (ECF No. 13-4).
On November 4, 2010, Mr. Zuniga filed a motion for postconviction relief pursuant to Colo. Crim. P. Rule 35(c), which was denied summarily by the state district court on December 1, 2010. (ECF No. 13-1, at 12; No. 13-9, at 2). The Colorado Court of Appeals affirmed the trial court's order in People v. Zuniga, No. 11 CA0072 (Colo. App. Oct. 4, 2012) (unpublished) (Zuniga II). (ECF No. 13-9). On April 29, 2013, the Colorado Supreme Court denied certiorari review. (ECF No. 13-10).
On August 21, 2013, Mr. Zuniga filed his original habeas corpus application (ECF No. 1) with the Court. Mr. Zuniga asserts the following claims in the Amended Applicaiton:
In an order entered on January 9, 2014, Magistrate Judge Boyd N. Boland directed Respondents to file a pre-answer response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise those affirmative defenses in this action. Respondents filed a Pre-Answer Response in which they conceded that the instant action was filed within the one-year limitation period set forth in 28 U.S.C. § 2244(d). (ECF No. 13, at 3-6). Respondents further conceded that claim 4 was exhausted in the state courts. (Id. at 10). Respondents argued, however, that claims 1, 2, 3 and 5 were procedurally barred. (Id. at 10-19).
On June 18, 2014, the Court entered an Order, dismissing claim 1 as procedurally defaulted. (ECF No. 21, at 22). The Court rejected Respondent's exhaustion/procedural default defense for claims 2, 3 and 5 and ordered Respondents to file an Answer within 30 days. (Id.).
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is whether the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
House, 527 F.3d at 1018.
The court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,
Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (internal quotation marks omitted). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 131 S.Ct. at 786 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Richter, 131 S.Ct. 786-87.
The court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Applicant is proceeding pro se. The court thus "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
For his second claim, Applicant contends that the elements instruction for complicity relieved the prosecution of its burden to prove every element of the crime beyond a reasonable doubt. (ECF No. 6, at 8-9).
The government must prove beyond a reasonable doubt every element of a charged offense. In re Winship, 397 U.S. 358 (1970). In the context of jury instructions, the constitutional inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard." Victor v. Nebraska, 511 U.S. 1, 6 (1994); see also Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (stating that federal habeas relief is not warranted unless the petitioner can establish that the challenged jury instruction so tainted the trial as to deprive him of due process). Further, jury instructions "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 71-72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
The complicity instruction given to the jury at Applicant's trial stated:
See CJI-Crim 6:04; COLO. REV. STAT. ("C.R.S.") § 18-1-603 (2004).
Applicant's trial counsel objected to the complicity instruction because it was "confusing."
On direct appeal, Applicant argued that the complicity instruction violated due process because it failed to instruct the jurors on the "dual mental state" required to find him guilty as a complicitor. (ECF No. 13-4, at 13). He further argued that the instructions did not clarify whether Applicant was being charged as a complicitor as to all or some of the charges. (ECF No. 13-2, at 35-36). Applicant contended that the trial court was obliged to explain to the jurors, in response to the jury's questions seeking clarification of complicity liability,
In Zuniga I, the Colorado Court of Appeals rejected Applicant's claim on the following grounds:
(ECF No. 13-4, at 14-17).
As an initial matter, the state appellate court's determination that the complicity instruction at Applicant's trial comported with Colorado law is binding on this federal habeas court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("This Court, however, repeatedly has held that state courts are the ultimate expositors of state law and that we are bound by their constructions except in extreme circumstances not present here.") (citations omitted). The Court does not perceive any constitutional error in this ruling. Indeed, in Bogdanov, the Colorado Supreme Court relied on federal due process principles in deciding that the pattern complicity instruction was constitutional. See Bogdanov, 941 P.2d at 249, 252.
The Court finds that the state appellate court's determination of Applicant's claim was consistent with controlling federal law. When the instructions are considered as a whole, there is no reasonable likelihood that the jury applied the complicity instruction in a way that lessened the prosecution's burden of proof, or otherwise violated the Constitution. The effect of the jury instructions, as a whole, was to require the prosecution to prove all of the elements of complicity beyond a reasonable doubt. As discussed in Section III.B, infra, there was sufficient evidence to support the jury's finding that the dual state of mind requirement was satisfied to convict Applicant under a complicity theory. Accordingly, Applicant is not entitled to federal habeas relief for his second claim.
In claim three, Applicant maintains that the verdicts were not supported by sufficient evidence. (ECF No. 6, at 8, 10). Specifically, he asserts that the evidence did not prove, beyond a reasonable doubt, that he intended to cause the death of the victim after deliberation. (Id.).
A constitutional challenge to the sufficiency of the evidence is governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction as a matter of due process if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Coleman v. Johnson, ___ U.S. ___, 132 S.Ct. 2060, 2064 (2012) (quoting Jackson, 443 U.S. at 319) (emphasis in the original). The Court looks at both direct and circumstantial evidence in determining the sufficiency of the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). A federal habeas court's review under Jackson is "sharply limited, and a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Turrentine v. Muffin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted). The Court "may not weigh conflicting evidence nor consider the credibility of witnesses," but must "`accept the jury's resolution of the evidence as long as it is within the bounds of reason.'" Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (q uoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
In applying Jackson, the Court looks to state law to determine the substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Valdez v. Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004).
In Zuniga I, the Colorado Court of Appeals applied a state law standard similar to the Jackson standard (ECF No. 13-4, at 17-18), and rejected Applicant's claim on the following grounds:
(Id. at 18-19).
The state court's factual findings are presumed correct and are supported by the state court record.
The Court finds and concludes that the Colorado Court of Appeals' resolution of Applicant's sufficiency of the evidence claim was consistent with the Jackson standard. Applicant therefore is not entitled to federal habeas relief for claim three.
For his fourth claim, Applicant asserts that trial counsel rendered ineffective assistance by failing to exercise a peremptory challenge. (ECF No. 6, at 11).
To prevail on an ineffective-assistance-of-counsel (IAC) claim, Applicant must show that: (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential. Id. at 689. Counsel's decisions are presumed to represent "sound trial strategy;" "[f]or counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted). Under the AEDPA standard of review, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788.
Prejudice exists when there is a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different. Strickland, 466 U.S. at 693. The likelihood of a different result must be substantial, not just conceivable. Id. The Court need not address both prongs of the Strickland inquiry if Applicant's claim fails on one. Id. at 697.
In Zuniga II, the Colorado Court of Appeals rejected Applicant's IAC claim on the following grounds:
(ECF No. 13-9, at 4-5).
The Court finds that the state appellate court's resolution of Applicant's IAC claim comported with Strickland because Applicant has not shown that he was prejudiced by counsel's failure to raise a peremptory challenge to the alternate juror. Applicant does not point to any evidence of juror bias. See Patton v. Yount, 467 U.S. 1025, 1035 (1984) (a juror is biased where he "ha[s] such fixed opinions that [he] could not judge impartially the guilty of the defendant."). That Applicant would have preferred a different juror does not establish that the juror who sat was impartial. See Hooks v. Workman, 689 F.3d 1148, 1176 (10
Accordingly, claim four is without merit and will be dismissed.
In claim five, Applicant contends that appellate counsel rendered ineffective assistance by failing to present issues concerning: (a) juror bias under Batson v. Kentucky, 476 U.S. 79 (1986); (b) prosecutorial misconduct during closing argument; (c) the omission of a unanimity instruction; (d) the unconstitutional use of a sentence enhancer; and, (e) the violation of Applicant's Fourth Amendment rights under Georgia v. Randolph, 547 U.S. 103 (2006). (ECF No. 6, at 12-15).
The Strickland standard also applies to claims of ineffective assistance of appellate counsel. See Cargle v. Muffin, 317 F.3d 1196, 1202 (10th Cir. 2003); Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988).
"[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)). A habeas court will consider the merits of a claim of ineffective assistance of appellate counsel where "the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal," or where "the omitted issue has merit but is not so compelling." Malicoat v. Mullin, 426 F.3d 1241, 1249 (10
Applicant claims that appellate counsel was ineffective in failing to assert a claim of juror bias under Batson. He argues that the prosecution's use of a peremptory challenge to excuse a female black juror was based on race because the proffered reason for excusal-that she Identif[ied] with" the Applicant because she had a son who was approximately the Applicant's age — was pretext for discrimination, as evidenced by the facts that other white jurors who had sons approximately the same age as Applicant were not excused. (ECF No. 6, at 12).
In Batson, the Supreme Court held that purposeful discrimination based on the race of a juror violates the Equal Protection Clause of the Fourteenth Amendment. 476 U.S. at 84. Batson provides a three-step analysis for determining whether a peremptory strike runs afoul of this rule: (1) the defendant must present a prima facie case by showing facts supporting an inference of discriminatory purpose; (2) if the defendant satisfies step one, the burden shifts to the government to provide a race-neutral justification; and (3) if the government can do this, the court then decides whether purposeful racial discrimination nonetheless occurred. See Johnson v. California, 545 U.S. 162, 168 (2005).
"A [race-]neutral explanation . . . means an explanation based on something other than the race of the juror." Hernandez v. New York, 500 U.S. 352, 360 (1991). See also Rice v. Collins, 546 U.S. 333, 338 (2006) ("Although the prosecutor must present a comprehensible reason, `[t]he second step of this process does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices.") (quoting Purkett v. Elem, 514 U.S. 765, 767-68, (1995) (per curiam)).
The final step involves evaluating "the persuasiveness of the justification" proffered by the prosecutor. Purkett, 514 U.S. at 768. "[T]he disproportionate exclusion of members of a certain race" may be considered "as evidence that the prosecutor's stated reason constitutes a pretext for racial discrimination." Hernandez, 500 U.S. at 363. A trial court's resolution of step three is entitled to great deference on appeal. Id. at 364-65.
"[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Purkett, 514 U.S. at 768.
In Zuniga II, the Colorado Court of Appeals applied the federal standards derived from Batson, see ECF No. 13-9, at 8, and rejected Applicant's claim on the following grounds:
(Id. at 8-9).
The Court finds that the state appellate court's resolution of Applicant's claim was a reasonable application of Batson. The state court record demonstrates that the trial court applied the three-step procedure mandated by the Supreme Court and concluded that the prosecutor's state reason for excusing the juror was race-neutral.
Because there is no "reasonably probability of a favorable result had [Applicant's] appellate counsel raised the omitted issue," Malicoat, 426 F.3d at 1249, claim 5(a) will be dismissed.
In claim 5(b), Applicant asserts that appellate counsel was ineffective in failing to raise the issue of prosecutorial misconduct during closing argument. Specifically, Applicant alleges that during closing remarks the prosecutor argued that if Applicant was convicted, he would get more tattoos showing that his crimes were a badge of honor. (ECF No. 6, at 13).
Habeas relief is appropriate when a prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 180 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also United States v. Young, 470 U.S. 1, 11 (1985) ("Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding."). In applying this demanding standard, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden, 699 F.2d at 1036; see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) ("not every improper or unfair remark made by a prosecutor will amount to a federal constitutional deprivation.").
In Zuniga II, the Colorado Court of Appeals concluded that appellate counsel was not ineffective in failing to raise a claim of prosecutorial misconduct:
(ECF No. 13-9, at 9-10).
The state appellate court's factual finding that the prosecution used Applicant's tattoos to establish identity and proof of his intent, is supported by the state court record.
Claim 5(b) is without merit and will be dismissed.
Applicant next contends that appellate counsel was ineffective for failing to challenge the trial court's refusal to give the unanimity instruction requested by defense counsel. (ECF No. 6, at 14).
During the jury instruction conference, defense counsel requested that, if a complicity instruction was going to be given, special interrogatories be issued requiring the jury to unanimously agree on the acts that are attributed to each defendant.
The Supreme Court "has never held jury unanimity to be a requisite of due process of law" in state criminal trials. Johnson v. Louisiana, 406 U.S. 356, 359 (1972); see also McDonald v. City of Chicago, Ill., 561 U.S. 742, 130 S.Ct. 3020, 3035 n.14 (2010) (noting Court's holding in Johnson that "although the Sixth Amendment right to trial by jury requires a unanimous jury verdict in federal criminal trials, it does not require a unanimous jury verdict in state criminal trials.").
Furthermore, in returning a general verdict, the jury is not required to agree upon a single means of commission. See Schad v. Arizona, 501 U.S. 624, 631 (1991). "[D]ifferent jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom line. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict." Id. at 631-32.
In Zuniga II, the Colorado Court of Appeals determined the following with respect to Applicant's claim:
(ECF No. 13-9, at 10-11).
Again, the state appellate court's determination that a unanimity instruction was not required in Applicant's case, under Colorado law, is binding on this federal habeas court. See Bradshaw, 546 U.S. at 76; Mullaney, 421 U.S. at 691. Further, Applicant was not entitled to a unanimity instruction as a matter of federal due process. Accordingly, appellate counsel's failure to raise the issue was not deficient performance, nor did it prejudice the Applicant.
Claim 5(c) lacks merit and will be dismissed.
In claim 5(d), Applicant asserts that appellate counsel should have challenged a sentence enhancer as unconstitutional. (ECF No. 6, at 14-15). Specifically, he contends that because the evidence at trial failed to establish that he used or threatened the use of a deadly weapon during the offenses, enhancement of his sentence as a crime of violence, pursuant to C.R.S. § 18-1.3-406 (2004), was unlawful.
In Zuniga II, the Colorado Court of Appeals analyzed this claim as follows:
(ECF No. 13-9, at 11-12).
At the time Applicant committed the offenses, a crime-of-violence sentencing enhancement applied to a list of enumerated crimes, including murder and second degree assault, as well as conspiracy and attempt crimes, where the defendant "used, or possessed and threatened the use of, a deadly weapon." See § 18-1.3-406(1)(a) and (2)(a)(I), C.R.S. (2004). For an enumerated crime to constitute a crime of violence, a special finding generally must be charged and found by the jury. See § 18-1.3-406(2)(a)(I)(A), C.R.S. (2004).
Crime-of-violence sentencing applies to offenses — i.e, crimes. Palmer v. People, 964 P.2d 524, 528 (Colo. 1998). Complicity is not a separate and distinct crime under the Colorado Criminal Code, but is rather a legal theory of liability. Id.; see also § 18-1-104. Id.
In Applicant's case, the information charged him with crimes of violence in counts 11 and 12,
Claim 5(d) lacks merit and will be dismissed.
Finally, Applicant maintains in claim 5(e) that his Fourth Amendment rights were violated under Georgia v. Randolph, 547 U.S. 103 (2006), which was decided while his case was pending on direct appeal. (ECF No. 6, at 15).
In Georgia v. Randolph, the Supreme Court held "that a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable to him on the basis of consent given to the police by another resident." 547 U.S. at 120.
In Zuniga II, the Colorado Court of Appeals rejected Applicant's claim that appellate counsel should have challenged the legality of his convictions on the basis of Randolph:
(ECF No. 13-9, at 12).
Applicant's unsupported assertion in the Amended Application that "[t]he police did not have a warrant to search the residence," (ECF No. 6, at 15), falls short of the clear and convincing evidence needed to rebut a state court's factual finding under 28 U.S.C. § 2254(e)(1), and is belied by the state court record. In an Affidavit in Support of Warrantless Arrest, filed in the state district court, the affiant states that he and his fellow officers from the Aurora Police Department found a loaded 9mm handgun during the execution of a search warrant at 16831 East Hawaii Drive, Unit A, Aurora, Colorado, on July 2, 2004.
Claim 5(e) will be dismissed.
Accordingly, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus 2254 (ECF No. 6), filed September 23, 2013, by Applicant, Genero Zuniga, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c);
4. Leave to proceed in forma pauperis on appeal is denied. Applicant may file a motion in the United States Court of Appeals for the Tenth Circuit.
