                                                                             FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                        May 1, 2008
                   UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court



 PHILLIP ESPINOZA,

              Petitioner - Appellant,                    No. 07-1428
       v.                                               (D. Colorado)
 AL ESTEP; COLORADO                           (D.C. No. 05-cv-1112-MSK-PAC)
 ATTORNEY GENERAL,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Phillip A. Espinoza, an inmate in the custody of the Colorado Department

of Corrections, requests a certificate of appealability (COA) to challenge the

denial by the United States District Court for the District of Colorado of his

application for relief under 28 U.S.C. § 2254. Because Mr. Espinoza has failed to

make a substantial showing of the denial of a constitutional right, as required by

28 U.S.C. 2253(c)(2), we deny his request for a COA.

I.    BACKGROUND

      Mr. Espinoza was convicted by a jury on January 14, 1994, of distribution

of a controlled substance and of conspiracy to distribute a controlled substance.

He received a life sentence with the possibility of parole after 40 years.
      The key evidence at trial against Mr. Espinoza was a tape recording made

by a confidential informant of the Drug Enforcement Administration (DEA). The

informant, Norma Jean Lopez, was unavailable to testify because she was

murdered a few days after the recording was made. The DEA, which had been

investigating a man named Eugene Velarde, arranged for Lopez to engage in a

controlled purchase of heroin from Velarde through Mr. Espinoza. Agents fitted

Lopez with a radio transmitter and a tape recorder and dropped her off near

Mr. Espinoza’s apartment. Mr. Espinoza’s girlfriend, Kathleen Bugarin,

answered the door, and Lopez asked for Mr. Espinoza, referring to him by his

nickname, “Lipe.” Bugarin told Lopez that he was there and that he had just

awakened. Lopez then said, “Get up, lazy. . . . I need to cop [get some drugs].”

A man responded, asking Lopez how much money she had and what quantity of

drugs she wanted. The man then spoke with someone over the phone and told

Lopez that it would take about 45 minutes for his supplier to deliver the drugs.

While they waited, Lopez audibly counted out the money that she had been given

by the DEA to purchase the drugs.

      According to Lopez’s voice on the recording, when a van owned by

Velarde pulled into the apartment’s parking lot, the man called Lipe had grabbed

the money from Lopez’s hand. DEA agents observed Mr. Espinoza exiting the

apartment, followed by Lopez. The agents then lost sight of Mr. Espinoza but

shortly thereafter saw him returning to the apartment, meeting Lopez on the stairs

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to the apartment. As they entered the apartment, Lopez insisted that she had

wanted to see “Gene.” The man said that Gene was in a hurry and would call her

later. Lopez then left the apartment and turned over heroin to the DEA agents.

Bugarin later testified at trial that Lopez had visited the apartment that day, that

Mr. Espinoza had been there, that he had made a phone call in Lopez’s presence,

and that both he and Lopez had left and returned to the apartment.

      After the jury convicted him, Mr. Espinoza appealed to the Colorado Court

of Appeals, which affirmed his conviction. People v. Espinoza, No. 94CA0453

(Colo. Ct. App., Feb. 15, 1996) (Espinoza I), cert. denied, No. 96SC158 (Colo.,

Sept. 3, 1996). Mr. Espinoza, assisted by counsel, then moved for postconviction

relief under Colorado Rule of Criminal Procedure 35(c). This motion was denied,

and the denial was affirmed by the Colorado Court of Appeals, People v.

Espinoza, No. 01CA1909 (Colo. Ct. App., Nov. 29, 2002), cert. denied, 2003 WL

1958679 (Colo., Apr. 28, 2003). Mr. Espinoza, acting pro se, then filed a second

motion for postconviction relief, whose denial was also affirmed by the Colorado

Court of Appeals, People v. Espinoza, No. 03CA1588 (Colo. Ct. App., Dec. 9,

1994). The Colorado Supreme Court denied certiorari on April 18, 2005.

Espinoza v. People, 2005 WL 878591 (Colo., Apr. 18, 2005).

      On June 6, 2005, Mr. Espinoza timely commenced an application for relief

under 28 U.S.C. § 2254, asserting 12 grounds for relief. The magistrate judge to

whom the case was referred recommended that seven of the claims be denied as

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procedurally defaulted and that the other claims be denied as without merit.

Mr. Espinoza filed objections to the report and recommendation. The district

court rejected Mr. Espinoza’s arguments and denied the application. The court

also denied (1) Mr. Espinoza’s motion to stay the § 2254 proceedings so that he

could exhaust certain of his claims before the state courts, and (2) his motion for

the appointment of counsel.

      Mr. Espinoza’s application requests a COA on seven issues. He argues that

the district court (1) should have appointed counsel to represent him in his § 2254

application, (2) should have stayed his § 2254 proceedings to give him an

opportunity to exhaust certain of his claims in state court, (3) should have granted

him relief on his ineffective-assistance-of-counsel claim regarding his trial

counsel, (4) should have granted him relief on his ineffective-assistance-of-

counsel claim regarding his postconviction counsel, (5) should have granted him

relief on his objections to the admission at trial of the taped conversations with

Norma Jean Lopez, (6) should have granted him relief on his objections to

evidence at trial of prior drug deals, and (7) should have granted him relief on his

claim that there was insufficient evidence to convict him.

II.   DISCUSSION

      A COA may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This “substantial

showing” requires that the applicant demonstrate that “reasonable jurists could

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debate whether . . . the petition should have been resolved [by the district court]

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)

(internal quotation marks omitted).

      A.     Appointment of Counsel

      We lack jurisdiction under § 2254 to grant a COA on Mr. Espinoza’s

argument that the district court should have appointed counsel for him. It is true

that a district court has discretion to appoint counsel, see id., and that an applicant

has a federal statutory right to counsel if an evidentiary hearing is required, see

Rule 8(c) of the Rules Governing Section 2254 Cases. But, as Mr. Espinoza

acknowledges, there is no constitutional right to assistance of counsel in pursuit

of habeas relief. See Swazo v. Wyo. Dept. of Corrs. State Penitentiary Warden,

23 F.3d 332, 333 (10th Cir. 1994). And § 2253(c)(2) restricts the issuance of

COAs to violations of the federal constitution.

      B.     Stay of Application

      Mr. Espinoza next argues that the district court should have granted his

request to stay his § 2254 proceedings so that he could return to state court to

present certain claims that may not have been exhausted. The court denied this

motion on the ground that Mr. Espinoza’s unexhausted claims were then time-

barred in Colorado courts, so a stay would be futile. In Colorado, postconviction

challenges with respect to felonies (other than class 1 felonies) must be brought

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within three years after the conclusion of the direct appeal, a date long since

passed in Mr. Espinoza’s case. See Colo. Rev. Stat. § 16-5-402; People v.

Hampton, 876 P.2d 1236, 1241 (Colo. 1994). Mr. Espinoza contends that a recent

Colorado Supreme Court decision, Silva v. People, 156 P.3d 1164 (Colo. 2007)

(en banc), permits him to raise his unexhausted claims in state court even though

the statutory time period for postconviction challenges has expired. We agree

with the district court that Silva offers Mr. Espinoza no such opportunity.

      In Silva the Colorado Court of Appeals had affirmed the denial of Silva’s

first postconviction motion three weeks after the statutory time period for filing

postconviction challenges had expired. 156 P.3d at 1166–67. Two weeks after

that affirmance Silva brought a second postconviction motion, raising, among

others, a claim of ineffective assistance of postconviction counsel. Id. at 1166.

The Colorado Court of Appeals held that this claim was not time-barred because

Silva could establish “justifiable excuse or excusable neglect” for raising the

issue after the statutory time period, as the issue of postconviction ineffective

assistance of counsel could not have been raised before the court’s order in

Silva’s first postconviction motion. Id. at 1166–67. Nevertheless, the court held

that Silva’s claim failed because there was no right to effective assistance of

postconviction counsel. Id. The Colorado Supreme Court reversed the court of

appeals on this last issue, holding that there is a limited statutory right to counsel

in state postconviction proceedings. Id. at 1167.

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      Mr. Espinoza claims that Silva permits him to present new issues now

because his failure to present them earlier was a result of his postconviction

counsel’s refusal to do so. He is allowed to bring these claims, he argues, if he

alleges ineffective assistance of postconviction counsel. But even if we assume

that Colorado’s limited statutory right to postconviction counsel extends to

Mr. Espinoza, nothing in Silva suggests that the Colorado courts would be willing

to hear his new claims today. Mr. Espinoza already raised the issue of ineffective

assistance of postconviction counsel before the Colorado courts, in his second

postconviction proceeding. The court of appeals affirmed the denial of this claim

because it was conclusory, not because it was time-barred or because

Mr. Espinoza had no right to postconviction counsel. Silva hardly indicates that

the Colorado courts will entertain a late motion on an issue already decided. It

was therefore reasonable for the district court to decline to stay Mr. Espinoza’s

§ 2254 proceedings.

      C.     Ineffective Assistance of Trial Counsel

      In his § 2254 application Mr. Espinoza claims that “none” of his counsel

challenged his arrest and indictment for lack of probable cause. R. Doc. 5 at 6e.

To the extent that this claim refers to his trial counsel, the district court found

that this claim was unexhausted, because Mr. Espinoza, in his first state

postconviction petition, had challenged his trial counsel’s performance only on

grounds unrelated to his current claims. Even if Mr. Espinoza could show cause

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for not exhausting the issue, the court held, he could not show prejudice because

the claim had no merit. In his request for a COA Mr. Espinoza does not attempt

to refute the district court’s conclusion that the claim is unexhausted and

concedes that he cannot show prejudice regarding his claims of unlawful arrest

and detention. He does argue that he was prejudiced by trial counsel’s failure to

object to the admission of the tape recording on the ground that it violated

Title III of the Omnibus Crime Control and Safe Streets Act of 1968. But

Mr. Espinoza did not present this argument to the district court, so we will not

consider it here. See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th

Cir. 1992).

      D.      Ineffective Assistance of Postconviction Counsel

      The Supreme Court has held that there is no constitutional right to counsel

in state postconviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555,

(1987). In Finley the Court stated: “Our cases establish that the right to

appointed counsel extends to the first appeal of right, and no further.” Id.

Mr. Espinoza argued in district court that a claim in a postconviction proceeding

of ineffective assistance of trial counsel should be viewed as an appeal of right,

because the postconviction proceeding is the first opportunity in Colorado to

argue ineffective assistance of trial counsel. Given that there is a constitutional

right to the effective assistance of counsel on an appeal of right, see Evitts v.

Lucey, 469 U.S. 387, 396 (1985), he argues that there is a constitutional right to

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postconviction counsel, at least for the limited purpose of arguing the ineffective

assistance of trial counsel. And in his COA application Mr. Espinoza further

argues that a limited state right to effective assistance of postconviction counsel,

as in Colorado, creates an interest that cannot be denied without violating the Due

Process Clause of the Fourteenth Amendment. We are not at liberty to consider

these arguments, however, because § 2254(I) expressly provides that “[t]he

ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief.” Mr. Espinoza’s

challenge clearly falls within the prohibition of the statute, and he has not

challenged the constitutionality of § 2254(I)

      E.     Residual Hearsay

      On direct appeal Mr. Espinoza asserted that his rights under the

Confrontation Clause of the Sixth Amendment were violated by the admission of

hearsay statements on the tape recording. The Colorado Court of Appeals

rejected this argument, holding that the statements were sufficiently reliable that

they did not violate Mr. Espinoza’s rights under the Confrontation Clause. See

Espinoza I at 10.

      Under § 2254, relief may not be granted with respect to any issue

adjudicated on the merits in state court unless that adjudication “was contrary to,

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

determined by the Supreme Court of the United States” or “was based on an

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unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A habeas court considers

the state of constitutional law at the time that the applicant’s conviction became

final. See Williams v. Taylor, 529 U.S. 362, 380 (2000). The Colorado Supreme

Court denied certiorari on Mr. Espinoza’s direct appeal on September 3, 1996, so

his conviction became final when his time to seek certiorari from the United

States Supreme Court expired 90 days later. See Allen v. Reed, 427 F.3d 767, 774

(10th Cir. 2005). At that time the admission of hearsay testimony did not violate

the Confrontation Clause if the statement fell within a “‘firmly rooted’” hearsay

exception, or if the statement was supported by “‘particularized guarantees of

trustworthiness.’” Stevens v Ortiz, 465 F.3d 1229, 1236 (10th Cir. 2006) (quoting

Ohio v. Roberts, 448 U.S. 56, 66 (1980)).

      In this case the Colorado Court of Appeals relied upon “particularized

guarantees of trustworthiness” to conclude that the hearsay statements did not

violate Mr. Espinoza’s rights under the Confrontation Clause. Specifically, the

court found that if Lopez’s assertions—for instance, that the person she was

talking to was “Lipe,” that she was counting out $300 for the purchase, or that the

man on the recording snatched the money from her hand—had been inaccurate,

other people present were in a position to correct her and likely would have done

so. The Supreme Court stated in Idaho v. Wright, 497 U.S. 805, 822 (1990), that

“courts have considerable leeway in their consideration of appropriate factors” in

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determining whether a statement bears the necessary guarantees of

trustworthiness. We agree with the district court that the Colorado court’s

reliance on the presence of others likely to contradict Lopez was not contrary to

and did not involve an unreasonable application of clearly established federal law,

and Mr. Espinoza has not pointed to any specific hearsay statement not supported

by this rationale. Nor is this determination of trustworthiness undermined, as

Mr. Espinoza argues, by any personal interest that Lopez may have had in making

the tapes appear to reflect a successful drug transaction; as the Colorado Court of

Appeals stated, see Espinoza I at 9, the likelihood that other persons would

correct Lopez is unrelated to Lopez’s motives for cooperating with the DEA.

      F.     Statement about Prior Drug Transactions

      At trial Mr. Espinoza objected to the introduction of a statement by a DEA

agent that Lopez had told them that she had bought heroin from Mr. Espinoza in

the past. The trial court admitted the testimony for the purpose of explaining

what had prompted the investigation, and it instructed the jury to consider the

statement for that purpose only, not for the truth of the assertion. On direct

appeal the Colorado Court of Appeals affirmed the trial court’s ruling. See id. at

10–11.

      Mr. Espinoza argues that the admission of the statement was in error

because (1) it was hearsay and (2) it was more prejudicial than probative.

Although the statement would have been hearsay had it been admitted for the

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truth of the matter asserted, the trial court did not admit the statement for that

purpose and gave the jury a limiting instruction to that effect. Whether evidence

was incorrectly admitted as a matter of state law is “no part of a federal court's

habeas review of a state conviction.” Estelle v. McGuire, 502 U.S. 62, 67 (1991).

Instead, we review only whether, “considered in light of the entire record, its

admission resulted in a fundamentally unfair trial.” Knighton v. Mullin, 293 F.3d

1165, 1171 (10th Cir. 2002). Mr. Espinoza has not made this showing. We

presume that a jury will follow a limiting instruction, see United States v. Eads,

191 F.3d 1206, 1209 (10th Cir. 1999), and Mr. Espinoza has not explained how

that presumption was rebutted here, merely asserting that after the statement

about prior drug transactions, it was “a foregone conclusion” that the jury would

convict him. No reasonable jurist would debate the district court’s ruling that the

statement did not deny Mr. Espinoza a fair trial.

      G.     Sufficiency of the Evidence

      Mr. Espinoza challenged the sufficiency of the evidence on direct appeal,

arguing that the identity of the voice on the tape was never established and that

the rest of the evidence was circumstantial. The Colorado Court of Appeals

concluded that the evidence was sufficient to establish that the voice was that of

Mr. Espinoza and that reasonable jurors could draw inferences to establish all the

elements of the crime. See Espinoza I at 11–12. The standard for whether

evidence supporting a conviction is constitutionally sufficient is “whether, after

                                          -12-
viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Given the

contents of the recording (e.g., Lopez asking for “Lipe” and being told he was at

home), Bugarin’s testimony that a conversation between Mr. Espinoza and Lopez

took place that morning, and the testimony from DEA agents that they saw

Mr. Espinoza leaving from and returning to the apartment during the tape

recording, it is clear that the decision of the Colorado Court of Appeals was not

“contrary to, [nor did it] involve[] an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,” nor was it “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)(1)-

(2).

III.   CONCLUSION

       Mr. Espinoza has not made a substantial showing of the denial of a

constitutional right because “reasonable jurists” could not “find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack, 529

U.S. at 484. We therefore DENY his application for a COA. His request to




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proceed in forma pauperis is GRANTED.

                                  ENTERED FOR THE COURT


                                  Harris L Hartz
                                  Circuit Judge




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