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

                            FOR THE TENTH CIRCUIT                              June 13, 2019
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 JESUS LOYA QUEZADA,

       Petitioner - Appellant,

 v.                                                           No. 19-1136
                                                    (D.C. No. 1:18-CV-01924-CMA)
 RICK RAEMISCH, Executive Director,                            (D. Colo.)
 Colorado Department of Corrections; THE
 ATTORNEY GENERAL OF THE STATE
 OF COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before McHUGH, KELLY, and MORITZ, Circuit Judges.
                  _________________________________

      Jesus Loya Quezada, a Colorado prisoner proceeding pro se, seeks a certificate

of appealability (COA) to appeal the district court’s order dismissing his 28 U.S.C.

§ 2254 petition.1 For the reasons explained below, we deny Quezada’s request for a

COA and dismiss this matter.




      *
         This order isn’t binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Because Quezada appears pro se, we liberally construe his pleadings. See
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). But we won’t act as his
advocate. See id.
      Quezada is serving a 16-year sentence for possessing cocaine with the intent to

distribute it. The evidence at trial included testimony from a confidential informant

who said that Quezada offered to sell him nearly a kilogram of cocaine. The

informant then visited Quezada’s home and saw the cocaine in the kitchen. Based in

part on the informant’s report, law enforcement obtained a warrant to search

Quezada’s home (and any vehicles on the curtilage of his home) for drugs. They

found 944 grams of cocaine in a truck parked in Quezada’s driveway. The state also

introduced at trial a fingerprint card purporting to contain Quezada’s fingerprints; it

used the card to show that Quezada’s fingerprints were on the cocaine.

      On direct appeal, Quezada argued that (1) the search warrant was invalid

because it lacked a nexus between the alleged criminal activity and the place to be

searched, and (2) the trial court erroneously admitted the fingerprint card without a

proper foundation and in violation of his rights under the Confrontation Clause. The

Colorado Court of Appeals (CCA) rejected Quezada’s arguments and affirmed his

conviction and sentence. People v. Loya-Quezada, No. 14CA1229, slip op. at 20

(Colo. App. Aug. 17, 2017) (unpublished). It found that the informant’s report of

cocaine in the kitchen “would lead a person of reasonable caution to believe that a

fair probability existed that the contraband would be found on the premises,

including the curtilage of the home, which would include the truck parked in the

driveway.” Id. at 7. Next, the CCA concluded that although the trial court erred in

admitting the fingerprint card without a proper foundation, the error was harmless

because of the overwhelming evidence against Quezada. See id. at 13–14. Likewise,

                                           2
the CCA found that any Confrontation Clause violation arising from admission of the

fingerprint card was also harmless. See id. at 14–15.

       Quezada then filed a petition for habeas relief in federal district court, again

challenging the validity of the search and the admission of the fingerprint evidence.

The district court denied both claims. It first concluded that the Fourth Amendment

claim was barred by Stone v. Powell, 428 U.S. 465 (1976). Stone held that as long as

the state “provided [the petitioner with] an opportunity for full and fair litigation of a

Fourth Amendment claim,” a federal court may not grant habeas relief on such a

claim. 428 U.S. at 494. The phrase “full and fair litigation” means (1) “the procedural

opportunity to raise or otherwise present a Fourth Amendment claim,” (2) a “full and

fair evidentiary hearing,” and (3) “recognition and at least colorable application of

the correct Fourth Amendment constitutional standards.” R. 49 (quoting Gamble v.

Oklahoma, 583 F.2d 1161, 1165 (10th Cir. 1978)); see also United States v. Lee Vang

Lor, 706 F.3d 1253, 1257–58 (10th Cir. 2013) (explaining standards for Fourth

Amendment claims brought in habeas proceedings).

       Applying these standards to this case, the district court noted that Quezada had

the opportunity to and did litigate his Fourth Amendment claim at a suppression

hearing in state trial court. Further, the district court’s review of the suppression

hearing revealed that “the trial court thoughtfully considered and applied appropriate

Supreme Court precedent” to properly reject the motion to suppress. R. 49. Thus, the

district court concluded, Quezada’s Fourth Amendment claim was “barred by Stone.”

Id. at 50.

                                            3
      Next, the district court rejected Quezada’s claims based on the improperly

admitted fingerprint card. It began by noting that federal habeas relief isn’t available

for errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67 (“[F]ederal habeas

corpus relief does not lie for errors of state law.” (quoting Lewis v. Jeffers, 497 U.S.

764, 780 (1990))). Instead, the district court explained, the question on habeas review

is whether the admission of the challenged evidence “render[ed] the trial

fundamentally unfair.” R. 54 (quoting Lott v. Trammell, 705 F.3d 1167, 1190 (10th

Cir. 2013)). And the district court found no fundamental unfairness in Quezada’s

case because even ignoring the improperly admitted fingerprint evidence, the state

presented other overwhelming evidence of Quezada’s guilt. For example, the

informant testified that Quezada offered to sell him nearly a kilogram of cocaine; law

enforcement found nearly a kilogram of cocaine in the truck; Quezada admitted the

truck was his; the state introduced evidence that the truck was registered to Quezada;

and Quezada admitted that he knew the cocaine was in his truck and told conflicting

stories about how it ended up there.

      For similar reasons, the district court also denied relief on the Confrontation

Clause element of this claim. Referencing the CCA’s harmlessness ruling on this

claim, the district court noted that “a federal court may not award habeas relief under

§ 2254 unless [the state court’s] harmlessness determination itself was

unreasonable.” R. 58 (quoting Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015)). And it

found nothing unreasonable in the CCA’s decision, relying again on the

overwhelming evidence against Quezada. In the alternative, the district court also

                                            4
concluded that Quezada wasn’t entitled to relief on this claim because he couldn’t

overcome the even higher harmlessness standard that applies in habeas cases. That is,

in light of the overwhelming evidence against him, Quezada couldn’t show that any

Confrontation Clause violation arising from the erroneous admission of the

fingerprint card “had [a] substantial and injurious effect” on the verdict. R. 59

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Thus, the district court

denied Quezada’s § 2254 petition.

      Quezada now seeks to appeal, but he must first obtain a COA. See 28 U.S.C.

§ 2253(c)(1)(A). To do so, Quezada “must 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). He fails to meet this standard. As to

the Fourth Amendment claim, Quezada does not point to any portion of the district

court’s decision as either debatable or wrong. Instead, he merely reiterates his

position that the search violated his Fourth Amendment rights because “[t]here was

no nexus between the alleged criminal activity and the search that was conducted.”

Aplt. Br. 3. This repetition does nothing to convince us of any debatable aspect of the

district court’s sound resolution of this constitutional claim. See Slack, 529 U.S.

at 484.

      A liberal reading of Quezada’s brief suggests a slightly stronger argument

related to the two claims stemming from the admission of the fingerprint card. See

Yang, 525 F.3d at 927 n.1. Quezada states, without elaboration, that (1) the informant

was “inconsistent” and “always changing the story”; and (2) “[t]he vehicle

                                           5
[r]egistration presented in trial does not belong to the vehicle in question.” Aplt. Br.

4. Quezada thus appears to challenge the district court’s conclusion that the evidence

against him was overwhelming—a conclusion that was central to the district court’s

resolution of these two constitutional claims.

      But Quezada didn’t raise this challenge in the district court, and we decline to

consider it for the first time on appeal. See United States v. Viera, 674 F.3d 1214,

1220 (10th Cir. 2012). Moreover, even if we were to accept these two evidentiary

allegations, they don’t render debatable the district court’s assessment that the

evidence against Quezada was overwhelming: the quantity of cocaine found in the

truck corroborated the informant’s story, and there was other evidence that Quezada

owned the truck (namely, Quezada admitted the truck was his and “his name was

embroidered on the dashboard”). R. 56; see also Slack, 529 U.S. at 484.

      Accordingly, we deny Quezada’s COA request and dismiss this matter. And

because Quezada hasn’t demonstrated the existence of a reasoned, nonfrivolous

argument on appeal, we also deny his motion to proceed in forma pauperis. See

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




                                            6
