FILED
                                                        United States Court of Appeals
                         UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            October 5, 2010

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 CHRISTOPHER WEEDMAN,

           Petitioner-Appellant,

 v.
                                                               No. 10-1282
 WARDEN STEVE HARTLEY and THE                         (D.C. No. 1:08-CV-01740-CMA)
 ATTORNEY GENERAL OF THE                                         (D. Colo.)
 STATE OF COLORADO,

           Respondents-Appellees.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL and LUCERO, Circuit Judges.


       Christopher Weedman seeks a Certificate of Appealability (COA) in order to

appeal the district court’s dismissal of his petition for a writ of habeas corpus under 28

U.S.C. § 2254. Weedman is serving a sentence of life in prison without the possibility of

parole after being convicted of first degree murder under Colorado law. His conviction

and sentence were affirmed by the courts of Colorado on direct appeal, and his requests

for state post-conviction relief were denied.

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Then, on August 15, 2008, Weedman filed, pro se, a petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Weedman raised, inter alia, four issues: (1) that his Sixth

Amendment right to counsel was violated because a videotape was introduced at trial

showing a police interrogation that continued after he requested counsel, (2) that his Fifth

Amendment right to a fair trial was violated because the jury was shown the videotape of

the police interrogation, (3) that his Sixth Amendment right to counsel was violated

because his attorney failed to adequately investigate and present exculpatory evidence,

and (4) that his Sixth Amendment Confrontation Clause rights were violated because the

trial court admitted unreliable hearsay statements of a nontestifying co-defendant. The

district court dismissed Weedman’s petition and also denied his motion for a COA.

Weedman filed motions for a COA and to proceed in forma pauperis with this Court. We

deny those motions and dismiss this appeal.

                                              I.

       Under 28 U.S.C. § 2253(c)(1)(A), Weedman may only obtain review of the district

court’s dismissal of his § 2254 petition if this Court elects to grant a COA. He may be

granted a COA “only if [he] has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Weedman can make out such a showing

by demonstrating “that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong” where the district court ruled on the merits of

his claims. Slack v. McDaniel, 

, 484 (2000).

                                            A.

       First, Weedman argues that his Sixth Amendment right to counsel was violated

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because a videotape was introduced at trial showing a police interrogation that continued

after he requested counsel. Weedman argues that this was a structural error, which

cannot be deemed harmless. We disagree.

       A structural error “is a ‘defect affecting the framework within which the trial

proceeds, rather than simply an error in the trial process itself.’” Johnson v. United

States, 

, 468 (1997) (quoting Arizona v. Fulminante, 

, 310

(1991)). But structural errors only occur in a “very limited class of cases.” 

has found errors to be structural when there is a

       total deprivation of the right to counsel at trial, a biased presiding judge, the
       systematic exclusion of members of the defendant’s own race from a grand jury,
       the denial of the right to self-representation at trial, the denial of the right to a
       public trial, the denial of the right to have a district judge (rather than a magistrate
       judge) preside over jury selection, and a defective reasonable doubt instruction.

Malicoat v. Mullin, 

, 1250 (10th Cir. 2005), cert. denied, 

(2006).

       Most constitutional errors that occur in trial proceedings are not structural, and,

therefore, subject to harmless-error analysis. 

. That is

because “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”

Delaware v. Van Arsdall, 

, 681 (1986). “[I]f the defendant had counsel and

was tried by an impartial adjudicator, there is a strong presumption that any other errors

that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 

, 579 (1986).

       Here Weedman argues that his right to counsel was violated when he requested

counsel during a police interrogation but the police continued to question him. Weedman

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does not allege that he was totally deprived of counsel throughout trial. Nor does he

allege any other violation found by this court to be structural error. Therefore, we agree

with the district court that this does not amount to structural error and is, therefore,

subject to harmless-error review. See United States v. Parra, 

, 1068 (10th

Cir. 1993) (applying harmless-error review to erroneous introduction of statements made

in response to a police interrogation after the defendant requested counsel).

       A constitutional error does not warrant habeas relief unless it had a “substantial

and injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 

, 637

(1993). We make this harmless-error determination based upon a review of the entire

state court record. Herrera v. Lemaster, 

, 1179 (10th Cir. 2000).

       We agree with the district court that any violation of Weedman’s Sixth

Amendment rights that occurred in the police interrogation was harmless error. When the

police continued to question Weedman after he requested counsel, he did not confess, he

did not incriminate himself, and he did not waver on his claim of innocence. (State Ct. R.

Vol. 14.) Further, most of the substance of what was said in the police interrogation was

also elicited from the testimony of trial witnesses. Weedman complains that in the video

shown to the jury the police discussed his status as a fugitive, the likelihood that he

would not testify at trial, and their opinion about his guilt. Multiple witnesses testified at

trial about Weedman’s status as a fugitive. (State Ct. R. Vol. 7, at 214, 282.) In fact,

Weedman’s attorney elicited that testimony. (Id.) And the court advised the jury that it

could not consider Weedman’s failure to testify as evidence of his guilt. (State Ct. R.

Vol. 10, at 45.)

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       We are more concerned with the police officer’s statements about their opinion of

Weedman’s guilt. The district court found that “a statement by a detective during an

interview opining that a suspect is guilty is merely an accusation similar to the charges

that ultimately may be filed against the suspect.” Weedman v. Hartley, No. 08-cv-01740,

, at *10 (D. Colo. June 23, 2010). We do see some merit in

Weedman’s argument that a jury will give undue weight to statements made by the police

concerning their opinion about who committed a crime that they investigated. But while

that may have been error, we find that it was harmless error. The court specifically

instructed the jury that it should not take the charge against Weedman as evidence of his

guilt. (State Ct. R. Vol. 10, at 38.) Further, reviewing the entire state court record and

the weight of the evidence against Weedman, including the victim’s blood found on his

shoes and testimony from multiple witnesses about his interaction with the victim on the

night of the murder, we conclude that this error did not have a substantial and injurious

effect on the jury’s verdict. Therefore, we cannot say that reasonable jurists would find

the district court’s assessment of this constitutional claim debatable or wrong. So

Weedman is not entitled to a COA on this first issue.

                                             B.

       Second, Weedman argues that his Fifth Amendment right to a fair trial was

violated because the jury was shown the videotape of the police interrogation. We

disagree for the same reasons as the district court.

       “[I]t is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal court is

                                              5
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the

United States.” Estelle v. McGuire, 

, 67–68 (1991). “Habeas relief may not

be granted on the basis of state court evidentiary rulings unless they rendered the trial so

fundamentally unfair that a denial of constitutional rights results.” Mayes v. Gibson, 

, 1293 (10th Cir. 2000). In order to get habeas relief, the trial court’s

evidentiary error must be “so grossly prejudicial that it fatally infected the trial and

denied the fundamental fairness that is the essence of due process.” Fox v. Ward, 

, 1296–97 (10th Cir. 2000), cert. denied, 

(2000).

       For the same reasons discussed in response to Weedman’s first argument, we find

that the introduction of the videotape of the police interrogation did not violate

Weedman’s Fifth Amendment right to a fair trial. Again, other witnesses testified about

most of the substance that was on the videotape. And because of the overwhelming

weight of additional evidence against Weedman, we cannot say that the introduction of

this videotape was so grossly prejudicial that it fatally infected the entire trial. Therefore,

reasonable jurists would not find the district court’s assessment of this constitutional

claim debatable or wrong. So Weedman is not entitled to a COA on this second issue.

                                              C.

       Third, Weedman argues that his Sixth Amendment right to counsel was violated

because his attorney failed to adequately investigate and present exculpatory evidence.

Again we disagree.

       To establish that counsel was ineffective, Weedman must demonstrate both that

counsel’s performance fell below an objective standard of reasonableness and that

                                               6
counsel’s deficient performance resulted in prejudice to his defense. Strickland v.

Washington, 

, 687 (1984). So if Weedman fails to satisfy either prong, his

ineffective assistance claim must be dismissed. 

“Judicial scrutiny of

counsel’s performance must be highly deferential.” 

And there is a “strong

presumption” that counsel’s performance falls within the range of “reasonable

professional assistance.” 

the burden to overcome this presumption by

showing that the alleged errors were not sound strategy under the circumstances. 

that counsel was ineffective are not sufficient to warrant habeas

relief. Humphreys v. Gibson, 

, 1022 n.2 (10th Cir. 2001).

       Turning to the first prong, Weedman cannot establish that counsel’s performance

fell below an objective standard of reasonableness. Weedman complains that his counsel

failed to introduce a statement made by his co-defendant to the police that the co-

defendant and another juvenile, Danny Lake, committed the murder. (Aplt. B. at 3(f).)

Weedman’s counsel, however, cross-examined a detective that was present in an

interview with Weedman’s co-defendant. (State Ct. R. Vol. 9, at 54–100.) During that

cross-examination, Weedman’s counsel elicited some of the co-defendant’s hearsay

statements by reading parts of a transcript from that interview. (Id. at 75–80.) During

that interview, the co-defendant implicated Danny Lake in the murder, as well as himself

and Weedman. (Id. at 77–79.) The co-defendant also indicated in that interview that

Danny Lake threatened to kill the co-defendant if he “snitched.” (Id.)

       Weedman seems to argue that his counsel should have introduced a recorded

statement instead of his co-defendant’s hearsay statement. (See Aplt. B. at 3(g) (“[A]

                                             7
hearsay statement versus a recorded statement taken by the police does not carry the same

weight as one another.”).) But Weedman has not identified any written or recorded

statements in the record that if introduced would have been any different from or more

compelling than the hearsay elicited by his counsel. Further, Weedman has not pointed

to any statement made by the co-defendant that exculpates Weedman. The only

statement this Court can identify in the record based on Weedman’s argument inculpates

another juvenile, Danny Lake, but it also inculpates Weedman. Therefore, we cannot

conclude based on the record that counsel’s performance fell below an objective standard

of reasonableness.

       Weedman also seems to argue that counsel should have introduced this statement

to show the trial court that the nontestifying co-defendant’s hearsay statements were not

reliable. Weedman suggests that counsel should have highlighted for the trial court the

difference between his co-defendant’s statement to the police, which inculpated the co-

defendant, Danny Lake, and Weedman, and the co-defendant’s statements to witnesses

introduced at trial, which inculpated just the co-defendant and Weedman. (See Aplt. B.

at 3(g).) While counsel did not use the specific statement that Weedman points to in his

argument concerning the nontestifying co-defendant’s hearsay statements, counsel did

argue that the statements were unreliable. (State Ct. R. Vol. 5, at 15.) Counsel argued

that the co-defendant’s statements to various witnesses were different and inconsistent.

(Id.) Under the circumstances, Weedman has failed to establish that this was not

counsel’s sound strategy; counsel made an argument that the nontestifying co-defendant’s

hearsay statements were not reliable without using a statement that inculpated his client.

                                             8
That strategic choice by defense counsel does not fall below an objective standard of

reasonableness. See 

. Weedman alleges nothing more than

conclusory allegations, and those allegations do not give rise to habeas relief.

       Because Weedman failed to satisfy the first prong of the Strickland test, we need

not even analyze the second prong. And because Weedman failed to satisfy even the first

prong of the Strickland test, reasonable jurists would not find the district court’s

assessment of this constitutional claim debatable or wrong. So Weedman is not entitled

to a COA on this third issue.

                                              D.

       Finally, Weedman argues that the admission of unreliable hearsay statements of

his nontestifying co-defendant violated his Sixth Amendment Confrontation Clause

rights. Weedman argues that because his co-defendant exercised his Fifth Amendment

right to not testify at trial, the introduction of his nontestimonial statements implicating

himself and Weedman in the murder violated Weedman’s Confrontation Clause rights.

Weedman urges us to apply the old rule announced in Ohio v. Roberts to decide this

Confrontation Clause issue. 

, 66 (1970) (explaining that the admission of

hearsay does not violate the Confrontation Clause if the declarant was unavailable to

testify and the statement bore “adequate ‘indicia of reliability’”), abrogated by Crawford

v. Washington, 

(2004). But the district court determined that the new rule

announced in Crawford v. Washington and further explained in Davis v. Washington

applies to this case. 

(2004); 

, 821 (2006) (clarifying that the

Confrontation Clause does not apply to nontestimonial statements). The district court

                                              9
stated that, “legal research has not led to the discovery of any Supreme Court or Tenth

Circuit precedent that controls the outcome of this issue.” Weedman, 

,

at *30. So it looked to a Sixth Circuit case and determined that the Crawford and Davis

rule did apply retroactively. 

       Supreme Court and Tenth Circuit precedent establishes that Crawford does not

apply retroactively. See Whorton v. Bockting, 

, 409 (2007); Brown v.

Uphoff, 

, 1226 (10th Cir. 2004) (both finding that under Teague v. Lane,

(1989), Crawford should not be applied retroactively). No Supreme Court

or Tenth Circuit precedent, however, indicates whether Davis applies retroactively. But

we need not address that issue to resolve this case. Under either the old Roberts rule or

the new rule announced in Crawford and further explained in Davis, Weedman’s

Confrontation Clause rights were not violated.

       The right of a defendant to confront the witnesses against him is guaranteed by the

Sixth Amendment and applies in both federal and state prosecutions. Stevens v. Ortiz,

, 1235 (10th Cir. 2006), cert. denied, 

(2007). “The central

concern of the Confrontation Clause is to ensure the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact.” Maryland v. Craig, 

, 845 (1990).

Therefore, “an out-of-court statement that falls within an exception to a hearsay rule

under a state’s evidentiary rules must nonetheless be excluded from a defendant’s trial if

its admission would deprive him of his constitutional right of confrontation.” 

(citing Dutton v. Evans, 

(1970)).

                                               10
       Under the Roberts rule, which was in place during Weedman’s trial, the admission

of a hearsay statement does not violate the Confrontation Clause if the declarant was

unavailable to testify and the statement bore “adequate ‘indicia of reliability.’” 

. It is undisputed that the declarant, Weedman’s co-defendant, was

unavailable because he invoked his Fifth Amendment right not to testify. Therefore, the

first part of this rule is satisfied. According to the second part of the Roberts rule, the

reliability of a hearsay statement can be inferred from the fact that the statement falls

“within a firmly rooted hearsay exception” or by “a showing of particularized guarantees

of trustworthiness.” 

this rule, “accomplices’ confessions that

inculpate a criminal defendant are not within a firmly rooted exception to the hearsay

rule.” Lilly v. Virginia, 

, 119 (1999) (plurality opinion). So while the

reliability of the hearsay statement that Weedman complains of cannot be inferred on that

basis, the reliability can be inferred by a showing of particularized guarantees of

trustworthiness.

       The hearsay statements about which Weedman complains were made in the

following circumstances: First, Weedman’s co-defendant asked two witnesses to swear

not to tell anyone about what he would say, and then he told them about the murder and

the motives for the crime. (State Ct. R. Vol. 8, at 89.) Another statement was made

when the co-defendant was watching a report of the murder on television with a witness.

(State Ct. R. Vol. 8, at 130–31.) The witness asked him if he knew the victim, to which

he responded that he and Weedman had killed her. (Id.) In all of the statements the co-

defendant did not inculpate Weedman in order to exculpate himself. Instead he admitted

                                              11
to two witnesses that both he and Weedman killed the victim under the impression that

his statements would remain secret. Further, the content of the statements made by the

co-defendant included details about the crime, including the location of various stab

wounds and the fact that the victim’s body was left without certain articles of clothing,

which were not released to the public. (State Ct. R. Vol. 5, at 16–17; State Ct. R. Vol. 8,

at 90–94.) Therefore, particularized guarantees of trustworthiness exist, and the

admission of these statements did not violate Weedman’s Confrontation Clause rights

under the Roberts rule. See 

(finding that particularized

guarantees of trustworthiness existed when the declarant’s statements were self-

inculpatory and included details of the crime).

       The Supreme Court first criticized the Roberts rule in Crawford as a rule that was

both underinclusive and overinclusive. 

. Then, two years later, the Supreme

Court explained in Davis, that the Confrontation Clause has no application to

nontestimonial hearsay 

. “It is the testimonial character of

the statement that separates it from other hearsay that, while subject to traditional

limitations upon hearsay, is not subject to the Confrontation Clause.” 

that the hearsay statements complained of were nontestimonial in nature. (Aplt.

B. at 3(c).) Further, the statements were made informally and out of court or custody to

an acquaintance. Therefore, the hearsay statements were nontestimonial, and under

Davis the Confrontation Clause does not apply. See 

n.5

(explaining that “formality is indeed essential to testimonial utterance”). Thus, we

conclude that analyzing Weedman’s claim under Crawford and Davis, the admission of

                                             12
these statements did not violate Weedman’s Confrontation Clause rights.

       Under either the Roberts rule or the Crawford and Davis rule, Weedman’s Sixth

Amendment Confrontation Clause rights were not violated. Therefore, reasonable jurists

would not find the district court’s assessment of this constitutional claim debatable or

wrong. So Weedman is not entitled to a COA on this fourth issue.

                                             II.

       After fully reviewing the record and Weedman’s arguments, we hold that the

district court correctly disposed of Weedman’s claims in his petition. While there may

have been error in the introduction of the videotape at trial that showed the police

interrogation after Weedman requested counsel, that error was harmless. And the

introduction of that videotape was not so grossly prejudicial that it fatally infected the

entire trial. Weedman failed to establish that counsel’s performance fell below an

objective standard of reasonableness. And finally, under either the Roberts rule or the

Crawford and Davis rule, the admission of the hearsay statements complained of did not

violate Weedman’s Confrontation Clause rights.

       Weedman has not made a substantial showing of the denial of a constitutional

right, and so we DENY a COA, DENY in forma pauperis status, and DISMISS this

appeal.

                                                          Entered for the Court

                                                          David M. Ebel
                                                          Circuit Judge




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