                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 11, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT


 KEVIN BLANKENSHIP,

       Petitioner - Appellant,
                                                         No. 08-1476
 v.                                          (D.C. No. 05-CV-02066-WDM-KLM)
                                                          (D. Colo.)
 AL ESTEP, Warden, Limon
 Correctional Facility; JOHN W.
 SUTHERS, Colorado Attorney
 General,

       Respondents - Appellees.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Petitioner-Appellant Kevin Blankenship, an inmate appearing pro se, seeks

to appeal the district court’s denial of his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. Mr. Blankenship argues that Colo. Rev. Stat. § 19-

2-511(2)(a)(III) violates the Equal Protection Clause of the Fourteenth

Amendment. The statute permits the admission of custodial statements made by

juvenile out-of-state runaways if they are “of sufficient age and understanding.”

Colo. Rev. Stat. § 19-2-511(2)(a). However, admission of certain classes of other

juveniles’ statements requires the presence of a parent, guardian, or custodian
during interrogation and Miranda advice of rights for both the juvenile and the

parent, guardian, or custodian. Colo. Rev. Stat. § 19-2-511(1). Because he

believes the statute creates an unconstitutional classification, he requests that his

conviction be vacated and any statements and admissions he made during his

custodial interrogation be deemed inadmissible in a new trial. I R. Doc. 3 at 9.

      Mr. Blankenship was convicted in 1997 of first-degree murder, among

other crimes. I R. Doc. 3 at 2-2(a). He was sixteen years old and a runaway from

Illinois at the time of his offenses and is currently serving a life sentence without

the possibility of parole. I R. Doc. 3 at 2; I R. Doc. 19 at 1; I R. Doc. 32 at 2.

His convictions and sentences were largely affirmed on direct appeal. People v.

Blankenship, 30 P.3d 698, 709 (Colo. Ct. App. 2000). He then filed his state

post-conviction motion, containing his equal protection claim, pursuant to Colo.

Crim. P. 35(c), which was denied. The Colorado Court of Appeals affirmed the

denial of Mr. Blankenship’s motion for post-conviction relief, applying rational

basis review to the statute’s classification scheme and finding that Mr.

Blankenship failed to carry his burden of proving that the classification bears no

“rational relationship to legitimate governmental objectives and is . . .

unreasonable.” People v. Blankenship, 119 P.3d 552, 556 (Colo. Ct. App. 2005),

cert. denied, No. 05SC229, 2005 WL 2064428 (Colo. Aug. 22, 2005). On

October 20, 2005, after exhausting his state court remedies, Mr. Blankenship filed

a federal habeas petition pursuant to 28 U.S.C. § 2254. The district court, upon

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the recommendation of the magistrate judge, dismissed the petition with

prejudice. Blankenship v. Estep, No. 05-cv-02066, 2008 WL 4964712 (D. Colo.

Nov. 18, 2008).

      To appeal, Mr. Blankenship must obtain a certificate of appealability

(COA) which requires “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c). Such a showing requires petitioner to demonstrate

that “reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were ‘adequate to deserve encouragement to proceed further.’” Slack

v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S.

880, 893 n.4 (1983)). Where a claim has already been decided on its merits in

state court, a petitioner is entitled to habeas relief

      only if he can establish that the state court decision “was contrary to,
      or involved an unreasonable application of, clearly established
      Federal law, as determined by the Supreme Court of the United
      States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding,” id. § 2254(d)(2).

Smith v. Workman, 550 F.3d 1258, 1264 (10th Cir. 2008). Because Mr.

Blankenship’s claim was adjudicated on its merits in Colorado state court, the

district court applied this framework and deferred to the state court’s resolution of

his equal protection claim. Blankenship, 2008 WL 4964712, at *2-3.

      Colo. Rev. Stat. § 19-2-511 provides certain classes of juveniles greater


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protection than is required under the Constitution by requiring the presence of a

parent or guardian during interrogation and Miranda advice to both; however,

states have the freedom to grant greater protection to individual rights than is

warranted under the United States Constitution. See Arizona v. Evans, 514 U.S.

1, 8 (1995); accord Blankenship, 119 P.3d at 555. The Supreme Court has never

held that juveniles have a right to the presence of a parent or guardian during

custodial interrogation, let alone that the parent or guardian also must be advised

of Miranda’s requirements. See Miranda v. Arizona, 384 U.S. 436, 467 (1966)

(articulating a baseline model for protecting Fifth Amendment rights, and

indicating that any alternative procedures must be at least as effective). Rather,

whether a juvenile has validly waived his Fifth Amendment rights must be

assessed by the totality of the circumstances. Fare v. Michael C., 442 U.S. 707,

724-25 (1979). Although Mr. Blankenship argued that his waiver of his Fifth

Amendment rights was neither knowing nor voluntary, that claim was resolved

against him on direct appeal and is not challenged here. Blankenship, 30 P.3d at

702-04.

      The Colorado court determined that any classification arising out of Colo.

Rev. Stat. § 19-2-511(2)(a)(III) warranted only rational basis review.

Blankenship, 119 P.3d at 554-56. It then determined that the Colorado legislature

could provide for different treatment given the likely proximity of the parents,

guardians, or custodians of in-state runaways, as opposed to those same groups

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vis-à-vis out-of-state runaways, and that the classification furthered the state’s

interest in timely investigations, which often include interrogations. Id. at 556-

57.

      On appeal, Mr. Blankenship contends that he is not arguing about in-state

versus out-of-state runaways, but rather the classification between out-of-state

juveniles who are “of sufficient age and understanding” and those who are not.

This issue was resolved against Mr. Blankenship on direct appeal where the

Colorado Court of Appeals determined that this requirement was subsumed by a

finding that any waiver comport with federal constitutional standards, i.e., be

knowing, intelligent, and voluntary, a standard applicable to all. Blankenship, 30

P.3d at 707.

      He also argues that the district court should have applied strict scrutiny.

However, because the statute does not “target a suspect class, involve a

fundamental right, or implicate intermediate scrutiny,” it “need only be rationally

related to a legitimate government purpose.” KT & G Corp. v. Att’y Gen. of

State of Okla., 535 F.3d 1114, 1137 (10th Cir. 2008) (internal quotation marks

and citation omitted). Age is not a suspect class for purposes of equal protection,

Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000), and Mr. Blankenship has

not demonstrated that any other classification in the statute warrants a heightened

level of scrutiny. Moreover, while protection under the Fifth Amendment entails

a fundamental liberty interest, the statute does not burden that interest. Rather,

                                         -5-
for certain classes of juveniles, it simply broadens those protections. Therefore,

because Mr. Blankenship has not shown, as required under 28 U.S.C. § 2254, that

reasonable jurists could debate that the state court’s decision to apply rational

basis review was not only wrong but also unreasonable, either as a determination

of fact or as an application of clearly established federal law, we cannot grant a

COA. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004).

      We DENY a COA and DISMISS the appeal. Appellant’s motion to proceed

in forma pauperis is GRANTED.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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