FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   August 6, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 JOHN E. LOPEZ,

          Petitioner-Appellant,
 v.                                                      No. 10-1032
 CARL ZENON; JOHN W. SUTHERS,                 (D.C. No. 04-cv-01072-ZLW-BNB)
 the Attorney General of the State of                     (D. Colo.)
 Colorado,

          Respondents-Appellees.



                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.



      Petitioner John E. Lopez, a Colorado state prisoner convicted of first

degree murder and robbery and sentenced to life imprisonment without parole,

appeals the district court’s denial of his 28 U.S.C. § 2254 petition for federal

habeas relief. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                          I

      The background facts were succinctly summarized by the Colorado Court


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
of Appeals (CCA) in Lopez’s direct appeal:

             In March 1993, [Lopez’s] stepfather was beaten and stabbed to
      death in the bedroom of his home. A safe containing an estimated
      $170,000 in cash and jewelry was taken from the home during the
      attack. No other valuables were removed.
             [Lopez] and a friend of his were immediate suspects and [Lopez]
      was first questioned about the crime in March 1993. Although police
      lacked sufficient evidence to make an arrest, [Lopez’s] mother remained
      in contact with the investigating officer, urging him to solve the
      murder. The officer told her that [Lopez] and his friend were involved
      in the crime, but that the police lacked evidence to arrest them.
             In a bizarre series of events, [Lopez’s] mother became entangled
      in the case against [him]. In July 1993, she allegedly assaulted him in
      the parking lot of a grocery store. Two days later she went to see him,
      held a loaded gun to his head, and threatened to kill him, herself, and
      his younger sister unless he went to the police to talk to the
      investigating officer. That visit occurred on a Friday and she gave him
      until Sunday to agree to her ultimatum.
             The following Monday [Lopez] appeared at the police station.
      He was interrogated there about the murder that day and he also left and
      returned every day during the next four days for further interrogation.
      Not only was [Lopez’s] mother present at the interrogations, but she
      actively assisted in questioning [him].

People v. Lopez, 

, 480 (Colo. App. 1997). The interviews lasted

approximately thirty hours over five days, from July 12 through July 16. Lopez

was repeatedly advised of his constitutional rights throughout the interviews, and

he signed waiver of rights forms. On the second day, the investigating officer

showed Lopez a graphic photograph of his deceased stepfather, and Lopez became

visibly upset. On the third day, he changed his statement, and on the fourth and

fifth days of the interviews, he made statements implicating himself in the theft

and his stepfather’s murder. On July 21, 1993, Lopez was charged with one count


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of first degree felony murder, two counts of second degree burglary, two counts

of theft, and one count of robbery.

      The state trial court denied Lopez’s motion to suppress the incriminating

statements. In so doing, that court found that Lopez’s mother was not acting as a

government agent, and that his statements to the police were voluntary. Lopez

was convicted on all counts, except one count of burglary and one count of theft.

      Lopez appealed his convictions, arguing in part that his statements during

the police interview were involuntary and should not have been admitted at trial.

The CCA agreed with the trial court that Lopez’s mother was not a government

agent, but nonetheless considered her conduct during the interrogation as

“relevant to the totality of the circumstances surrounding [his] statements” in

determining the voluntariness of those statements. 

Although the CCA

concluded his statements were voluntary, it nonetheless reversed the murder,

theft, burglary, and robbery convictions because the trial court erred in excluding

expert testimony, and it remanded for a new trial. Judge Jones, writing

separately, would have “conclude[d] that [Lopez’s] mother’s active participation

in the interrogations transformed her into an agent of the state,” and would have

further held “that the inculpatory statements made by [Lopez] over the many

hours of interrogation were involuntary . . . .” 

(Jones, J., concurring).

The Colorado Supreme Court denied certiorari.

      Upon remand, Lopez pleaded guilty to one count of second degree burglary

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and one count of theft, and he was retried on the remaining charges of first degree

murder and robbery. At trial, his statements were the primary evidence against

him. He was convicted of the remaining charges and sentenced to life

imprisonment without parole. This conviction was affirmed by the CCA, and the

Colorado Supreme Court denied certiorari on April 23, 2001.

      On October 31, 2001, Lopez sought post-conviction relief in state court.

The state district court denied post-conviction relief, and the CCA affirmed the

decision. The Colorado Supreme Court denied certiorari on January 20, 2004.

      On May 14, 2004, Lopez filed a petition for federal habeas corpus relief

under 28 U.S.C. § 2254. The district court granted Lopez’s request for

appointment of counsel, and counsel filed an amended petition. In the amended

petition, Lopez contended that his statements were involuntary and used against

him at trial in violation of the Fifth and Fourteenth Amendments. 1

      The magistrate judge recommended that Lopez’s petition be denied. The

district court subsequently denied Lopez’s request for an evidentiary hearing,

adopted the magistrate judge’s recommendation, and denied Lopez’s petition.

First, the district court agreed with the state court that Lopez’s mother was not

acting as an agent of the government during the interrogation. The district court



      1
       The amended petition also presented a claim that Lopez was actually
innocent. The magistrate judge noted that this claim did not appear to be
exhausted, and Lopez was permitted to withdraw this claim.

                                         4
further concluded that even assuming that she was a government agent, her

conduct during the interrogation was not unconstitutional, reasoning that “there

is no evidence that [Lopez’s] will was overborne by [his mother’s] behavior or

that his statements were the product of her pointed and heated discussions toward

[sic] him.” ROA, Vol. III at 397 (quotations omitted). Second, the district court

concluded that the state court’s decision regarding the voluntariness of Lopez’s

statements was not an unreasonable application of Supreme Court precedent, or

an unreasonable determination of the facts. The district court further reasoned

that no police conduct coerced Lopez, and noted that even after he was shown the

“grisly photograph” of his stepfather, he “returned to his previous cool, calm, and

collected demeanor within a short period of time.” 

Moreover, his

“story did not change the remainder of that day of questioning . . . . Whatever

reaction the photos elicited, [his] will was not overcome in the immediate

aftermath of the viewing.” 

a timely notice of appeal, request for a certificate of

appealability (“COA”), and opening brief. On June 15, 2010, we granted a COA

and directed respondents to file a response brief, which we have now received.

Lopez has also filed a reply.

                                         II

      In an appeal from the denial of habeas relief under 28 U.S.C. § 2254, our

scope of review is governed by the Antiterrorism and Effective Death Penalty Act

                                          5
of 1996 (AEDPA). Where, as here, the state court addressed a petitioner’s claims

on the merits, habeas relief may be granted only if the CCA’s decision “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding,” 

      We may grant habeas relief “only when we are convinced the state court’s

application of federal law goes beyond being erroneous and instead becomes

objectively unreasonable.” Snow v. Sirmons, 

, 696 (10th Cir. 2007).

An objectively unreasonable application of federal law is more than a merely

incorrect application of clearly established federal law. 

v.

Taylor, 

, 411 (2000)). As we have previously recognized, “objective

unreasonableness is somewhere between clearly erroneous and unreasonable to all

reasonable jurists.” Maynard v. Boone, 

, 670 (10th Cir. 2006)

(emphasis omitted). “Thus, only the most serious misapplications of Supreme

Court precedent will be a basis for relief under § 2254.” 

      We begin by examining the clearly established federal law, as determined

by the Supreme Court, which is relevant to his claim. Under AEDPA, we may not

“extract clearly established law from the general legal principles developed in

factually distinct contexts.” House v. Hatch, 

, 1016 n.5 (10th Cir.

2008). On the other hand, an unreasonable application of federal law may occur

                                          6
if a state court “unreasonably refuses to extend [a legal] principle to a new

context where it should apply.” 

.

      In his amended petition for habeas relief, Lopez argued that his statements

were involuntary, and therefore, used against him at trial in violation of his due

process rights pursuant to the Fifth and Fourteenth Amendments. Mincey v.

Arizona, 

, 398 (1978). In determining whether a statement was

involuntary, we look to the totality of the circumstances. See Schneckloth v.

Bustamonte, 

, 226 (1973). Moreover, police conduct must be

“causally related to the confession,” in order to find a denial of due process of

law. Colorado v. Connelly, 

, 164 (1986).

      Lopez further contended that under Coolidge v. New Hampshire, 

(1971), his mother acted as an agent of the police during the interrogation,

and that she improperly pressured Lopez into making the incriminating

statements. Respondents argue that Coolidge does not constitute clearly

established law applicable to this case. In particular, they argue that Coolidge’s

test for whether a private actor must be regarded as a government agent was

decided “in the context of the Fourth Amendment — not the Fifth Amendment . .

. .” Appellees’ Br. at 13. However, we need not decide whether Coolidge is

clearly established federal law for this case. 2 Even assuming, arguendo, that


      2
          Indeed, we note that the CCA applied the Coolidge test to determine
                                                                       (continued...)

                                           7
Lopez’s mother could be considered a government agent during the interrogation,

Lopez would not be entitled to habeas relief. 3

      The CCA affirmed the trial court’s conclusion that “although coercive

techniques were used at various points in the interrogation, [Lopez’s] final

statements regarding his role in the offenses nevertheless were voluntary and did

not result from coercive police tactics.” 

. Lopez argues

that the police and his mother pressured him during the first two days of the

interrogation. For example, the investigating officer began the first interview by

noting that his mother had been “goin’ through some hell. And she’s gettin’ to

the point where she’s homicidal/suicidal.” ROA, Vol. II, Tr. at 1. Additionally,

his mother was very active in asking Lopez questions during the first two days of

the interview. Lopez also contends that the police coerced him to confess on the

second day of the interrogation by showing him a photograph of his deceased

stepfather. We are not persuaded that the CCA unreasonably applied federal law

in concluding that Lopez’s statements were uncoerced.

      2
        (...continued)
“whether a private citizen has acted as an agent of the police for purposes of
criminal investigation . . . .” 

. Although the CCA
concluded that Lopez’s mother was not a government agent, that court
nevertheless “conclude[d] that the trial court did not err in finding her conduct
relevant to the totality of the circumstances surrounding [Lopez’s] statements . . .
.” 

      3
        Accordingly, we do not address Lopez’s argument that the district court
abused its discretion in denying his request for an evidentiary hearing to explore
the interactions between the investigating officer and Lopez’s mother.

                                          8
      Here, the allegedly coercive conduct occurred during the first two days of

the interviews. The record indicates that Lopez’s mother was active in the

interview during the first few days of the interrogation, on July 12 and 13.

Additionally, Lopez was shown the photograph of his deceased stepfather on the

second day of the interview, July 13. However, he did not make an incriminating

statement until the next morning, on July 14. See Newland v. Hall, 

, 1190 (11th Cir. 2008) (over 24 hours passed between allegedly coercive

police statements and confession). On July 14, after again voluntarily returning

to the police station, and again being advised of his constitutional rights under

Miranda, he waived those rights and spoke freely, in great detail and without

questioning or even comment from his mother. Moreover, after leaving the police

station at the end of each day of interviews, he stayed at his grandmother’s

house. 4 In addition to considerable breaks between the coercive conduct and his

eventual statement, the videotapes of the interrogation show that he remained

calm and collected throughout most of the interviews, including when he made his

statements on July 14. Even after he was shown the photograph of his stepfather,

he was at first visibly upset, but then he “returned to his previous cool, calm, and

collected demeanor within a short period of time,” ROA, Vol. III at 398. Indeed,


      4
        Lopez asserts that his mother “never ceased her manipulative tactics in the
evening.” Appellant’s Reply Br. at 7. However, Lopez does not offer any
evidence or support for this assertion, nor does he even explain what these
allegedly manipulative tactics were.

                                          9
until July 14 he maintained his original story that he had no memory of what

happened. See 

(noting that petitioner maintained his

“no-memory claim” for the remainder of the interrogation with the officer who

made allegedly coercive statements). Under these circumstances, the CCA

reasonably concluded that Lopez’s statement was not the product of police

coercion.

      Further, the CCA reasonably concluded that Lopez’s statements were

voluntary under the totality of the circumstances. At the time of the interviews,

Lopez was eighteen years old and had satisfied the GED or its equivalent.

Throughout the interview, he was repeatedly reminded of his constitutional rights

and told that he was free to leave at any time. During most of the interview,

Lopez appeared calm and collected, including when he made the incriminating

statements. Looking to the totality of the circumstances, we cannot conclude that

the CCA was objectively unreasonable in applying clearly established federal law.

      Accordingly, we AFFIRM the judgment of the district court.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Chief Judge




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