                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   July 14, 2020
                                                                Christopher M. Wolpert
                                TENTH CIRCUIT                       Clerk of Court



ANGEL QUINTANA,

      Petitioner-Appellant,

v.                                                      No. 19-1195
                                               (D.C. No. 1:15-CV-01569-PAB
TRAVIS TRANI; ATTORNEY                                   (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

      Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HOLMES, MURPHY, and CARSON, Circuit Judges.


      Pro se Petitioner-Appellant Angel Quintana, 1 a Colorado state prisoner,

seeks a certificate of appealability (“COA”) to challenge the district court’s denial

of his petition under 28 U.S.C. § 2254. He also appeals from the denial of his


      *
              This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and 10th
Circuit Rule 32.1.
      1
              Because Mr. Quintana is proceeding pro se, we construe his filings
liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); accord Garza
v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010), but “we will not ‘assume the
role of advocate,’” United States v. Parker, 720 F.3d 781, 784 n.1 (10th Cir.
2013) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008)).
motion for appointment of counsel and seeks leave to proceed in forma pauperis

(“IFP”). Mr. Quintana, however, does not make any arguments in his briefing

challenging the merits of the district court’s denial of his § 2254 petition.

Instead, his only argument on appeal is that the district court’s order denying his

motion to appoint counsel violated his due-process rights. Accordingly,

exercising jurisdiction under 28 U.S.C. § 1291, we deny Mr. Quintana a COA

and, insofar as his appeal relates to the district court’s resolution of his § 2254

petition, dismiss the matter. As for the court’s order denying Mr. Quintana’s

motion for appointment of counsel, we affirm. 2 We deny Mr. Quintana’s motion

to proceed IFP.

                                           I

      Following a jury trial, Mr. Quintana was convicted in a Colorado court of

criminal attempt to commit reckless manslaughter, first-degree assault, and two

counts of second-degree kidnapping with a deadly weapon. He was sentenced to

forty-eight years’ imprisonment. On direct appeal, the Colorado Court of Appeals



      2
             Mr. Quintana “need not obtain a COA to appeal the district court’s
denial of [his] motion to appoint counsel.” United States v. Page, 636 F. App’x
447, 448 n.2 (10th Cir. 2016) (unpublished) (citing Harbison v. Bell, 556 U.S.
180, 183 (2009)); see also Harbison, 556 U.S. at 183 (holding that a COA is not
required to appeal the denial of a motion to appoint counsel because 28 U.S.C. §
2253(c)(1)(A) only requires a COA for appeals of “final orders that dispose of the
merits of a habeas corpus proceeding” and “[a]n order that merely . . . denies a
motion for appointment of counsel . . . is not such an order”).

                                          2
affirmed the conviction, and the Colorado Supreme Court denied certiorari. Mr.

Quintana’s motion for state post-conviction relief was also denied by the state

trial court. The Colorado Court of Appeals affirmed the denial, and the Colorado

Supreme Court once again denied certiorari.

      Mr. Quintana then filed a pro se § 2254 petition in federal district court,

raising approximately thirty-six claims for relief. The district court dismissed

several of the claims as procedurally defaulted before granting Mr. Quintana’s

motion to stay, giving him time to exhaust several ineffective-assistance claims.

      Once the § 2254 proceedings resumed, the district court considered the

following claims: (1) the state trial court violated Mr. Quintana’s speedy-trial

rights, (2) the prosecution failed to prove beyond a reasonable doubt that Mr.

Quintana committed second-degree kidnapping against one of the victims, (3) the

trial court entered inconsistent verdicts on both reckless and intentional mental

states for the same act against the same victim, (4) his Sixth Amendment right to

counsel was violated because his trial counsel had a conflict of interest, and (5)

he received ineffective assistance of counsel on various grounds, including

counsel’s alleged failure to adequately investigate his case and effectively cross-

examine certain witnesses.

      The district court rejected claim one and many ineffective-assistance-of-

counsel subclaims because they were procedurally barred. It rejected claims two,


                                          3
three, four, and the rest of the ineffective-assistance-of-counsel subclaims

because the state court’s determinations as to those claims were not contrary to or

an unreasonable application of federal law as determined by the Supreme Court.

Consequently, the district court denied the § 2254 petition and dismissed the

action with prejudice.

      The district court also denied a COA and leave to proceed IFP on appeal,

certifying pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken

in good faith. Moreover, during the course of his habeas proceedings, Mr.

Quintana sought appointment of counsel, and the district court denied the motion

as premature. Upon entry of final judgment, Mr. Quintana appealed.

                                         II

      Before turning to the merits, we must first determine whether Mr.

Quintana’s notice of appeal (“NOA”) is timely. Mr. Quintana’s NOA was dated

one day before the filing deadline, but was filed five days after the deadline. This

court ordered Mr. Quintana to show cause why his appeal should not be dismissed

for lack of appellate jurisdiction due to the untimely filing of the NOA. The

order invited Mr. Quintana to resolve the timeliness issue by availing himself—if

appropriate and applicable—of the prison mailbox rule.

      Under the prison mailbox rule, a notice of appeal is timely—regardless of

when it was received by the court—so long as it was deposited in the prison mail


                                          4
system on or before the filing deadline, and:

               (A) it is accompanied by:

                   (i) a declaration in compliance with 28 U.S.C. § 1746—or a
                       notarized statement—setting out the date of deposit and
                       stating that first-class postage is being prepaid; or

                   (ii) evidence (such as a postmark or date stamp) showing that
                       the notice was so deposited and that postage was prepaid;
                       or

               (B) the court of appeals exercises its discretion to permit the later
               filing of a declaration or notarized statement that satisfies Rule
               4(c)(1)(A)(i).

F ED . R. A PP . P. 4(c)(1).

       Our order advised Mr. Quintana that he could file a supplement to his

NOA, declaring under penalty of perjury that it was placed in the prison mail

system on or before the deadline, with first-class postage prepaid. Mr. Quintana

filed such a supplement, declaring under penalty of perjury that he placed his

NOA in the prison mail system on May 23, 2019—before the filing

deadline—with first-class postage prepaid.

       We thus permit the filing of Mr. Quintana’s declaration—which complies

with the requirements of Rule 4(c)(1)(A)(i)—and accordingly deem his NOA

timely. See Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1350–51 (10th

Cir. 2017) (exercising discretion under Rule 4(c)(1)(B) to permit the later filing

of a declaration complying with Rule 4(c)(1)(A)(i) and treating the appeal as


                                             5
timely, where the prisoner’s NOA was dated the same day as the filing deadline,

but wasn’t filed until six days later).

                                          III

                                          A

      We lack jurisdiction to consider the merits of a petitioner’s § 2254 appeal

unless he first obtains a COA. See 28 U.S.C. § 2253(c)(1)(A). We may only

issue a COA “if the [petitioner] has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). “To make this showing, an applicant must

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.’”

United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

      Mr. Quintana does not challenge the merits of the court’s resolution of his

§ 2254 petition. Instead, his sole argument on appeal is that the district court’s

order denying his motion to appoint counsel violated his due-process rights.

Thus, he has waived any challenge to the district court’s denial of his § 2254

petition. See Lockett v. Trammell, 711 F.3d 1218, 1230 (10th Cir. 2013) (holding

that petitioner had waived an issue on appeal because he failed to raise it in his

opening brief); United States v. Springfield, 337 F.3d 1175, 1178 (10th Cir. 2003)


                                          6
(holding that petitioner had waived a claim “because he failed to address [it] in

either his application for a COA or his brief on appeal”); see also Mathews v.

McKune, 133 F. App’x 512, 514 (10th Cir. 2005) (unpublished) (holding that

petitioner’s claim had been abandoned on appeal because, although he “briefly

assert[ed]” it in his “motion for a COA,” he “d[id] not brief the issue”). As a

consequence, Mr. Quintana has failed to make a substantial showing of the denial

of a constitutional right, and we must deny his application for a COA.

                                            B

       Mr. Quintana’s challenge to the district court’s order denying his motion

for appointment of counsel also fails. Mr. Quintana has no constitutional right to

counsel beyond his direct appeal, and “generally appointment of counsel in a

§ 2254 proceeding is left to the [district] court’s discretion.” Swazo v. Wyo.

Dep’t of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). The

district court’s denial of counsel “will not be overturned unless it would result in

fundamental unfairness impinging on due process rights.” Long v. Shillinger, 927

F.2d 525, 527 (10th Cir. 1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th

Cir. 1981) (per curiam), abrogated on other grounds by Farmer v. Haas, 990 F.2d

319, 321–22 (7th Cir. 1993)). 3


       3
             In Farmer, the Seventh Circuit abrogated Maclin’s multifactor test for
whether a court abused its discretion in denying an indigent’s motion for appointment of
                                                                             (continued...)

                                            7
       “In determining whether to appoint counsel, the district court should

consider a variety of factors, including [1] the merits of the litigant’s claims, [2]

the nature of the factual issues raised in the claims, [3] the litigant’s ability to

present his claims, and [4] the complexity of the legal issues raised by the

claims.” Id.; accord Skinner v. Uphoff, 175 F. App’x 255, 260–61 (10th Cir.

2006) (unpublished); see Willis v. FBI, 274 F.3d 531, 533 (D.C. Cir. 2001).

       Mr. Quintana’s argument focuses on the third Long factor—that is, the

litigant’s ability to present his claims. Mr. Quintana argues that, because he has

no legal training and only a seventh-grade education, he was unable to present his

claims effectively. Thus, he contends, the district court’s decision to deny him

counsel effected an unconstitutional deprivation of his due-process rights. The

principal trouble with this argument, however, is that the district court never

reached the merits in denying Mr. Quintana’s motion for appointment of counsel.



       3
          (...continued)
counsel under 28 U.S.C. § 1915, stating that “the multiple factors of Maclin . . . collapse
upon inspection” and that “the necessary inquiry is simpler than Maclin’s multi-factorial
approach implies.” 990 F.2d at 321–22; see id. at 322 (holding that the proper inquiry
asks instead, “[G]iven the difficulty of the case, did the plaintiff appear to be competent
to try it himself and, if not, would the presence of counsel have made a difference in the
outcome?”). We, however, adopted Maclin’s multifactor test in Long, 927 F.2d at 527
(citing Maclin, 650 F.2d at 887–89), and it remains the law of our circuit. See, e.g., Rucks
v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995); Peoples v. Baker, 795 F. App’x 610,
613 (10th Cir. 2020) (unpublished); Schupper v. Cafasso, 708 F. App’x 943, 947 (10th
Cir. 2017) (unpublished); see also Farmer, 990 F.2d at 322 (recognizing that we adopted
the Maclin test in Long).

                                             8
Instead, it simply denied the motion as premature. 4 And Quintana makes no

attempt to explain why the motion was not premature.

      In Flute v. United States, 723 F. App’x 599 (10th Cir. 2018) (unpublished),

a panel of this court declined to even consider such a deficient challenge to a

district court’s denial of a motion for appointment of counsel as premature. See

id. at 602 (declining to address Flute’s argument that the magistrate judge erred in

denying Flute’s motion to appoint counsel where (1) the magistrate judge only

denied the motion as premature, and (2) Flute did not offer an explanation as to

why the motion was not premature). And that course of action certainly was

appropriate because “[t]he first task of an appellant is to explain to us why the

district court’s decision was wrong.” Nixon v. City & Cty. of Denver, 784 F.3d

1364, 1366 (10th Cir. 2015).




      4
              The court entered this order at the same time that it stayed the habeas
proceedings to give Mr. Quintana time to exhaust certain ineffective-assistance
claims in state court. There is no indication in the record that, at the time the
court resumed the habeas proceedings, Mr. Quintana renewed his motion for
appointment of counsel. Notably, prior to this district court order, a magistrate
judge had twice denied motions by Mr. Quintana for appointment of counsel on
the same basis: that is, the motions were deemed premature. Mr. Quintana did not
file objections to these orders with the district court. Therefore, insofar as he
seeks to challenge those magistrate-judge orders in this appeal, we lack
jurisdiction to consider any such challenges. See, e.g., Utah v. Gollaher, 804 F.
App’x 947, 951 (10th Cir. 2020) (unpublished); Wishneski v. Dona Ana Cty., 498
F. App’x 854, 863 (10th Cir. 2012) (unpublished).

                                          9
         Just as in Flute, Mr. Quintana fails to explain why the district court was

wrong to deny his motion for appointment of counsel as premature.

Consequently, we hold that Mr. Quintana has waived any argument that the

district court abused its discretion by denying his motion as premature and decline

to consider whether denying the motion on the merits would have constituted a

violation of his constitutional rights. Accordingly, we uphold the district court’s

order.

                                            IV

         While the district court certified that any appeal would not be taken in good

faith, this court may still grant Mr. Quintana’s motion to proceed IFP. Rolland v.

Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007) (“[A] party

who seeks [IFP] status and is certified by the district court as not appealing in

good faith may nonetheless move this court for leave to proceed on appeal [IFP]

pursuant to the mechanism set forth in [Federal] Rule [of Appellate Procedure]

24(a)(5).”). However, in such a scenario, “we will only grant pauper status if we

conclude that the appeal contains a non-frivolous argument.” Allen v. Falk, 624

F. App’x 980, 986 (10th Cir. 2015) (unpublished); see also Rolland, 497 F.3d at

1079 (considering, then denying, a party’s motion to proceed IFP, after the

district court had certified that the appeal was not taken in good faith, because the

party failed to raise a non-frivolous argument).


                                            10
      For purposes of the IFP statute, “a complaint . . . is frivolous where it lacks

an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325

(1989); see Requena v. Roberts, 893 F.3d 1195, 1209 (10th Cir. 2018) (applying

that definition to call “an argument” frivolous). Because Mr. Quintana (1) waived

any challenge to the merits of the district court’s denial of his § 2254 petition,

and (2) did not even attempt to explain why denying his motion for appointment

of counsel as premature was an abuse of discretion, we hold that this appeal lacks

an arguable basis in law and fact and is therefore frivolous. As a result, Mr.

Quintana’s motion for leave to proceed IFP is denied.

                                           V

      Based on the foregoing, we DENY Mr. Quintana a COA and DISMISS this

matter, insofar as it challenges the district court’s denial of Mr. Quintana’s

§ 2254 petition. We AFFIRM the district court’s order denying Mr. Quintana’s

motion for appointment of counsel and DENY him IFP status.


                                 ENTERED FOR THE COURT



                                 Jerome A. Holmes
                                 Circuit Judge




                                          11
