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

                            FOR THE TENTH CIRCUIT                              May 7, 2018
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CELESTINO QUINTANA,

      Petitioner - Appellant,

v.                                                          No. 17-1424
                                                   (D.C. No. 1:17-CV-01424-LTB)
MATTHEW HANSEN; THE ATTORNEY                                  (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
                   _________________________________

      Celestino Quintana, a state prisoner, seeks a certificate of appealability (COA)

under 28 U.S.C. 2253(c)(1) to challenge the denial of his 28 U.S.C. § 2254 habeas

petition and moves to proceed in forma pauperis (IFP). We deny the request for a

COA and deny the IFP motion.

                                   BACKGROUND

      On January 1, 2010, Quintana attended a house party of an acquaintance, and

in the early morning hours, he slit another person’s throat. Party guests summoned

the police, and upon their arrival told them that Quintana had slit the victim’s throat.

      *
         This order is not binding precedent, except under the doctrines of law of the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.
The guests then directed police to Quintana’s trailer, located in the home’s backyard.

Police went to the trailer, knocked, and announced their presence. Police opened the

trailer’s unlocked door and seized Quintana, who was standing in the doorway. Two

officers conducted a brief protective sweep of the trailer, during which they

recovered two knives in plain view. Later, the police obtained a search warrant for

the trailer. DNA testing revealed the victim’s DNA on one of the knife blades.

       Colorado then charged Quintana with first degree assault with a deadly

weapon in violation of Colo. Rev. Stat. Ann. § 18-3-202(1)(a) and five habitual-

criminal counts. Quintana moved to suppress evidence of the knives and DNA

associated with them, but the trial court denied his motion. A jury found him guilty

of first-degree assault with a deadly weapon. The trial court judge sentenced him to

64 years imprisonment. Quintana appealed his conviction, but the Colorado Court of

Appeals affirmed. On December 23, 2013, Quintana then petitioned for a writ of

certiorari, which the Colorado Supreme Court denied.

       On May 2, 2014, Quintana filed a “Motion to Appoint Conflict Free Counsel

Pursuant to Rule 35(c),” and within that motion, asked for a “continuance granting

[him] time to procure and submit [a] previously neglected post conviction 35{c} [sic]

motion.” State R. at 338. On May 7, 2014, the state district court denied this motion,

concluding that Quintana had “fail[ed] to state any grounds for post-conviction

relief.” 

The court also stated Quintana could “re-file his motion in

accordance with Rule 35(c) stating specific grounds for relief.” 

present

petition for a certificate of appealability, Quintana describes this series of filings as

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his first Rule 35(c) motion and alleges that he raised “jurisdictional and due process”

arguments in that motion, including ineffective assistance of counsel.1 Petitioner’s

Application for COA at 4.

       On October 27, 2014, Quintana filed his second post-conviction motion under

Rule 35(c) of the Colorado Rules of Criminal Procedure. In that motion, he alleged

that his trial counsel provided ineffective assistance by “fail[ing] to argue and

demand that the courts original order of a mental [] evaluation be performed by

means of a minimum thirty (30) day stay at the Colorado State Mental Hospital and

by un-biased and outside mental health professionals.” State R. at 349. He also

alleged that his trial counsel had a conflict of interest, that his mental-health

evaluations were deficient, and that the trial court judge violated the Colorado Code

of Judicial Conduct. The district court denied the motion. Quintana then appealed to

the Colorado Court of Appeals, but while the appeal was pending, he sought a limited

remand to allow the district court to consider a fourth claim, that the prosecution had

violated an agreement not to pursue habitual-criminal charges. The Colorado Court of

Appeals denied his motion for a limited remand, and on October 15, 2015, Quintana

moved to dismiss his own appeal, which the Colorado Court of Appeals granted.

       1
         The federal district court, in denying Quintana’s habeas petition and request
for a certificate of appealability, makes no mention of this alleged first Rule 35(c)
motion, and instead terms the two Rule 35(c) motions that follow as his first and
second petitions, respectively. Based on the record provided to us, it is unclear
whether Quintana filed a Rule 35(c) motion separate from his request for counsel on
May 2, 2014. For the sake of clarity, we will adopt Quintana’s description of this
filing as his first Rule 35(c) motion, and we term the two Rule 35(c) motions that
follow as his second and third motions.

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      On October 30, 2015, Quintana filed his third Rule 35(c) post-conviction

motion. He argued that the district court lacked jurisdiction to try him as a habitual

criminal because in exchange for waiving his preliminary hearing, the prosecutor had

promised not to file any habitual-criminal counts. The trial court dismissed the

motion as successive on grounds that Quintana could have brought the same claim in

his original Rule 35(c) motion, and also on grounds that the claim lacked merit. The

Colorado Court of Appeals then affirmed the trial court’s order because the petition

was a successive motion barred by Rule 35(c)(3)(VII) of the Colorado Rules of

Criminal Procedure.

      On June 12, 2017, Quintana filed the instant habeas petition, alleging three

claims: (1) that the prosecution violated his due-process rights by failing to honor an

agreement not to file habitual-criminal charges if he waived his right to a preliminary

hearing; (2) that the police violated his Fourth Amendment rights by their protective

sweep, requiring suppression of all evidence obtained from that search; and (3) that

he received ineffective assistance of counsel when his trial counsel didn’t ensure that

mental-health professionals evaluated his competency over a 30-day period.

      On September 12, 2017, the District Court of Colorado dismissed claims one

and three as procedurally barred under Rule 35(c)(3)(VII) of the Colorado Rules of

Criminal Procedure, and on November 7, 2017, the district court denied Quintana’s §

2254 habeas petition and declined to issue a certificate of appealability under 28

U.S.C. § 2253(c) on his remaining Fourth Amendment claim, relying on Stone v.

Powell, 

, 494 (1976), to foreclose that claim. In this regard, the court

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concluded that Colorado had given Quintana a full and fair opportunity to litigate that

claim. On November 20, 2017, Quintana appealed.

                                    DISCUSSION

      A. Certificate of Appealability

      Before he may appeal, Quintana must obtain a COA. 28 U.S.C. § 2253(c)(1).

To obtain a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an applicant

must demonstrate ‘that reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that issues presented were

adequate to deserve encouragement to proceed further.’” Allen v. Zavaras, 

, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 

, 484 (2000)).

Here, the issues are (1) whether Rule 35(c)(3)(VII) procedurally bars Quintana’s due

process and ineffective assistance claims (claims one and three in his habeas

petition), and (2) whether Stone v. Powell, 

, 494 (1976), bars Quintana’s

Fourth Amendment claim (claim two in his habeas petition).

      1. Rule 35(c)(3)(VII)

      We won’t “review issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless the default is excused

through a showing of cause and actual prejudice or a fundamental miscarriage of

justice.” Jackson v. Shanks, 

, 1317 (10th Cir. 1998). “A state

procedural ground is independent if it relies on state law, rather than federal law, as

the basis for the decision.” English v. Cody, 

, 1259 (10th Cir. 1998).

                                            5
And the ground is adequate if it has been “applied evenhandedly in the vast majority

of cases.” 

district court dismissed claims one and three of Quintana’s habeas

petition under Rule 35(c)(3)(VII) of the Colorado Rules of Criminal Procedure. Rule

35(c)(3)(VII) of the Colorado Rules of Criminal Procedure states that “[t]he court

shall deny any claim that could have been presented in an appeal previously brought

or post-conviction proceeding previously brought.” Colo. R. Crim. P. 35(c)(3)(VII).

This rule is both independent and adequate because it comes from Colorado law and

has been applied evenhandedly by the Colorado courts. See LeBere v. Abbott, 

, 1233 n.13 (10th Cir. 2013) (collecting several unpublished cases

determining that Rule 35(c)(3)(VII) is an independent and adequate state ground

precluding federal habeas review).

         Quintana first claims that the prosecution violated his due-process rights by

filing habitual-criminal charges after agreeing not to do so if Quintana waived his

right to a preliminary hearing. We agree with the district court that Rule

35(c)(3)(VII) bars this claim. Quintana could have presented this argument in his

October 27, 2014 Rule 35(c) post-conviction motion. He didn’t. See State R. at 349–

55. Both the trial court and the Colorado Court of Appeals rejected this claim on this

basis.

         Under his third claim, Quintana argues that his trial counsel provided

ineffective assistance by failing to object to his second mental-health evaluation,

which, he says, amounted to two 40-minute evaluations rather than a full 30-day

                                             6
evaluation. In his October 27, 2014 motion made under Rule 35(c), Quintana did

include this claim, see State R. at 349, but he later voluntarily dismissed that petition

before the Colorado Court of Appeals could decide it. He failed to exhaust his state

remedies on this claim as required. Dever v. Kansas State Penitentiary, 

,

1534 (10th Cir. 1994) (“The exhaustion requirement is satisfied if the federal issue

has been properly presented to the highest state court[.]”). Further, if Quintana now

attempted to bring this claim under a new Rule 35(c) motion, the Colorado courts

would procedurally reject his claim under Rule 35(c)(3)(VII). Anderson v. Sirmons,

, 1139 n.7 (10th Cir. 2007) (“‘Anticipatory procedural bar’ occurs

when the federal courts apply [a] procedural bar to an unexhausted claim that would

be procedurally barred under state law if the petitioner returned to state court to

exhaust it.”) (quoting Moore v. Schoeman, 

, 1233 n. 3 (10th Cir.

2002)). So the district court correctly concluded that Quintana has procedurally

defaulted his third claim, too.

      Even so, Quintana argues he can show cause for and prejudice from his failure

to bring his first claim in his first Rule 35(c) proceeding and for voluntarily

dismissing his third claim in that proceeding. To show cause, he must demonstrate

that an “objective factor external to the defense” prevented him from complying with

the state procedural rule. Lepiscopo v. Tansy, 

, 1130 (10th Cir. 1994)

(quoting Murray v. Carrier, 

, 488 (1986)). Quintana makes several

arguments to show cause and prejudice: that he is mentally incompetent, that he is



                                            7
pro se, that he has a 10th grade education, and that Colorado failed to provide him

statutorily mandated post-conviction counsel.

      Quintana has not shown that his alleged mental incompetence constitutes

cause. Quintana alleges that he suffered a brain injury before his trial that affects his

ability to comprehend the legal concepts at issue in his post-conviction challenges.

He also alleges that while awaiting trial, a mental-health professional medicated him

with Geodon, a drug to treat schizophrenia.

      Before his trial, a mental-health professional twice examined Quintana and

found him competent to stand trial. And Quintana hasn’t provided the court with any

medical records or evidence demonstrating his mental incompetence when he

voluntarily dismissed his October 27, 2014 motion under Rule 35(c). So he hasn’t

shown cause. See Bishop v. Colorado, 12 F. App’x 807, 809 (10th Cir. 2001).

      Additionally, Quintana’s “pro se status and his corresponding lack of

awareness and training on legal issues do not constitute adequate cause” to overcome

a procedural bar. Rodriguez v. Maynard, 

, 688 (10th Cir. 1991). That the

Colorado courts didn’t appoint him post-conviction counsel isn’t cause either,

because Quintana has “no constitutional right to an attorney in state post-conviction

proceedings.” Coleman v. Thompson, 

, 752 (1991). And because

Quintana “has failed to supplement his habeas claim with a colorable showing of

factual innocence, he cannot demonstrate that our failure to review his ineffective

assistance of counsel claims will result in a fundamental miscarriage of justice.”



                                            8
Smallwood v. Gibson, 

, 1269 (10th Cir. 1999). The district court

properly denied Quintana a COA on claims one and three of his habeas petition.

      2. Stone v. Powell

      “[W]here the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, the Constitution does not require that a state prisoner be

granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 

, 482 (1976). Here, at trial, Quintana moved to suppress evidence of the

knives seized from his trailer during the police officers’ protective sweep of his

home. After a suppression hearing, the trial court denied this motion. On direct

appeal, the Colorado Court of Appeals held that the police had lawfully conducted a

protective sweep when they recovered the knives. Now, in his habeas petition, he

claims that the trial court and Colorado Court of Appeals based their review of his

Fourth Amendment claim on “unreasonable fact-findings and an unreasonable

application of the relevant law.” Petitioner’s Application for COA at 24.

      What matters is that Quintana had the full and fair opportunity to litigate his

claim. We conclude that he had this opportunity, from the suppression hearing

through his direct appeal to the Colorado Court of Appeals. Quintana’s argument

amounts to a claim that the trial court and Colorado Court of Appeals came to the

wrong conclusion, which isn’t a relevant argument under Stone. Matthews v.

Workman, 

, 1194 (10th Cir. 2009) (“Mr. Matthews argues that

Oklahoma misapplied Fourth Amendment doctrine in reaching these conclusions, but

                                           9
that is not the question before us. The question is whether he had a full and fair

opportunity to present his Fourth Amendment claims in state court; he undoubtedly

did.”). The district court properly denied Quintana a COA on claim two of his habeas

petition.

       B. IFP Motion

       Having reviewed Quintana’s IFP motion on appeal, we conclude that he hasn’t

demonstrated “the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.” McIntosh v. United States Parole

Comm’n, 

, 812–13 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

, 505 (10th Cir. 1991)). Thus, we deny his IFP motion.

                                   CONCLUSION

       We deny Quintana a COA and deny his IFP motion.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge




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