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

                              TENTH CIRCUIT                                 April 1, 2015

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court

    DONOVAN CRAIG MATTHEWS,

           Petitioner - Appellant,
    v.                                                     No. 15-1011
    BOBBY BONNER, Warden;                                 (D. Colorado)
    CYNTHIA COFFMAN, the                        (D.C. No. 13-cv-01876-RBJ-KLM)
    Attorney General of the State of
    Colorado, 

           Respondents - Appellees.




         ORDER DENYING A CERTIFICATE OF APPEALABILITY
                  AND DISMISSING THE APPEAL


Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.



          The present appeal grew out of a wedding celebration between

Mr. Matthews and his new bride. According to the prosecution, the

celebration ended when Mr. Matthews beat his new wife with a

baseball bat and brass knuckles. Mr. Matthews was convicted on state

charges of assault and illegal possession of a weapon.




 Pursuant to Fed. R. App. P. 43(c)(2) John Suthers is replaced by Cynthia
Coffman as the Attorney General of the State of Colorado.
        After unsuccessfully appealing and seeking certiorari in state

court, Mr. Matthews sought federal habeas relief. The federal district

court denied relief, and Mr. Matthews wants to appeal on two

grounds:

        1.   Waiver of Miranda Rights. Mr. Matthews could not waive
             his Miranda rights because he was intoxicated.

        2.   Substitution of Counsel. The trial court should have
             appointed another attorney because Mr. Matthews was
             dissatisfied with his legal representation.

In addition, Mr. Matthews seeks leave to proceed in forma pauperis.

        We dismiss the appeal. Because Mr. Matthews is unable to

appeal, his application for leave to proceed in forma pauperis is

moot.

               Request for a Certificate of Appealability

        To appeal, Mr. Matthews needs a certificate of appealability.

28 U.S.C. § 2253(c)(1)(A) (2012). For the certificate, Mr. Matthews

must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2) (2012). This showing exists only if

reasonable jurists could find the district court’s rulings debatable or

wrong. See Slack v. McDaniel, 

, 484 (2000); Laurson v.

Leyba, 

, 1232 (10th Cir. 2007). We conclude the

rulings are not reasonably debatable or wrong.




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I.    Validity of the Miranda Waiver

      All agree that Mr. Matthews was intoxicated when he talked to

the police. Based in part on this intoxication, Mr. Matthews moved to

suppress the evidence of his statements, arguing that he was unable

to understand his Miranda rights. The trial court conducted an

evidentiary hearing and denied the motion. 1 In doing so, the trial

court found that Mr. Matthews had understood the warnings when he

waived his Miranda rights. Tr. Mot. to Suppress 134, 137-39, Colo.

v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo. Dist. Ct. Nov. 30,

2007).

      “Whether [Mr. Matthews] understood his Miranda rights is a

question of fact.” Valdez v. Ward, 

, 1231 (10th Cir.

2000). Because the state district court decided this factual question,

we regard the court’s finding as presumptively correct. 28 U.S.C.

§ 2254(e)(1) (2012). To rebut this presumption, Mr. Matthews had to

present clear and convincing evidence that the court’s factual

determination was incorrect. 

did not present any such evidence to the federal

district court or to us. In state court, one detective testified that Mr.


1
     The record on appeal does not include the proceedings on the
motion to suppress. But, we take judicial notice of these proceedings.
See Barnes v. United States, 

, 1137 n.1 (10th Cir.
2015).
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Matthews had been oriented to his surroundings and had given

responsive answers. Tr. Mot. to Suppress 52-53, Colo. v. Matthews,

No. 07-CR-1097 (Adams Cnty., Colo. Dist. Ct. Nov. 30, 2007).

Another officer added that Mr. Matthews had acknowledged he

understood his rights, had not expressed an inability to understand

the discussion, and had answered in a manner that was appropriate

and responsive. 

83-84. Under these circumstances, any

reasonable jurist would conclude that Mr. Matthews failed to rebut

the presumption of correctness with clear and convincing evidence.

II.   Alleged Failure to Appoint a New Attorney

      In addition, Mr. Matthews contends that the trial court should

have appointed new counsel when the attorney-client relationship

broke down. This contention is not reasonably debatable.

      At the preliminary hearing, Mr. Matthews asked for a new

attorney, then said he would try to find an attorney. 2 Roughly four


2
     The transcript of the preliminary hearing is not in our record on
appeal. But, we take judicial notice of the transcript. See note 1,
above. The transcript shows the following discussion between Mr.
Matthews and the court:

      The Court:       . . . And then you’re gonna hire your own
                       attorney, Mr. Matthews?

      Mr. Matthews:    Ah, I would like to at least try to get another
                       state-appointed one toward me.

      The Court:       Well, you . . .
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weeks later, Mr. Matthews attended court with the same attorney, and

no one said anything about the need to appoint a new attorney. See

Tr., passim, Colo. v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo.

Cnty. Ct. June 6, 2007); see also note 1, above (discussing judicial

notice). The trial court assumed that Mr. Matthews no longer wanted

appointment of a new attorney, and the Colorado Court of Appeals




     Mr. Matthews:     . . . until I can, until then, Sir.

     The Court:        Well, no, I mean, you’ve got one appointed
                       right now.

     Mr. Matthews:     Yeah, I know that but evidently she doesn’t
                       want to work with me, so.

     The Court:        Well, that’s neither here nor there, so you hire
                       your own or you’re . . . she’s on board . . .
                       doesn’t matter to me. Do you want to try and
                       hire your own?

     Mr. Matthews:     I guess so.

     The Court:        Okay. That’s fine. Let me re-set this and give
                       you some time.

     * * * *

     Mr. Matthews:     I’ve got paperwork that I need to give you,
                       too, Sir.

     The Court:        Well, you have your . . . when you hire your
                       attorney, they can file it.

Tr. at 2-4, Colo. v. Matthews, No. 07-CR-1097 (Adams Cnty., Colo.
Cnty. Ct. May 9, 2007).
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found that Mr. Matthews had abandoned his request for substitute

counsel.

       If we were to entertain an appeal, Mr. Matthews would need to

overcome the Colorado Court of Appeals’ factual finding that he had

abandoned his request for appointment of new counsel. See Batchelor

v. Cain, 

, 407 (5th Cir. 2012) (“Whether [the petitioner]

abandoned his Faretta motion and thereby waived his right to

represent himself is a question of fact.”). This finding would be

presumptively correct unless Mr. Matthews presented clear and

convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1)

(2012).

       Mr. Matthews has not presented any such evidence either in

federal district court or on appeal. Thus, his argument for reversal is

not reasonably debatable.

III.   Summary

       Because no reasonable jurist could credit either of Mr.

Matthews’s arguments, we deny a certificate of appealability and

dismiss the appeal.

                          In Forma Pauperis

       Mr. Matthews seeks not only a certificate of appealability, but

also leave to proceed in forma pauperis. Because we have dismissed

the appeal, the application for pauper status is dismissed on the

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ground of mootness. Johnson v. Keith, 

, 1136 (10th

Cir. 2013) (denying leave to proceed in forma pauperis on the ground

of mootness upon denial of a certificate of appealability).


                                   Entered for the Court



                                   Robert E. Bacharach
                                   Circuit Judge




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