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

                       FOR THE TENTH CIRCUIT                           June 7, 2018
                     _________________________________
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
MARCELLO MALDONADO
PEREZ,

       Petitioner-Appellant,

v.                                                  No. 17-1324
                                           (D.C. No. 1:15-CV-02552-RBJ)
LOU ARCHULETA, Warden,                               (D. Colo.)
F.C.F.; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

       Respondents-Appellees.
                   _________________________________

     ORDER DENYING A CERTIFICATE OF APPEALABILITY *
               _________________________________

Before LUCERO, BALDOCK, and BACHARACH, Circuit Judges.
                _________________________________

      Mr. Marcello Maldonado Perez, a Colorado state prisoner appearing

pro se, seeks a certificate of appealability to appeal the district court’s

denial of habeas relief. We deny a certificate and dismiss the appeal.

1.    Background

      Mr. Perez was convicted in Colorado state court of kidnapping,

sexual assault, and felony murder based on the fatal stabbing of a

*
      This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value under Fed. R.
App. P. 32.1(a) and 10th Cir. R. 32.1(A).
convenience store clerk. After unsuccessfully appealing and seeking

post-conviction relief in state court, Mr. Perez sought federal habeas relief

based on

     1.     violation of the Fifth Amendment through questioning without
            a Miranda warning,

     2.     violation of the constitutional right to a complete defense by
            excluding certain evidence regarding alternate suspects for the
            crimes,

     3.     denial of a fair trial by allowing the prosecution to present
            evidence of prior bad acts,

     4.     deprivation of due process by giving a flight instruction to the
            jury, and

     5.     ineffective assistance of trial counsel. 1

The district court dismissed all of the claims. Because the dismissals were

not reasonably debatable, we deny Mr. Perez’s request for a certificate of

appealability.

2.    Appellate Jurisdiction

      The threshold issue involves our jurisdiction.

      Appellate jurisdiction hinges on the timely filing of a notice of

appeal. Smith v. Barry, 

, 245 (1992). This notice was due 30

days after the filing of the judgment. Fed. R. App. P. 4(a)(1)(A).



1
      In his habeas petition, Mr. Perez also claimed ineffective assistance
on his direct appeal. But Mr. Perez did not raise this claim in his
application for a certificate for appealability.

                                       2
      The notice of appeal was filed on September 12, 2017, which was

more than 30 days after the district court’s judgment. But within the

30-day deadline, Mr. Perez had filed motions seeking leave to appeal in

forma pauperis and appointment of counsel. In these motions, Mr. Perez

identified the appellate issues and clarified that he intended to appeal the

denial of his habeas application. 2 By identifying the appellate issues and

the district court ruling, Mr. Perez supplied the functional equivalent of a

notice of appeal, triggering our appellate jurisdiction. See 

; Fleming v. Evans, 

, 1253-54 (10th Cir. 2007).

3.    The Applicable Standard for a Certificate of Appealability

      Mr. Perez must obtain a certificate to appeal the district court’s

denial of habeas relief. See 28 U.S.C. § 2253(c)(1)(A), (c)(3). To obtain a

certificate, Mr. Perez must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C.§ 2253(c)(2). When a district court rejects a

claim on the merits, the petitioner must demonstrate “that reasonable

jurists would find the district court’s assessment of the constitutional

claim[] debatable or wrong.” Slack v. McDaniel, 

, 484 (2000).




2
      Mr. Perez alleged that he had included a timely notice of appeal in
the package containing the two motions, and the two motions were filed on
August 23, 2017. The two motions also bear a certificate reflecting service
of a notice of appeal.


                                      3
      When a federal district court has dismissed a habeas petition on

procedural grounds, the petitioner must show that reasonable jurists could

debate

           the validity of the constitutional claim and

           the correctness the court’s procedural ruling.

      We consider this burden against the overarching standard in district

court for habeas relief. When a state appellate court has adjudicated a

claim on the merits, the petitioner must demonstrate that the state court’s

decision was (1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

This “highly deferential standard . . . demands that state-court decisions be

given the benefit of the doubt.” Cullen v. Pinholster, 

, 181

(2011) (internal quotation marks omitted). Deference is also required on

factual issues, where federal courts must presume the correctness of a state

court’s findings unless the petitioner presents clear and convincing

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

4.    Use of Statements Made Without a Miranda Warning

      Mr. Perez claims that his statements were used at trial even though

he had been questioned without a Miranda warning. This claim lacks
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reasonable support under our precedents because Mr. Perez was not in

custody.

      The Supreme Court has held that an individual is entitled to a

Miranda warning before a “custodial interrogation.” Miranda v. Arizona,

, 444 (1966). The interrogation is custodial when “there is a

formal arrest or restraint on freedom of movement of the degree associated

with a formal arrest.” California v. Beheler, 

, 1125 (1983)

(internal quotation marks omitted).

      To determine whether Mr. Perez was in custody, the court should

begin with “the circumstances surrounding the interrogation,” which

entails a factual question entitled to a presumption of correctness when

decided by a state court. Thompson v. Keohane, 

, 112 (1995);

see 28 U.S.C. § 2254(e)(1). The court then decides whether reasonable

persons would have believed that they could end the interrogation and

leave. 

(footnote omitted). This is a mixed

question of law and fact, which turns on application of the legal standard

to the historical facts. 

      Mr. Perez argued to the state trial court and on direct appeal that his

statements to detectives should have been suppressed based on the absence




                                          5
of a Miranda warning. 3 In rejecting this claim on the merits, the Colorado

Court of Appeals held that Mr. Perez had not been in custody during this

questioning. The court summarized the circumstances:

      The investigators asked permission to speak with [Mr. Perez];
      they questioned him on his front porch; he did not know that
      they had a warrant for his arrest; they asked general,
      open-ended questions in a conversational tone; they did not
      give defendant directions or orders; they did not restrict his
      movements; and defendant reacted calmly to their presence and
      to their questioning.

R. Vol. I at 464-65.

      Mr. Perez argued in the district court that the state appeals court had

unreasonably applied governing legal principles. But his argument was

admittedly based on a version of events that conflicted with the state

appeals court’s factual findings, which are presumed correct. 

see 28 U.S.C. § 2254(e)(1).

      Mr. Perez argues on appeal that reasonable persons would have

believed that they were in custody because

           five police officers accompanied the detective who conducted
            the questioning and

           Mr. Perez was ordered to sit in a chair.




3
      In the habeas petition, Mr. Perez also alleged violation of his
constitutional rights by the state courts’ failure to suppress statements that
he had made to his wife when she visited him in jail. But Mr. Perez did not
address this issue in his application for a certificate of appealability.

                                      6
But the state appeals court found that the police had not ordered Mr. Perez

what to do or restricted his movements, and this finding is preemptively

correct. See 28 U.S.C. § 2254(e)(1). The state appeals court also

considered the presence of the other officers. Their presence does not

undermine the state appeals court’s ultimate conclusion on custody.

                                    * * *

      Reasonable jurists could not debate the district court’s ruling on

whether Mr. Perez had been in custody when questioned by the detectives.

Thus, we decline to issue a certificate of appealability on this issue.

5.    Right to Present a Complete Defense

      We also decline to issue a certificate on the claim involving a right

to present a complete defense.

      This right is protected under the U.S. Constitution. See United States

v. Markey, 

, 1135 (10th Cir. 2004). Nonetheless, evidence

could be excluded if its probative value had been outweighed by other

factors, such as unfair prejudice, confusion of the issues, or potential to

mislead the jury. Colo. R. Evid. 403; see Taylor v. Illinois, 

,

410 (1988) (“The accused does not have an unfettered right to offer

testimony that is . . . inadmissible under standard rules of evidence.”).

      On direct appeal, Mr. Perez contended that the trial court had

violated his constitutional right to present a complete defense by excluding

evidence that other suspects (the Bautista brothers)

                                      7
           were serving life sentences for murder at the time of
            Mr. Perez’s trial,

           were violent, and

           habitually carried knives.

The state appeals court concluded that the trial court had not abused its

discretion in excluding this evidence, reasoning that

           the evidence regarding the Bautista brothers’ convictions and
            sentences would have been relevant only for an impermissible
            purpose and the conduct underlying their convictions did not
            resemble the conduct being charged here,

           the proffered testimony that the Bautista brothers were violent
            and carried knives had been too remote in time to be relevant,
            and

           the trial court had “otherwise allowed the defense significant
            latitude to introduce evidence about the Bautista brothers in an
            effort to link them to the murder in this case.”

R. Vol. I at 473.

      In his habeas petition, Mr. Perez renewed these arguments and

suggested error in excluding the requested evidence about the Bautista

brothers’ responsibility for the crimes. The district court concluded that

the record had not supported Mr. Perez’s contentions.

      For the excluded evidence, the district court reasoned that

           Mr. Perez had not shown that the exclusion was contrary to, or
            resulted from an unreasonable application of, clearly
            established federal law as established by the Supreme Court
            and



                                         8
           even if the trial court had erred in excluding the evidence, the
            error would have been harmless in light of the cumulative
            nature of this evidence and the significant evidence supporting
            Mr. Perez’s conviction.

Mr. Perez does not present a persuasive reason to question the district

court’s reasoning.

      According to Mr. Perez, the state trial court prevented a fair

opportunity to present his defense. But Mr. Perez does not address the state

courts’ contrary findings or the federal district court’s rationale on

harmlessness. Under these circumstances, reasonable jurists could not

debate the district court’s ruling on this claim.

6.    Admission of Evidence of Mr. Perez’s Prior Bad Acts

      Mr. Perez also alleges violation of the Fourteenth Amendment’s right

to a fair trial by allowing the introduction of evidence that he had

previously kidnapped a convenience store clerk with a knife. The trial

court had admitted the evidence for the limited purpose of showing the

“defendant’s identity, modus operandi, and common plan/scheme.”

R. Vol. I at 469 (internal quotation marks omitted). Thus, the court

instructed the jury that the evidence could be considered only for this

purpose.

      On direct appeal, the state appeals court upheld the trial court’s

decision under Colorado law, concluding that the potential for unfair

prejudice from this evidence had not substantially outweighed the


                                       9
probative value. The court reasoned that the evidence had involved acts

sufficiently similar to the charged offense to bear on a permissible

purpose.

      Under Supreme Court precedent, this evidentiary decision would

violate the U.S. Constitution only if the trial had been rendered

fundamentally unfair. See Estelle v. McGuire, 

, 75 (1991)

(declining to hold that admission of prior-acts evidence violated due

process because its admission did not “so infuse[] the trial with unfairness

as to deny due process of law” (internal quotation marks omitted)). The

district court concluded that the ruling had not rendered the trial

fundamentally unfair because the evidence was relevant and a limiting

instruction had lessened the potential for unfair prejudice.

      In his application for a certificate of appealability, Mr. Perez does

not challenge the district court’s reasoning; he instead argues that

admission of this evidence violated the Federal Rules of Evidence and

Colorado law. But the Federal Rules of Evidence do not apply to the trial

in state court (see Fed. R. Evid. 1101(a)), and “it is not the province of a

federal habeas court to reexamine state-court determinations on state-law

questions.” 

. Thus, reasonable jurists could not

debate the correctness of the district court’s ruling on this claim.




                                      10
7.    Jury Instruction on Flight

      Mr. Perez claims a denial of due process from the instruction that the

jury could consider flight as evidence of consciousness of guilt. On direct

appeal, Mr. Perez challenged the sufficiency of the evidence for the

instruction. The state appeals court rejected this challenge, concluding that

the instruction had fallen within the trial court’s discretion.

      In district court, Mr. Perez argued that the jury instruction on flight

had improperly lessened the prosecution’s burden of proof. The district

court rejected this claim and regarded any constitutional error as harmless.

      On appeal, Mr. Perez does not renew his argument on the burden of

proof or address the determination of harmless error. Instead, he asserts

only that the evidence did not support the jury instruction.

      The state trial and appellate courts concluded that the fact-finder

could reasonably infer flight. In federal district court, Mr. Perez did not

challenge this conclusion. Nonetheless, the federal district court concluded

that the jury instruction had been supported by the evidence. This

conclusion is not reasonably debatable.

8.    Ineffective Assistance of Trial Counsel

      Mr. Perez also challenges the rulings rejecting his

ineffective-assistance claims based on his trial counsel’s failure to depose

the Bautista brothers, to elicit expert testimony about sexual assaults, to

seek suppression of certain statements based on the Sixth Amendment, and

                                      11
to request dismissal based on the failure to preserve certain exculpatory

evidence.

      The district court regarded these claims as procedurally defaulted,

which would generally preclude habeas relief. See Woodford v. Ngo,

, 93 (2006). But Mr. Perez argued in the district court that the

procedural default was excusable because these claims had merit and he

lacked an attorney in the post-conviction proceedings. See Martinez v.

Ryan, 

, 14 (2012) (holding that a procedural default is excused

when the state failed to provide post-conviction counsel and

ineffective-assistance claims have some merit).

      Even if the ineffective-assistance claims had not been subject to a

procedural default, they would have failed on the merits. The district court

concluded that these claims had lacked merit, and Mr. Perez does not

address the district court’s conclusion or rationale. He instead asserts a

new list of alleged deficiencies in his trial counsel’s performance. 4


4
       The only claim touching on an issue presented in district court is that
his trial counsel was ineffective in failing to move for mistrial “when it
became known that the F.B.I. destroyed evidence from the case.”
Appellant’s Opening Br. at 14. In federal district court, Mr. Perez claimed
that his trial counsel should have moved for a mistrial based on the
government’s failure to preserve three specified items of allegedly
exculpatory evidence (fingerprints from a phone booth near the
convenience store, a cigarette butt from the convenience store, and
stomach contents of the victim). Mr. Perez did not link the FBI to the
failure to preserve this evidence in district court. Thus, the appellate
argument was not adequately raised in district court.

                                      12
      Our rule against considering unpreserved issues applies “not only

[to] a bald-faced new issue presented on appeal, but also [to] situations

where a litigant changes to a new theory on appeal that falls under the

same general category as an argument presented below.” Owens v.

Trammell, 

, 1246 (10th Cir. 2015) (internal quotation marks

and brackets omitted). Mr. Perez is not entitled to appellate review of these

additional incidents of ineffective assistance because he did not present

them in district court. See 

of Limitations

      Mr. Perez also wants to appeal whether the trial court had erred in

finding that he had been charged with sexual assault within Colorado’s

statute of limitations. But this issue was waived through omission in the

habeas petition. See Grant v. Royal, 

, 909 (10th Cir. 2018).

10.   Conclusion

      Because the rulings are not reasonably debatable, we deny the

request for a certificate and dismiss the appeal.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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