ORDER DISMISSING § 2254 APPLICATION

R. BROOKE JACKSON, District Judge.

Applicant, Mathew Guevara, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Docket No. 1). Respondents have filed an Answer (Docket No. 30) and Applicant was afforded an opportunity to file a Reply. The Court has considered the same, along with the state court record. For the reasons discussed below, the Application will be DENIED.

I. Background and State Court Proceedings

On June 10, 2010, Mr. Guevara was convicted by a jury of first-degree murder in Denver District Court Case No. 08CR6460. (ECF No. 1 at 1). He was sentenced to a prison term of life without parole. (Id.).

In Applicant's direct appeal proceeding, the Colorado Court of Appeals summarized the relevant facts as follows:

(Docket No. 9-3 at 2-3).

Mr. Guevara's conviction was affirmed on direct appeal in People v. Matthew Joseph Guevara, No. 10CA1553 (Colo. App. July 31, 2014) (unpublished decision). (Docket No. 9-3). The Colorado Supreme Court denied Applicant's petition for certiorari review on August 24, 2015. (Docket No. 1 at 2; No. 9-5). Mr. Guevara then filed a petition for certiorari review in the United States Supreme Court, which was denied on January 11, 2016. (Docket No. 1 at 7, 11).

Mr. Guevara initiated this action on November 23, 2016. He asserts four claims in the Application:

In the pre-answer response, Respondents conceded that the Application was timely and that Applicant exhausted his state court remedies for claim one. (Docket No. 9). Respondents argued, however, that Applicant failed to exhaust available state remedies for claims two, three and four because he did not seek certiorari review of the claims in the Colorado Supreme Court. (Id.). In a May 1, 2017 Order, Senior Judge Lewis T. Babcock rejected Respondents' assertion of the failure-to-exhaust defense for claims two through four, concluded that the claims were exhausted, and ordered that the Application be drawn in its entirety to a presiding judge. (Docket No. 18).

The Court reviews the merits of Applicant's claims below under the deferential AEDPA standard of review.

II. Legal Standards

A. 28 U.S.C. § 2254

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 federal 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, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted). In conducting this analysis, the court "must determine what arguments or theories supported or . . . could have supported[] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id.

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 Harrington, 562 U.S. at 88 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").

Harrington, 562 U.S. at 102.

"[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, 563 U.S. 170, 181 (2011).

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.'" MillerBEl v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-BEl v. Cockrell, 537 U.S. 322, 340 (2003)).

B. Pro Se Litigant

Applicant is proceeding pro se. The court, therefore, "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, 520B21 (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). A 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). Pro se status does not entitle a litigant to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

III. Analysis

A. Claim One

For his first claim, Mr. Guevara contends that the trial court's admission of his videotaped involuntary confession to the police violated due process. (Docket No. 1 at 4). Specifically, he argues that his inculpatory statements "were involuntary due to psychological coercion and promises that confession would lead to leniency." (Id.).

The Fifth Amendment to the United States Constitution guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. Further, due process prohibits conviction of a defendant based, "in whole or in part, upon an involuntary confession." Jackson v. Denno, 378 U.S. 368, 376 (1964).

"[C]oercive police activity is a necessary predicate to the finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Colorado v. Connelly, 479 U.S. 157, 167 (1986). The Constitution is not "concerned with moral and psychological pressure to confess emanating from sources other than official coercion." Oregon v. Elstad, 470 U.S. 298, 304-305 (1985). See also Culombe v. Connecticut, 367 U.S. 568, 576 (1961) (recognizing that a confession is not involuntary where it is "naturally born of remorse, or relief, or desperation, or calculation.").

In Bram v. United States, 168 U.S. 532 (1897), the Supreme Court held that, for a confession to be voluntary, it may not be "extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight." Id. at 542-43. However, the Supreme Court subsequently retreated from Bram's "but for" test by adopting a totality of the circumstances test. See Arizona v. Fulminante, 499 U.S. 279, 285-86 (1991) (recognizing that Bram does not state the standard for determining the voluntariness of a confession under current precedent; instead, voluntariness must be determined under the totality of the circumstances).

If the totality of the circumstances of the police interrogation demonstrate that the suspect's "will has been overborne and his capacity for self-determination critically impaired," the confession was not voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973). See also Dickerson v. United States, 530 U.S. 428 (2000) (reaffirming that the voluntariness of a confession is based on the totality of the circumstances of the police interrogation to determine "`whether a defendant's will was overborne," citing Schneckloth); Mincey v. Arizona, 437 U.S. 385, 401 (1978).

Factors relevant to the voluntariness analysis include the age, education and intelligence level of the defendant; whether the defendant was advised of his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food or sleep. Schneckloth, 412 U.S. at 226. Threats or violence, promises of leniency, and the exertion of any improper influence are factors to be considered in determining whether a defendant's confession was coerced under the totality of the circumstances analysis. See Fulminante, 499 U.S. at 286-87; see also Sharp v. Rollings, 793 F.3d 1216, 1229 (10th Cir. 2015) ("`Under Supreme Court and Tenth Circuit precedent, a promise of leniency is relevant to determining whether a confession was involuntary and depending on the totality of the circumstances, may render a confession coerced.'") (quoting Clanton v. Cooper, 129 F.3d 1147, 1159 (10th Cir. 1997)).

Without more, misrepresentations, ruses, and trickery by questioning authorities do not render an otherwise voluntary confession involuntary. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (interrogator's misrepresentation to suspect that accomplice had already confessed did not render suspect's confession coerced).

1. State court proceedings

On direct appeal, the Colorado Court of Appeals analyzed Mr. Guevara's claim under Mincey and Connelly, as well as state court appellate cases applying the totality of the circumstances test. (See Docket No. 9-3 at 4-7). The state appellate court rejected Applicant's claim on the following grounds:

(Docket No. 9-3 at 7-14).

2. Application of AEDPA standard of review

Although the ultimate question of whether Mr. Guevara's confession was voluntary is a legal question, subsidiary issues such as whether the police threatened the Applicant or made promises of leniency are questions of fact. See Unites States v. Lopez, 437 F.3d 1059, 1064 (10th Cir. 2006) ("The district court's determination that an officer's actions amounted to a promise of leniency is a factual finding."). See also Miller v. Fenton, 474 U.S. 104, 112 (1985).

The Court has carefully reviewed the DVD of Applicant's videotaped police interview. The state courts' factual findings that the detectives did not threaten or make any express promises to Applicant in exchange for his confession are supported by the record and Applicant has not pointed to any clear and convincing evidence to the contrary. However, as recognized by the Colorado Court of Appeals, the detectives did make statements to Mr. Guevara that can be construed reasonably as implied promises.

Putting aside momentarily the issue of the implied promises made to Mr. Guevara, the other circumstances of the interrogation support the Colorado Court of Appeals' determination that Applicant's confession was voluntary. At the beginning of the interview, Applicant was told that he was being charged with first degree murder and was advised of his Miranda rights. He indicated that he understood his rights and then waived them.4 Applicant was not hand-cuffed during the interview, which lasted approximately two hours. The detectives' tone was calm and conversational throughout the interview. Mr. Guevara was lucid and responsive and nothing occurred during the interview to suggest that his level of intelligence or education rendered his statements to the detectives involuntary, or that he suffered from a mental impairment that was exploited by the detectives. And, finally, the detectives did not injure Applicant physically or deny him physical necessities. As the Colorado Court of Appeals reasonably found, these factors weigh in favor of a finding of voluntariness.

Although the state appellate court also recognized that the detectives made some false representations of their knowledge of the evidence against Mr. Guevara, false statements about the evidence, without more, do not demonstrate that a confession was involuntary. See Frazier, 394 U.S. at 739. See also Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir.1998) (holding that defendant's inculpatory statements were admissible even though officer made "false statements about fingerprint evidence found" at the crime scene, because "such misrepresentations, without more, do not render an otherwise voluntary confession involuntary").

The critical question is whether the state court reasonably determined that the detective's implied promises to Mr. Guevara during the interview were not coercive, and, therefore did not render his confession involuntary.

a. Mr. Guevara's police interview

The DVD of Mr. Guevara's videotaped interview with Denver Police Department Detectives Martinez and Dennison reflects the following: For the first 38 minutes of the interview, Applicant denied that he was in the car with Mr. Candelaria and Mr. Baca (the victim), as Ms. Leroy drove her roommate to work. Applicant also denied that he drove up to Greeley with Mr. Candelaria, Ms. Leroy and Ms. Lopez to dispose of any crime evidence, or that he threw a knife out the window while they drove back from Greeley to Denver. During that period of the interview, Detective Martinez informed Mr. Guevara that his version of events had been contradicted by the statements of other witnesses, that he did not believe the Applicant and that Applicant needed to be honest with the detectives. Approximately 38 minutes into the interview Detective Dennison said to Applicant:

Mr. Guevara subsequently admitted that he was in the vehicle with Mr. Candelaria, Mr. Baca, and Ms. Leroy when Leroy drove her roommate to work. He further admitted that they dropped Mr. Baca at his house and left him on the ground by the side of the fence outside of his apartment building, but that Candelaria did not tell him what happened to Mr. Baca. Applicant further admitted that he drove up to Greeley with the group later that day, but he did not know why they went up there, except to visit a friend of Mr. Candelaria.

About 43 minutes into the interrogation, the detectives asked Mr. Guevara why he had initially lied to them about whether he had been in the car. Mr. Guevara responded that he "was really nervous `cause you said that I had a warrant for a homicide or something like that." Applicant then stated:

The detective then told Mr. Guevara that he had not owned up to anything except being a passenger in the car and that he was not telling them the whole truth. Detective Martinez insisted that they knew Applicant was guilty, that he needed to explain why Baca was stabbed, and that Applicant was not helping himself by lying and not showing any remorse.6

Approximately 56 minutes into the interview, Detective Dennison told Mr. Guevara: "[Y]ou gotta' be under a lot of stress right now trying to think, `How do I get out of this?" The easiest way is just to tell us exactly what happened and why it happened.'"7 Applicant continued to insist that he had not hurt Mr. Baca, that he did not know Baca had been stabbed, and that Baca was breathing when he left him outside of his apartment building on the ground. The detective then made the following statements to Mr. Guevara:

Detective Dennison again tells Mr. Guevara that they were going to be able to prove that he stabbed Mr. Baca "scientifically and with testimony and with other types of evidence."11 Applicant repeated that he did not hurt Mr. Baca.12

Detective Dennison then told Applicant that they could see he was just about ready to tell them what happened. The detective stated:

After this last statement by the detective, Mr. Guevara admitted that he stabbed Mr. Baca twice in the stomach, but didn't know that Mr. Baca had been "butchered."15 He stated that Baca, who was a big man, was leaning on him in the backseat of the car and had placed his right hand around Applicant's neck, at which point, Applicant stabbed him because he thought Baca was going to choke him.16 Mr. Guevara also told the police that Mr. Candaleria had stabbed the victim "quite a bit" and that he heard Mr. Baca say, "please stop," to Candelaria several times.17

At the end of the interview, Mr. Guevara stated:

The detectives did not respond to Applicant's inquiry, but instead asked him if he needed a drink of water.19 The interview then concluded.

b. consideration of relevant federal case law

The Colorado Court of Appeals applied the clearly established totality of the circumstances test in determining that Mr. Guevara's confession was not involuntary. Therefore, the state appellate court's decision could not have been contrary to Supreme Court law under 28 U.S.C. § 2254(d)(1). Instead, the Court's inquiry on federal habeas review is whether the Colorado Court of Appeals' determination was a reasonable application of the totality of the circumstances test under federal law.

(1) Supreme Court case law

In Fulminante, the Supreme Court held that a confession was coerced where a government informant threatened the defendant with violence and promised him protection from inmate violence in order to induce the defendant's inculpatory statements. 499 U.S. at 286-87. However, no Supreme Court case has held, under the totality of the circumstances test, that a police officer's implied promises of leniency constituted coercive police conduct that rendered a confession involuntary, where the circumstances of the police interrogation otherwise indicated that the defendant's statements were made of his own free will. Accordingly, the Court looks to applicable Tenth Circuit law for guidance.

(2) Tenth Circuit case law

The Tenth Circuit's decisions in Sharp, Clanton, and Lopez provide a starting point for the Court's analysis.

In Sharp v. Rollings, the court addressed the habeas petitioner's claim that her confession to the police was involuntary, and, therefore erroneously admitted against her at trial in violation of her Fifth and Fourteenth Amendment rights. 793 F.3d at 1219. The relevant facts were as follows: During a police interrogation, the detective asked the petitioner, who was then homeless, to explain what had happened to the murder victim. The petitioner responded by describing the attack on the victim by two other homeless individuals and stating that she did not participate in the attack, but instead tried to talk the others out of killing the victim. Id. at 1230. The detective then asked the petitioner if she helped burn the victim's belongings and she initially denied doing so. Id. However, after the detective told petitioner that she was in a "serious situation," petitioner confessed to helping burn the victim's belongings. Id. The petitioner immediately asked the detective if she was going to jail. Id. The detective responded: "No, no, no, no, no, no, no, no [no, no]. You are a witness to this thing so long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared— . . . Just don't tell me no if I ask you something." Id. Ms. Sharp then proceeded to make other incriminating statements, was arrested at the conclusion of the interview, and was ultimately convicted of felony murder. Id. at 1235-39.

The Kansas Supreme Court affirmed the trial court's decision not to suppress the petitioner's inculpatory statements, concluding that the statements were made voluntarily. Id. at 1223, 1225. On federal habeas review, the federal district court deferred to the state supreme court's factual findings, determined that the state court reasonably applied clearly established federal law, and denied the petition. Id. at 1226.

On appeal, the Tenth Circuit first concluded that, under the circumstances, the state supreme court's finding that the detective had not promised the petitioner leniency was an unreasonable determination of fact under 28 U.S.C. § 2254(d)(2), and, therefore, was not entitled to deference. Id. at 1230. Instead, the Tenth Circuit found that the detective, after receiving an incriminating statement from the petitioner, "immediately and unequivocally reassured [the petitioner] she was not going to jail. In short, he promised she would not go to jail despite her confession." Id. The Circuit Court further found that that the detective's subsequent comments had not "altered his clear promise of leniency" or "diluted his insistence that [the petitioner] would not go to jail despite her confession. His assurance was a promise that [the petitioner] would be treated leniently." Id. at 1231.

Upon determining that AEDPA deference did not apply under § 2254(d)(2), the Sharp court engaged in a de novo review of the detective's interview with the petitioner to determine whether it was involuntary. Id. The Tenth Circuit agreed that several uncontested facts found by the Kansas Supreme Court relevant to the voluntariness analysis weighed in favor of voluntariness. Id. However, the court found that the detective's assurance petitioner would not go to jail for her role in the crime "was a critical and troubling moment in the interview." Id. After the petitioner admitted to evidence destruction in a murder investigation, she immediately and anxiously asked if she was going to jail. Id. at 1234. The detective "flatly rejected [petitioner's] concern about going to jail without equivocation. He did not say the charging decision was in the prosecutor's hands [or] express uncertainty about her fate." Id. The Tenth Circuit found: "Detective Wheeler's promise she would not go to jail induced her confessional statements because he made clear there would be no cost of disclosure. He gave Ms. Sharp a-get-out-of-jail free card, and she obliged by giving him more incriminating details." Id. The court concluded that, based on the totality of the circumstances, the petitioner's will was overborne, and her subsequent incriminating statements involuntary, once the detective "promised her she would not go to jail after she admitted to participating in the crime." Id. at 1235.

In Clanton, the Tenth Circuit concluded that a police officer was not entitled to qualified immunity in a § 1983 action because the officer should have known that his apparent promise of leniency—i.e, telling the suspect that "he would get a twenty-five year sentence if he didn't confess, but would `get off lightly' if he confessed to a pattern of events suggested by the officer—together with the officer's false statements to the suspect about the evidence against him, "would make it more likely that the confession would be considered involuntary." 129 F.3d at 1158.

In Lopez, federal agents used the terms "mistake," "murder," "6," and "60" during a police interrogation in order to promise the defendant that he would spend fifty-four fewer years in prison if he would confess to killing the victim by mistake. The Tenth Circuit found that the agent's express promise of leniency, together with the agents' subsequent reinforcement of that promise by telling the defendant about other suspects who had received lenient sentences after confessing to killing by mistake, as well as the agents' misrepresentation and exaggeration of the evidence they had against the defendant, were sufficient circumstances to overbear the defendant's will and make his confession involuntary. 437 F.3d at 1064-65.

The present case is factually distinguishable from Sharp, Clanton and Lopez. In those cases, the Tenth Circuit found that the confessions were induced by promises that were more express and specific than the detectives' implied promises to Mr. Guevara that he may have a future if he told them the truth about what happened to Mr. Baca.

In United States v. Varela, No. 13-8067, 576 F. App'x 771, 778-80 (10th Cir. Aug. 13, 2014), the Tenth Circuit held in an unpublished opinion that a police officer's "vague and generic" statement during interrogation that "I think we can, we can do something. I'm just saying I can't say—I can't take those charges away [pause] right now" did not render the defendant's confession involuntary where officers were polite and friendly during the 2½ hour interview; the defendant was an adult who spoke and understood English well, appeared intelligent, had prior experience with the criminal justice system, and had waived his Miranda rights after being advised. See also Thiang v. Lewis, No. 12-16260, 548 F. App'x 407, 408 (9th Cir. Dec. 6, 2013) (unpublished) (concluding that detective's statement to the habeas petitioner during police interrogation that "I'd rather use you as a witness than . . . a suspect" was not coercive conduct that induced the defendant's subsequent confession under the totality of the circumstances; the state appellate court's decision was a reasonable application of the law under § 2254(d)(1)).

And, finally, it is well established in the Tenth Circuit that a law enforcement officer's general statements to a defendant that his cooperation may have benefits, without any other indications of coercion, does not compel a finding that a defendant's statement is involuntary. See, e.g., United States v. Nguyen, 155 F.3d 1219 (10th Cir. 1998); United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir.1997).

The interview, in toto, reflects that the detectives played hard on Mr. Guevara's guilt in an effort to obtain a confession. For the first half of the interview, Mr. Guevara insisted that he had not hurt Mr. Baca, but the detectives were equally adamant that Applicant was lying and that they had the evidence to prove it. Although the detectives did not make express promises of leniency to the Applicant, they did make six statements to him suggesting that he could still have a future outside of prison if he confessed. After Detective Dennison told Mr. Guevara that "he was a young man, you can get past this. . . and have kids, you're nineteen years old—," Applicant admitted that he had been in the vehicle with Mr. Candelaria and Mr. Baca, had participated in dragging Mr. Baca to the side of his apartment building and leaving him outside, and had driven up to Greeley with the others later that day. However, Mr. Guevara repeated that he had not hurt Mr. Baca. After Detective Dennison made five more statements to Applicant suggesting that he may have a future if he told them the truth about what happened, Mr. Guevara confessed to stabbing Mr. Baca twice. Mr. Guevara exhibited considerable remorse after his confession, breaking down in tears, and stating several times that Mr. Baca was a good person who did not deserve to die. Although Applicant asked the detectives how much prison time he would have to serve and assumed it would be more than five to six years, the detectives did not respond to that inquiry. Mr. Guevara also acknowledged after he confessed to stabbing Mr. Baca that he "was going to be locked up for a while"20and had just "thrown his . . . life away."21

Under the totality of the circumstances of the police interview, it is not clear whether Mr. Guevara confessed because he was overcome by his own guilt and remorse and knew that the officers did not believe his story, or whether his will was overborne and his capacity for self-determination was critically impaired by the detectives' implied promises to him that he may have a future if he told them the truth. Although it is a close question, and this Court might rule differently under a de novo standard of review, the Court is constrained to find, under the deferential standard of review in § 2254(d)(1), that the Colorado Court of Appeals' conclusion that Applicant's confession was voluntary was a reasonable application of the totality of the circumstances test. In other words, this Court concludes that the state appellate court's determination was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington, 562 U.S. at 103. See also White v. Woodall, 124 S.Ct. 1697, 1706-07 (2014) (stating that "relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no "fairminded disagreement" on the question," citing Harrington); Woods v. Donald, 575 U.S. ___, 135 S.Ct. 1372, 1376 (2015) ("When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong.") (per curiam ).

Applicant is not entitled to federal habeas relief for his first claim.

B. Claim Two

Mr. Guevara asserts in his second claim that the evidence presented at trial was insufficient to support his conviction for first-degree murder. (Docket No. 1 at 5).

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, 133 F.3d at 1312. 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. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted). See also Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (in reviewing the sufficiency of the evidence, the federal habeas 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.'") (quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).

"[F]ederal courts must look to state law for `the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Johnson, 132 S.Ct. at 2064.

"Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Id. at 2062. First, the state court defers to the jury's resolution of any disputed facts. And second, the federal court defers to the state court's resolution of the Jackson claim, which must be upheld provided simply that it was not "objectively unreasonable." Id.

1. State court proceedings

On direct appeal, the Colorado Court of Appeals resolved Applicant's challenge to the sufficiency of the evidence as follows:

(Docket No. 1 at 16-19).

2. Application of AEDPA standard of review

Because the Colorado Court of Appeals applied a state law standard similar to the Jackson standard, this Court determines only whether the state court's determination was reasonable.

The state appellate court relied on the following evidence at Mr. Guevara's trial in support of its determination that the evidence was sufficient to support Applicant's conviction for first degree murder:

The Court finds that the Colorado Court of Appeals' conclusion that the above evidence was sufficient to meet the elements of causation and intent under § 18-3-102(1)(a), C.R.S., and was therefore sufficient to convict Mr. Guevara of first degree murder as a principal, comported with the Jackson standard.

The Court further finds that the Colorado Court of Appeals' conclusion that the evidence was sufficient to hold Applicant liable as a complicitor was also reasonable under Jackson. In Colorado, a person is legally accountable for the actions of another if, "with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in . . . committing the offense." § 18-1-603, C.R.S. There is a dual mental state requirement of the complicitor that must be proven before he or she can be legally accountable for the offense of another. "First, the complicitor must have the culpable mental state required for the underlying crime committed by the principal. Second, the complicitor must intend that his own conduct promote or facilitate the commission of the crime committed by the principal." Bogdanov v. People, 941 P.2d 247, 251 (Colo.), amended, 955 P.2d 997 (Colo. 1997), disapproved of on other grounds by Griego v. People, 19 P.3d 1 (Colo. 2001). As recognized by the state appellate court, even if Mr. Candelaria stabbed the victim several times, the evidence demonstrated that Applicant stabbed the victim at least twice in the stomach and assisted Candelaria in carrying and leaving the victim in an isolated place in freezing temperatures.

Applicant is not entitled to federal habeas relief for his second claim.

C. Claim Three

In claim three, Mr. Guevara maintains that he was denied his constitutional right to confront a key prosecution witness at trial, Kristina Leroy, when the court limited his cross-examination. (Docket No. 1 at 5).

1. State court proceedings

On direct appeal, Applicant contended that the trial court erred in limiting his cross examination of the witness on hearsay grounds and as a violation of his Sixth Amendment confrontation rights. Because Applicant failed to raise a confrontation clause objection at trial, the Colorado Court of Appeals reviewed the claim for plain error. (Docket No. 9-3 at 19-20). The state appellate court made the following determination:

(Docket No. 9-3 at 21-24).

2. Procedural defense

Respondents argue in their Answer that Mr. Guevara defaulted claim three in the state courts pursuant to a state procedural rule, thereby precluding federal review on the merits. (Docket No. 30 at 25-31). However, in the pre-answer response, Respondents did not raise a procedural default defense as to claim three. During preliminary review, Magistrate Judge Gordon P. Gallagher and Senior Judge Lewis T. Babcock sua sponte recognized and addressed the potential applicability of the procedural default doctrine to Applicant's third claim. (Docket No. 13, Order to Show Cause; Docket No. 18, Order Drawing Case). However, Judge Babcock ultimately concluded in the Order Drawing Case that claim three was not procedurally barred based on the state appellate court's application of both a plain error and harmless error analysis to the claim. (Docket No. 18 at 9). See Douglas v. Workman, 560 F.3d 1156, 1178 (10th Cir. 2009) (if it is not clear whether the substance of the state court's plain-error review was merits or non-merits based, the Court must assume the state's review was merits based).

Respondents essentially ask this Court to exercise its discretion to reconsider Judge Babcock's interlocutory order and find that claim three is procedurally barred. See, e.g., Price v. Philpot, 420 F.3d 1158, 1167 n. 9 (10th Cir. 2005) ("[E]very order short of a final decree is subject to reopening at the discretion of the district judge."). However, even if Respondents are correct that claim three is procedurally barred, a federal habeas court may dismiss a claim on the merits without resolving the procedural defense. See Snow v. Sirmons, 474 F.3d 693, 717 (10th Cir. 2007) ("We can avoid deciding procedural bar questions where claims can readily be dismissed on the merits"); see also Cannon v. Mullin, 383 F.3d 1152, 1159 (10th Cir. 2003) ("When questions of procedural bar are problematic, however, and the substantive claim can be disposed of readily, a federal court may exercise its discretion to bypass the procedural issues and reject a habeas claim on the merits."). Because claim three is subject to dismissal on the merits for the reasons discussed below, the Court will not reconsider whether the claim is subject to a procedural bar.

3. Applicable federal law

Where a state court assumes a constitutional violation in order to address whether the defendant was actually harmed by the violation, the state court's decision is a merits-based determination entitled to AEDPA deference. See Davis v. Ayala, 135 S.Ct. 2187, 2198 (2015); Littlejohn v. Trammell, 704 F.3d 817, 850 n. 17 (10th Cir. 2013). On direct review, a federal constitutional error in conjunction with a state criminal conviction requires reversal if "there is a reasonable possibility that the [error] might have contributed to the conviction." Chapman v. California, 386 U.S. 18, 24 (1987) (internal citation and quotation marks omitted). However, on federal habeas review, if the state appellate court found an alleged federal constitutional error harmless under the federal standard in Chapman, "a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable." Davis, 135 S.Ct. at 2199 (quoting Fry v. Pliler, 551 U.S. 112, 119 (1998) (per curiam)).

The Court considers the following factors in determining whether a Confrontation Clause error was harmless: (1) the importance of the witness's testimony in the prosecution's case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; and (4) the extent of cross-examination permitted, and (5) the overall strength of the prosecution's case. See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). See also Littlejohn, 704 F.3d at 845 (citing Van Arsdall factors relevant to harmless error analysis).

Further, a habeas petitioner is "not entitled to habeas relief based on trial error unless [the petitioner] can establish that it resulted in `actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). That is, the constitutional error at trial must have "`had substantial and injurious effect or influence in determining the jury's verdict.'" Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Stated otherwise:

Jones v. Gibson, 206 F.3d 946, 957 (10th Cir. 2000) (citations omitted) (quoting Van Arsdall, 475 U.S. at 684, and Brecht, 507 U.S. at 623, 637-38). See also Littlejohn, 704 F.3d at 843 (citing Jones).

Therefore, to succeed on his third claim, Mr. Guevara must show that: (1) no fair-minded jurist could agree with the Colorado Court of Appeals' determination that the trial court's preclusion of the questions on cross examination did not constitute harmless error; and, (2) he was actually prejudiced by the trial court's exclusion of the specific questions on cross examination. Davis, 135 S.Ct. at 2199.

4. Application of AEDPA standard of review

The Court first considers whether the Colorado Court of Appeals' harmless error analysis was consistent with the Van Arsdall factors.

Under the first Van Arsdall factor, Ms. Leroy was an important prosecution witness. She testified that she was present in the vehicle with Mr. Guevara and Mr. Candelaria when the stabbing(s) occurred.27 Although Leroy was driving the vehicle and did not witness the stabbing(s) in the backseat, she watched both men drag the victim's body to the side of the victim's apartment building and leave him bleeding on the ground in sub-freezing temperatures.28 Ms. Leroy also testified on direct exam that Applicant confessed to her later that day that he was the one who had stabbed the victim and that Candelaria was not responsible.29

Under the third Van Arsdall factor, Leroy's testimony was corroborated on material points by the testimony of Shana Lopez. Ms. Leroy and Ms. Lopez both testified about the fight between Candelaria and Leroy, which triggered the statement "Don't you hit her," and resulted in Candelaria punching a hole in the wall.30 Ms. Leroy and Ms. Lopez also testified that when the victim and Applicant came upstairs to see what was going on, Candelaria and the victim got into a physical fight, which resulted in Candelaria punching the victim, causing him to fall to the floor.31 In addition, Leroy's testimony was consistent with the testimony of Lopez as to the actions of Applicant and Candelaria in attempting to dispose of the evidence after the crime.32

Under the second Van Arsdall factor, testimony by Ms. Leroy that Ms. Lopez yelled, "Don't you hit her"33 during an argument between Leroy and Candelaria the night before the stabbing would have been cumulative to other testimony concerning Candelaria's anger and violence, as discussed in the preceding paragraph. In addition, testimony by Leroy that Candelaria called her after he was arrested to tell her that "he loved her and still wanted to marry her," and that he promised Leroy "that nothing would happen to her and [her seven-year-old daughter]"34 would have been cumulative to other evidence of Leroy's potential bias. Ms. Leroy testified on direct exam that she was dating Candelaria and that the two of them had discussed marriage.35

Under the fourth Van Arsdall factor, Mr. Guevara was allowed to cross exam Ms. Leroy about her bias in favor of Mr. Candelaria and her fear of him.36 Ms. Leroy testified on cross exam that she was "infatuated" and "in love" with Candelaria and would "often do what he wanted [her] to do."37 She also testified that when the victim came upstairs during the fight between her and Candelaria the night before the victim was stabbed, Candelaria told the victim to "rape" Leroy if she attempted to make a telephone call.38

Finally, the prosecution's case against Mr. Guevara was fairly strong as it included his own admissions, which were consistent with the forensic evidence.39

A review of the Van Arsdall factors shows that only the first factor weighs in favor of Applicant. The Court thus finds that the state appellate court's harmless error determination was a reasonable application of Van Arsdall and Chapman. The Court further finds under Brecht that the state trial court's restrictions on cross examination of Ms. Leroy did not have a substantial and injurious effect on the jury's verdict, given the strength of the prosecution's case.

Applicant is not entitled to federal habeas relief for his third claim.

D. Claim Four

For his fourth and final claim, Mr. Guevara contends that the jury instruction on complicity violated his due process rights. (Docket No. 1 at 6).

The Due Process Clause requires the prosecution to prove every element of a charged offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). To demonstrate a constitutional error from a jury instruction in a state criminal trial, a habeas petitioner must show (1) an "ambiguity, inconsistency, or deficiency" in the instruction, and, (2) that there was "`a reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotation marks and citations omitted). See also Victor v. Nebraska, 511 U.S. 1, 6 (1994) (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."). In making this determination, the jury instruction "`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 v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). A "slight possibility" that the jury misapplied the jury instruction is not enough. See Weeks v. Angelone, 528 U.S. 225, 236 (2000). Instead, the pertinent question "is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).

1. State court proceedings

The trial court gave the jurors the following instruction on complicity liability:

In Mr. Guevara's direct appeal proceeding, the Colorado Court of Appeals first determined that the complicity instruction conformed to Colorado law:

(Docket No. 9-3 at 26-28).

The state appellate court then addressed Applicant's challenge to the "all of part of" language in the instruction:

(Id. at 28-29).

2. Application of AEDPA standard of review

The Colorado Court of Appeals, on plain error review, denied Mr. Guevara relief for his federal due process claim by deciding there was no federal law error at all. Therefore, the deferential AEDPA standard of review applies. See Eizember v. Trammell, 803 F.3d 1129, 1138 n.1 (10th Cir. 2015) (citing Douglas, 560 F.3d at 1177-78).

The state appellate court's determinations that the trial court's jury instructions "accurately informed the jury of the governing law," "adequately directed the jury to determine whether Guevara had the requisite mental state for first degree murder," and, that the "all or part of" language in a complicity theory jury instruction applies in cases where "one or more persons, possibly including the defendant, together committed the essential elements of the underlying crime," are determinations of state law that are binding on this federal habeas court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that "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.") Consequently, Applicant cannot show that the instruction contained "some `ambiguity, inconsistency, or deficiency,'" as required by Supreme Court law. See Waddington, 555 U.S. at 190-91.

Moreover, the Colorado Court of Appeals' determination that the evidence at trial warranted the "all or part of" language in the complicity instruction was reasonable in light of the evidence presented in the state court proceeding. As discussed in Section III.B.2, supra, the state appellate court concluded, consistent with the Jackson standard, that the evidence was sufficient to support the jury's verdict of guilt under a complicity theory. Further, the jury was instructed on the elements of first degree murder under Colorado law, as well as the definitions of after deliberation, intent and cause.41 There is no reasonable likelihood that the jury applied the complicity instruction in a way that relieved the State of its burden of proving every element of the crime of first degree murder beyond a reasonable doubt.

Applicant is not entitled to federal habeas relief for his fourth claim.

IV. Orders

For the reasons discussed above, it is

ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1), filed by Applicant, Mathew Guevara, on November 23, 2016, is DENIED. The Application is DISMISSED WITH PREJUDICE. It is

FURTHER ORDERED that no certificate of appealability shall issue because Applicant has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.