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

                            FOR THE TENTH CIRCUIT                            August 2, 2016
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
KEVIN R. HERRERA,

      Petitioner - Appellant,

v.                                                          No. 15-1471
                                                   (D.C. No. 1:15-CV-00136-RM)
JOHN FALK, Sterling Correctional; THE                        (D. Colo.)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Kevin R. Herrera, a Colorado state prisoner proceeding pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his

28 U.S.C. § 2254 application for writ of habeas corpus. He also seeks leave to

proceed in forma pauperis (“ifp”). We deny both requests and dismiss this matter.




      *
         This order is not binding precedent, except under the doctrines of law of the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.
                                    I. Background

      According to the state court,1 Mr. Herrera and two of his cousins (D.T. and

A.S.) conspired to take revenge on a rival gang member who shot Mr. Herrera’s

brother. Driving a green Toyota RAV4, the three approached a pickup truck in which

the person who shot Mr. Herrera’s brother and another victim (R.M.) were sitting. At

least one of the three relatives fired gunshots into the pickup truck, killing the person

who shot Mr. Herrera’s brother and seriously wounding R.M.

      Mr. Herrera was charged with first degree murder, attempted first degree

murder, conspiracy to commit first degree murder, accessory to second degree

murder, and accessory to attempted first degree murder. A jury convicted

Mr. Herrera of the conspiracy and accessory counts, but could not reach a verdict on

the first degree murder and attempted first degree murder counts, which were

ultimately dismissed. The trial court sentenced Mr. Herrera to a total of 44 years in

state prison (40 years on the conspiracy count and four years on each accessory

count, which ran concurrently to each other but consecutively to the conspiracy

count). The Colorado Court of Appeals (“CCA”) affirmed Mr. Herrera’s convictions

on direct appeal, and the Colorado Supreme Court (“CSC”) denied certiorari.

      Mr. Herrera filed a motion for postconviction relief under

Colo. R. Crim. P. 35(c) alleging his appellate counsel was ineffective and the


      1
       “[W]e presume that the factual findings of the state court are correct unless
[Mr. Herrera] presents clear and convincing evidence otherwise.” Lockett v.
Trammel, 711 F.3d 1218, 1222 (10th Cir. 2013) (internal quotation marks omitted).

                                            2
prosecutor committed misconduct during grand jury proceedings. After several

hearings on his motion, the trial court denied relief. Again, the CCA affirmed and

the CSC denied certiorari.

      Mr. Herrera applied for a writ of habeas corpus under 28 U.S.C. § 2254. A

magistrate judge determined his application was timely and that he had exhausted all

state remedies. The district court denied Mr. Herrera’s application on the merits,

dismissed the application, denied a COA, and denied leave to proceed ifp on appeal.

Mr. Herrera filed a combined opening brief and application for COA in this court and

requests leave to proceed ifp.

                                  II. Legal Standard

      Before he can appeal the district court’s order denying his application for

habeas relief, Mr. Herrera must obtain a COA. 28 U.S.C. § 2253(c)(1)(A). This

requires Mr. Herrera to make “a substantial showing of the denial of a constitutional

right.” Id. at § 2253(c)(2). He must show that reasonable jurists could debate

whether his petition should have been granted or that the issues presented deserve

encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

      Federal habeas applications for review of state court decisions are governed by

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under

AEDPA, if a state court adjudicated the merits of an applicant’s claim, a federal court

cannot grant habeas relief unless the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as



                                           3
determined by the Supreme Court” or “was based on an unreasonable determination

of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2).

                                      III. Analysis

      Mr. Herrera argues he is entitled to habeas relief because he received

ineffective assistance of counsel in his direct appeal and the prosecutor committed

misconduct during the grand jury proceedings that led to his indictment.2 We

conclude that jurists of reason could not disagree with the district court’s decision to

deny Mr. Herrera’s claims and that these issues do not deserve encouragement to

proceed further. We therefore deny Mr. Herrera’s request for COA.

                        A. Ineffective Assistance of Counsel

      Mr. Herrera claims his appellate counsel was ineffective because he failed to

make the following arguments on appeal: (1) Mr. Herrera was given inadequate

notice that he could be subject to aggravated sentencing; (2) his right to a speedy trial

was violated because he was tried more than six months after pleading not guilty; and

(3) the admission of certain hearsay statements at trial violated Mr. Herrera’s right to

confront the witnesses against him.

      To prevail on an ineffective assistance claim, a defendant must show his

attorney’s performance was deficient and he was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984). In the appellate context, this means showing


      2
        Because Mr. Herrera appears pro se, we construe his arguments liberally.
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). But this rule of liberal
construction stops at the point we begin to serve as his advocate. Id.

                                            4
his attorney’s decision not to raise a particular issue on appeal was objectively

unreasonable and there is a reasonable probability that, had his attorney raised the

issue, the defendant would have prevailed. See Smith v. Robbins, 528 U.S. 259, 285

(2000) (citing Strickland, 466 U.S. at 687-91, 694).

      The Strickland standard is highly deferential, and the application of AEDPA

makes it doubly so. Harrington v. Richter, 562 U.S. 86, 105 (2011). Under the

AEDPA, the question is not whether the Strickland test is satisfied, but “whether the

state court’s application of the Strickland standard was unreasonable.” Id. at 101. If

“fairminded jurists could disagree on the correctness of the state court’s decision,”

habeas relief is inappropriate. Id. (internal quotation marks omitted).

                               1. Aggravated Sentence

      Mr. Herrera first argues that his attorney was ineffective because he failed to

argue on direct appeal that the trial court violated Mr. Herrera’s due process rights by

giving him an aggravated sentence without adequate notice. According to

Mr. Herrera, the prosecution was required to provide notice in the indictment that he

might be subject to an aggravated sentence.

      Mr. Herrera was convicted of, among other offenses, conspiracy to commit

first degree murder, a Class 2 felony. The presumptive sentencing range for a Class

2 felony is 8-24 years. See Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A) (2015). But a

defendant who was on probation for a felony when he committed the offense is

subject to an aggravated sentencing range of “at least the midpoint in the presumptive

range but not more than twice the maximum term authorized in the presumptive

                                           5
range.” Id. § 18-1.3-401(8)(a)(III). Thus, a defendant who commits a Class 2 felony

while on probation for a felony is subject to an aggravated sentencing range of 16-48

years in prison.3

      Mr. Herrera’s presentence investigation report (“PSIR”), which Mr. Herrera

received and reviewed with his attorneys before the sentencing hearing, reported that

Mr. Herrera was on probation for a felony drug conviction at the time of the offense.

Mr. Herrera was given an opportunity at the hearing to correct the information in the

PSIR, but he did not contest his status as a probationer and his attorney conceded that

Mr. Herrera was subject to the aggravated sentencing range. The trial court agreed,

and sentenced Mr. Herrera to 40 years in prison on the conspiracy charge.

      In Mr. Herrera’s state postconviction proceeding, the CCA rejected Mr.

Herrera’s argument that the prosecution was required to provide notice in the

indictment that he may be subject to an aggravated sentence. It noted that the fact of

a prior conviction, unlike other facts that increase the maximum penalty for a crime,

need not be “charged in an indictment, submitted to a jury, and proven beyond a

reasonable doubt.” R. at 206 (quoting Apprendi v. New Jersey, 530 U.S. 466, 476

(2000)); see also People v. Huber, 139 P.3d 628, 633 (Colo. 2006) (applying

Apprendi’s prior-conviction exception to defendant’s sentence to probation). The

CCA concluded that an appeal on this issue would not have succeeded, so


      3
        Although Mr. Herrera cites Apprendi v. New Jersey, 530 U.S. 466 (2000), he
does not argue that the prosecution was required to prove the fact of his prior
conviction or his probationer status to a jury beyond a reasonable doubt.

                                           6
Mr. Herrera had failed to prove prejudice under Strickland. On § 2254 review, the

federal district court found no flaw in the state court’s analysis and we agree.

       Mr. Herrera has not shown that jurists of reason could disagree with the

district court’s decision to deny his ineffective assistance claim on this issue or that

the issue deserves encouragement to proceed further. We therefore deny COA on

this issue.

                                     2. Speedy Trial

       Mr. Herrera next argues his attorney was ineffective for failing to raise a

speedy trial claim on direct appeal. Specifically, he argues the trial court violated his

statutory right to a speedy trial because he was tried more than six months after he

entered his not guilty plea. See Colo. Rev. Stat. § 18-1-405(1) (2015).

       Section 18-1-405(1) requires a defendant to be brought to trial within six

months after he enters his not guilty plea. But “[i]f a trial date is offered by the court

. . . and neither the defendant nor his counsel expressly objects to the offered date . . .

then the period within which the trial shall be had is extended until such trial date.”

Id. § 18-1-405(5.1).

       Mr. Herrera pled not guilty on April 3, 2003. Immediately following his plea,

Mr. Herrera’s attorney accompanied the prosecutor to the judge’s chambers and

scheduled Mr. Herrera’s trial off the record with the help of the judge’s clerk.

Mr. Herrera was not present for this meeting. His trial began on November 17, 2003,

about seven months after Mr. Herrera entered his not guilty plea.



                                             7
      On state postconviction review, the CCA found there was no violation of Mr.

Herrera’s right to a speedy trial because, under § 18-1-405(5.1), Mr. Herrera’s

attorney accepted the trial date and neither Mr. Herrera nor his attorney expressly

objected to the date until after the speedy trial period had expired.4 Mr. Herrera

claims § 18-1-405(5.1) does not apply because he “was not present at the trial date

setting [and] therefore could not object to the trial date offered at that time.” Aplt.

Br. at 12. But as the CCA observed, that is not the law in Colorado. See State v.

Allen, 885 P.2d 207, 211 n.7 (Colo. 1994) (defendant waived right to claim a speedy

trial violation under § 18-1-405(5.1) when court clerk contacted defendant’s attorney,

who agreed to trial date and did not object on speedy trial grounds until day of trial);

People v. Franco, 74 P.3d 357, 358-59 (Colo. App. 2002) (“nothing in the plain

language of § 18-1-405(5.1) precludes an off-the-record trial setting” and section

does not “specify that the defendant or defense counsel must be physically present at

the time the trial setting occurs”). We defer to the state court’s interpretation of

Colorado law. See Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013).

      There is no dispute that both Mr. Herrera and his attorney had actual notice of

the trial date and several opportunities to object before the speedy trial period

expired. By failing to do so, Mr. Herrera waived his right to claim a speedy trial

violation on appeal. See Franco, 74 P.3d at 359 (“To establish a waiver, the record

      4
         Mr. Herrera contends he notified the trial court of the “speedy trial issue” at a
hearing on September 12, 2003, Aplt. Br. at 12, but he does not dispute that neither
he nor his attorney expressly objected to the trial date on speedy trial grounds until
after the speedy trial period expired.

                                            8
must demonstrate that: (1) defense counsel had actual notice of the date for which

trial is set; and (2) defense counsel had an adequate opportunity to object.”). The

state court reasonably concluded that an appeal on this issue would not have

succeeded and, therefore, Mr. Herrera failed to prove prejudice.

      Jurists of reason could not disagree with the district court’s decision to deny

this part of his ineffective assistance claim. We therefore deny COA on this issue.

                               3. Confrontation Clause

      Mr. Herrera argues his appellate counsel was ineffective because he failed to

raise a Confrontation Clause challenge to the admission of hearsay statements by

R.M. (a victim) and D.T. (a codefendant). Criminal defendants have a Sixth

Amendment right to confront the witnesses against them. U.S. Const. amend. VI.

The Confrontation Clause prohibits prosecutors from introducing testimonial hearsay

against a defendant unless the declarant is unavailable and the defendant had a prior

opportunity to cross-examine him. See Crawford v. Washington, 541 U.S. 36, 68

(2004). Generally speaking, a statement is “testimonial” if “the primary purpose of

the conversation was to create an out-of-court substitute for trial testimony.” Ohio v.

Clark, 135 S. Ct. 2173, 2180 (2015) (internal quotation marks and brackets omitted).

For example, statements made during an officer’s “formal, out-of-court interrogation

of a witness to obtain evidence for trial” are testimonial, United States v. Garcia,

793 F.3d 1194, 1212 (10th Cir. 2015), cert. denied, 136 S. Ct. 860 (2016), but a

casual remark to an acquaintance is not, Crawford, 541 U.S. at 51.



                                           9
                                 a. R.M.’s Statements

      At trial, a police officer testified that he interviewed one of the victims, R.M.,

at the hospital after the shooting. R.M. described the location of the shooting,

hearing several gunshots, ducking down in the car, feeling pain in his hand and side,

and seeing a dark green utility vehicle similar to a Toyota RAV4 with three

occupants. The officer recounted R.M.’s statements to the jury.

      The CCA on postconviction review found that R.M.’s statements were

testimonial, but concluded their admission was harmless beyond a reasonable doubt.

See United States v. Summers, 414 F.3d 1287, 1303 (10th Cir. 2005) (Confrontation

Clause violations are subject to harmless error analysis, which requires the

government to show any error was harmless beyond a reasonable doubt). It reasoned

that R.M.’s statements were cumulative of and corroborated by other evidence, and

gave specific examples of testimony from other witnesses who provided essentially

the same details R.M. described. See United States v. Toles, 297 F.3d 959, 968 (10th

Cir. 2002) (the cumulative nature of the testimony and whether it is corroborated by

other witnesses are among the factors to consider in determining whether admission

of hearsay statements is harmless). The CCA concluded Mr. Herrera would not have

been able to successfully challenge the admission of R.M.’s statements on direct

appeal, so appellate counsel’s failure to raise the issue did not prejudice him.

      The federal district court agreed with the CCA’s analysis, and Mr. Herrera has

given us no reason to conclude otherwise. Although Mr. Herrera generally asserts

“[t]here is no cumulative evidence” and “none of the statements were harmless,”

                                           10
Aplt. Br. at 22, he does not refute the state court’s numerous examples of overlapping

testimony by other witnesses and does not explain why the state court’s conclusion

was incorrect. Mr. Herrera has failed to show that jurists of reason could disagree

with the district court’s decision to deny this aspect of his ineffective assistance

claim. We therefore deny COA on this issue.

                                 b. D.T.’s Statements

      The trial court admitted two sets of out-of-court statements by one of

Mr. Herrera’s co-defendants, D.T. First, a fellow gang member, E.A., testified that

he saw D.T. and Mr. Herrera at a bar sometime after Mr. Herrera’s brother was shot.

According to E.A., D.T. “said he was on a mission.” R. at 218. E.A. asked whether

D.T. was “going to go handle that,” and D.T. responded, “Yeah, you know it.” Id.

D.T. then showed E.A. “an SKS or an AK, some type of rifle.” Id. Later in the trial,

a police detective testified that he interviewed a witness, R.D., who told the detective

about a conversation he had with D.T. The detective testified that D.T. told R.D. that

D.T. had an AK-47 and “his bullets hit” the victim, and that Mr. Herrera “was also

shooting.” Id.

      On state postconviction review, the CCA concluded that all of D.T.’s

statements were nontestimonial because they “were not made in response to police

interrogation, and a reasonable person in D.T.’s position would not make such

incriminating statements if he believed they would later be used against him and his

co-conspirators.” Id. at 219. As a result, the CCA found that appellate counsel



                                           11
would not have prevailed on a confrontation challenge, so Mr. Herrera was not

prejudiced by counsel’s failure to raise the issue.

      The federal district court agreed that D.T.’s inculpatory statements to E.A.—a

fellow gang member—were nontestimonial and properly admitted. See United States

v. Smalls, 605 F.3d 765, 779-80 (10th Cir. 2010) (inmate’s inculpatory statement to

someone he believed was a fellow inmate and friend was nontestimonial).

      But the district court disagreed with the state court’s conclusion that D.T.’s

statements to R.D. were admissible. It found that although D.T.’s statements to R.D.

were nontestimonial, R.D.’s description of the statements to the detective was

testimonial. Because it was the detective who recounted D.T.’s statements to R.D. at

trial, the district court found that their admission violated Mr. Herrera’s confrontation

right. Nonetheless, the district court concluded the statements were cumulative of

other properly admitted evidence, including D.T.’s statements to E.A., so their

admission was harmless beyond a reasonable doubt. The district court summarized

the other evidence that duplicated D.T.’s statements to R.D. Although one aspect of

D.T.’s statements to R.D. was not cumulative of other evidence—that Mr. Herrera

“was also shooting”—the district court concluded this statement could not have

affected the jury’s decision because the jury did not convict Mr. Herrera of first

degree murder or attempted first degree murder, but only of conspiracy and

accessory, which other evidence amply supported. Because it concluded the

admission of D.T.’s statements to R.D. was harmless beyond a reasonable doubt, the



                                           12
district court held that appellate counsel’s failure to raise the claim on direct appeal

did not prejudice Mr. Herrera under Strickland.

         As noted above, Mr. Herrera generally asserts that there was no cumulative or

harmless evidence, but he fails to explain why the district court’s analysis was

unsound. Nor does he dispute the examples the district court cited supporting its

conclusion that D.T.’s statements to R.D. duplicated other testimony. Mr. Herrera

has failed to show that jurists of reason could disagree with the district court’s

decision to deny this ineffective assistance claim. We therefore deny COA on this

issue.

                             B. Prosecutorial Misconduct

         Mr. Herrera argues the prosecutor committed misconduct during grand jury

proceedings by falsely stating that a shell casing recovered from the car used in the

shooting matched a gun owned by Mr. Herrera’s brother and obtained by Mr. Herrera

shortly before the shooting. The prosecutor did not repeat the statement at trial. The

district court held that, even if the prosecutor’s actions rose to the level of

misconduct, Mr. Herrera had identified no clearly established federal law that an

indictment must be dismissed based on prosecutorial misconduct if the misconduct is

not repeated at trial and the petit jury convicts. We agree. See United States v.

Mechanik, 475 U.S. 66, 70 (1986) (the petit jury’s conviction rendered “any error in

the grand jury proceeding connected with the charging decision . . . harmless beyond

a reasonable doubt”); Wilkerson v. Whitley, 28 F.3d 498, 503 (5th Cir. 1994)

(“prosecutorial misconduct in a grand jury proceeding may be deemed harmless if the

                                            13
petit jury convicts”); Anderson v. Sec’y for Dep’t of Corr., 462 F.3d 1319, 1327

(11th Cir. 2006) (“There is no Supreme Court precedent clearly establishing a

constitutional rule that, irrespective of prosecutorial misconduct, an indictment must

be dismissed because of perjured grand jury testimony where the perjured testimony

is not repeated before the petit jury which convicts.”).

      Jurists of reason could not disagree with the district court’s decision to deny

this claim. We therefore deny COA on this issue.

                                    IV. Conclusion

      We deny Mr. Herrera’s request for a COA and dismiss this matter. We also

deny his motion to proceed ifp.


                                            Entered for the Court


                                            Scott M. Matheson, Jr.
                                            Circuit Judge




                                           14
