Garcia v. Figueroa , 401 F. App'x 369 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 5, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
NORMAN GARCIA,
Petitioner - Appellant,
No. 10-1356
v. (D.C. No. 1:07-CV-02514-MSK)
(D. Colo.)
FRED FIGUEROA; JOHN SUTHERS,
The Attorney General of the State of
Colorado,
Respondents - Appellees.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, McKAY, and LUCERO, Circuit Judges.
Petitioner-Appellant Norman Garcia, a state inmate appearing pro se, seeks
a certificate of appealability (“COA”) allowing him to appeal the district court’s
denial of his application for a writ of habeas corpus. 28 U.S.C. § 2253; 28 U.S.C.
§ 2254. For this court to issue a COA on a habeas claim denied on the merits,
Mr. Garcia must make a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), which requires him to demonstrate that
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). For a
habeas claim denied on procedural grounds, Mr. Garcia must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and . . . whether the district court was correct in its
procedural ruling.” Id. Because we conclude that Mr. Garcia has failed to make
a “substantial showing of the denial of a constitutional right,” we deny a COA
and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
In 2004, Mr. Garcia was convicted of six counts involving sexual assault on
a child, and was sentenced to concurrent terms, the longest of which was 24 years
to life, and lifetime parole. 1 R. 5. The Colorado Court of Appeals affirmed his
conviction on direct appeal. Id., 89 (People v. Garcia, No. 04CA1606 (Colo. Ct.
App. Oct. 26, 2006)). He sought rehearing which was denied on July 19, 2007,
with the mandate issuing on September 5, 2007. Id., 113, 115. The instant
application was filed December 3, 2007.
The federal district court denied Mr. Garcia’s application on alternative
bases, one procedural and one substantive. The district court first held that Mr.
Garcia had failed to exhaust his state remedies by not seeking certiorari from the
Colorado Supreme Court and was procedurally barred from correcting this failure.
See Garcia v. Figueroa, 2010 WL 2692172, at *4-*6 (D. Colo. July 6, 2010). On
the merits, the district court held that the Colorado Court of Appeals’ decision
correctly affirmed the denial of Mr. Garcia’s Miranda claim. Id. at *4, *6-*9.
We have yet to rule on the effect of Colo. R. App. P. 51.1(a) which obviates the
need to seek certiorari, see Mitchell v. Watkins, 252 F. App’x 874, 877 (10th Cir.
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Oct. 25, 2007) (unpublished). We need not do so in this case, and instead deny a
COA on the merits.
Mr. Garcia’s Miranda claim is governed by a deferential standard of
review. Federal courts may grant state prisoners’ habeas petitions only if the
State court proceedings:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that 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); see T. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
Additionally, state court findings of fact are presumed correct; a defendant has
the burden of rebutting the presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).
As the state court recognized, Miranda warnings are required only when a
suspect is subjected to “custodial interrogation.” See Miranda v. Arizona, 384
U.S. 436, 444 (1966). A suspect is in “custody” if, under the totality of the
circumstances, someone in the suspect’s position “would reasonably believe her
freedom of action had been curtailed to a ‘degree associated with a formal
arrest.’” United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (quoting
California v. Beheler, 463 U.S. 1121, 1125 (1983)). Courts consider several
factors in making this determination: whether the suspect was made aware that he
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could decline to answer questions; the nature of the questioning, particularly its
length; and whether the interview took place in a “police dominated atmosphere.”
Id. at 1528-19.
In this case, the facts relied upon by the Colorado courts support a finding
that Mr. Garcia was not in custody. Mr. Garcia was made aware that he could
decline to answer questions, 1 R. 91; the questioning lasted approximately two
hours, and at one point Mr. Garcia asked the detective to stay and complete the
interview, id., 92; and the interview took place in a social services building with a
plainclothes detective who did not brandish a weapon or otherwise assert his law-
enforcement authority. Id., 92, 94. Although (1) a police officer issued Mr.
Garcia a “Notice to Appear” at his residence the day before the questioning,
which may have led Mr. Garcia to believe that he was going to be arrested, and
(2) Mr. Garcia was told that he did not need an attorney, these factors are part of
the “totality of the circumstances” courts must examine to determine whether
Miranda warnings are necessary. Griffin, 7 F.3d at 1518 (citation omitted).
The Colorado Court of Appeals identified appropriate factors supporting
the state trial court’s conclusion that Mr. Garcia was not in custody. 1 R. 94. It
noted that the questioning occurred at a social services center, Mr. Garcia was
told at the beginning of the interview that he was not required to answer any
questions, he was not restrained, and the detective made no threats, but spoke to
Mr. Garcia calmly. Id., 95. Given the deferential standard of review, no
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reasonable jurist could conclude that federal district court’s assessment of Mr.
Garcia’s habeas petition was wrong.
Accordingly, we DENY Mr. Garcia’s request for a COA, DENY IFP, and
DISMISS his appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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