                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                  November 5, 2010
                                 TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                     Clerk of Court

 NORMAN GARCIA,

       Petitioner - Appellant,
                                                        No. 10-1356
 v.                                           (D.C. No. 1:07-CV-02514-MSK)
                                                         (D. Colo.)
 FRED FIGUEROA; JOHN SUTHERS,
 The Attorney General of the State of
 Colorado,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Petitioner-Appellant Norman Garcia, a state inmate appearing pro se, seeks

a certificate of appealability (“COA”) allowing him to appeal the district court’s

denial of his application for a writ of habeas corpus. 28 U.S.C. § 2253; 28 U.S.C.

§ 2254. For this court to issue a COA on a habeas claim denied on the merits,

Mr. Garcia must make a “substantial showing of the denial of a constitutional

right,” 28 U.S.C. § 2253(c)(2), which requires him to 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). For a

habeas claim denied on procedural grounds, Mr. Garcia must show “that jurists of
reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and . . . whether the district court was correct in its

procedural ruling.” Id. Because we conclude that Mr. Garcia has failed to make

a “substantial showing of the denial of a constitutional right,” we deny a COA

and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

      In 2004, Mr. Garcia was convicted of six counts involving sexual assault on

a child, and was sentenced to concurrent terms, the longest of which was 24 years

to life, and lifetime parole. 1 R. 5. The Colorado Court of Appeals affirmed his

conviction on direct appeal. Id., 89 (People v. Garcia, No. 04CA1606 (Colo. Ct.

App. Oct. 26, 2006)). He sought rehearing which was denied on July 19, 2007,

with the mandate issuing on September 5, 2007. Id., 113, 115. The instant

application was filed December 3, 2007.

        The federal district court denied Mr. Garcia’s application on alternative

bases, one procedural and one substantive. The district court first held that Mr.

Garcia had failed to exhaust his state remedies by not seeking certiorari from the

Colorado Supreme Court and was procedurally barred from correcting this failure.

See Garcia v. Figueroa, 2010 WL 2692172, at *4-*6 (D. Colo. July 6, 2010). On

the merits, the district court held that the Colorado Court of Appeals’ decision

correctly affirmed the denial of Mr. Garcia’s Miranda claim. Id. at *4, *6-*9.

We have yet to rule on the effect of Colo. R. App. P. 51.1(a) which obviates the

need to seek certiorari, see Mitchell v. Watkins, 252 F. App’x 874, 877 (10th Cir.

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Oct. 25, 2007) (unpublished). We need not do so in this case, and instead deny a

COA on the merits.

      Mr. Garcia’s Miranda claim is governed by a deferential standard of

review. Federal courts may grant state prisoners’ habeas petitions only if the

State court proceedings:

      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or (2)
      resulted in a decision that was 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); see T. Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

Additionally, state court findings of fact are presumed correct; a defendant has

the burden of rebutting the presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

        As the state court recognized, Miranda warnings are required only when a

suspect is subjected to “custodial interrogation.” See Miranda v. Arizona, 384

U.S. 436, 444 (1966). A suspect is in “custody” if, under the totality of the

circumstances, someone in the suspect’s position “would reasonably believe her

freedom of action had been curtailed to a ‘degree associated with a formal

arrest.’” United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (quoting

California v. Beheler, 463 U.S. 1121, 1125 (1983)). Courts consider several

factors in making this determination: whether the suspect was made aware that he


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could decline to answer questions; the nature of the questioning, particularly its

length; and whether the interview took place in a “police dominated atmosphere.”

Id. at 1528-19.

      In this case, the facts relied upon by the Colorado courts support a finding

that Mr. Garcia was not in custody. Mr. Garcia was made aware that he could

decline to answer questions, 1 R. 91; the questioning lasted approximately two

hours, and at one point Mr. Garcia asked the detective to stay and complete the

interview, id., 92; and the interview took place in a social services building with a

plainclothes detective who did not brandish a weapon or otherwise assert his law-

enforcement authority. Id., 92, 94. Although (1) a police officer issued Mr.

Garcia a “Notice to Appear” at his residence the day before the questioning,

which may have led Mr. Garcia to believe that he was going to be arrested, and

(2) Mr. Garcia was told that he did not need an attorney, these factors are part of

the “totality of the circumstances” courts must examine to determine whether

Miranda warnings are necessary. Griffin, 7 F.3d at 1518 (citation omitted).

      The Colorado Court of Appeals identified appropriate factors supporting

the state trial court’s conclusion that Mr. Garcia was not in custody. 1 R. 94. It

noted that the questioning occurred at a social services center, Mr. Garcia was

told at the beginning of the interview that he was not required to answer any

questions, he was not restrained, and the detective made no threats, but spoke to

Mr. Garcia calmly. Id., 95. Given the deferential standard of review, no

                                         -4-
reasonable jurist could conclude that federal district court’s assessment of Mr.

Garcia’s habeas petition was wrong.

      Accordingly, we DENY Mr. Garcia’s request for a COA, DENY IFP, and

DISMISS his appeal.

                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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