                                                                                       FILED
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                 March 23, 2015
                                    TENTH CIRCUIT
                                                                               Elisabeth A. Shumaker
                                                                                   Clerk of Court
 ANTHONY MARQUEZ,

               Petitioner - Appellant,

 v.                                                               No. 15-1009
                                                        (D.C. No. 1:14-CV-01313-WJM)
 RICK LINE, Warden, Arkansas Valley                              (D. Colorado)
 Correctional Facility; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

               Respondents - Appellees.


                                 ORDER DENYING
                          CERTIFICATE OF APPEALABILITY *


Before KELLY, LUCERO and McHUGH, Circuit Judges.



       Petitioner Anthony Marquez, a Colorado prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the district court’s denial of his request for




       *
       This order is not binding precedent, except under the doctrines of law of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.
habeas relief under 28 U.S.C. § 2254. We deny the petition for COA and dismiss the

appeal.

       Mr. Marquez was charged with theft, which he carried out by convincing a

seventy-six-year-old man to give him approximately $70,000 over a three-month period

in 2005. Mr. Marquez told the victim, Richard Collins, that he needed the money to pay

his mother’s hospital bills. In fact, Mr. Marquez’s mother was not hospitalized. After

investigating complaints made by employees at the victim’s bank, police obtained a

warrant for Mr. Marquez’s arrest. As police were executing the arrest warrant, they

discovered 195 grams of crack cocaine, nearly $9,000 in cash, and drug paraphernalia. A

Colorado jury convicted Mr. Marquez on two counts: (1) third-degree theft and (2)

possession of a controlled substance with intent to distribute.1 Mr. Marquez seeks relief

pursuant to 28 U.S.C. § 2254 on the ground the evidence introduced at trial was

insufficient to support his convictions.2




       1
         The jury originally convicted Mr. Marquez on four counts: (1) theft, (2) theft
from an at-risk victim, (3) possession of a controlled substance, and (4) possession of a
controlled substance with intent to distribute. On direct appeal, the Colorado Court of
Appeals merged the two theft convictions into a single conviction of third-degree theft
and merged the two drug convictions into a single conviction for possession with intent to
distribute. Thus, Mr. Marquez’s remaining convictions are for third-degree theft and
possession with intent to distribute.
       2
        In the district court, Mr. Marquez brought five claims for relief. The district court
determined four of the claims were procedurally barred or moot. Mr. Marquez has not
appealed these claims, and we do not discuss them further.

                                                -2-
                                      A. Legal Standard

       This court will issue a COA “only if the [petitioner] has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Further, a writ of

habeas corpus will not issue on any claim adjudicated on the merits by a state court

       unless the adjudication of the claim —

       (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).

       Under § 2254(d)(1), the threshold question is whether Mr. Marquez “seeks to

apply a rule of law that was clearly established at the time his state-court conviction

became final.” Williams v. Taylor, 529 U.S. 362, 390 (2000). If a clearly established rule

of federal law is implicated, Mr. Marquez must also demonstrate that the Colorado

court’s decision “was contrary to, or involved an unreasonable application of,” that

clearly established rule. 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 391.

Further, a state court’s factual findings “shall be presumed to be correct” and the

petitioner “shall have the burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

       Mr. Marquez argues his state conviction violates the principle established by the

Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme
                                                -3-
Court held “that a state prisoner who alleges that the evidence in support of his state

conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to

find guilt beyond a reasonable doubt has stated a federal constitutional claim.” Id. at 321.

Accordingly, the Court held “that in a challenge to a state criminal conviction brought

under 28 U.S.C. § 2254 . . . the applicant is entitled to habeas corpus relief if it is found

that upon the record evidence adduced at the trial no rational trier of fact could have

found proof of guilt beyond a reasonable doubt.” Id. at 324. In carrying out this analysis,

“the factfinder’s role as weigher of the evidence is preserved through a legal conclusion

that upon judicial review all of the evidence is to be considered in the light most

favorable to the prosecution.” Id. at 319. To the extent a sufficiency claim relies on an

interpretation of state law, “a state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court sitting in

habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Estelle v. McGuire,

502 U.S. 62, 67–68 (1991) (“Today, we reemphasize that it is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”).

                        B. Application to Mr. Marquez’s Convictions

       In his § 2254 petition, Mr. Marquez argues the evidence adduced at his Colorado

trial was insufficient to sustain his convictions for third-degree theft and possession with

intent to distribute. We address each conviction in turn.




                                                 -4-
       1. Mr. Marquez’s Third-Degree Theft Conviction

       Under Colorado law in effect at the time of Mr. Marquez’s conviction, “[a] person

commits theft when he knowingly obtains or exercises control over anything of value of

another without authorization, or by . . . deception, and . . . [i]ntends to deprive the other

person permanently of the use or benefit of the thing of value.” Colo. Rev. Stat.

§ 18-4-401(1)(a) (2007); see also People v. Marquez, No. 06CA1701, at 2-3 (Colo. App.

Mar. 18, 2010) (unpublished) (quoting Colorado Revised Statutes § 18-4-401(1)(a)). The

penalty provision in effect at the time classified the theft of property worth $15,000 or

more as a class three felony. Thus, Colorado was required to demonstrate that

Mr. Marquez knowingly obtained control of the victim’s property—valued at $15,000 or

more—by deception and intended to permanently deprive the victim of that property.

       Mr. Marquez argues the evidence was insufficient to convict him because, on one

occasion, Mr. Marquez returned to Mr. Collins money Mr. Marquez had briefly

possessed. According to Mr. Marquez, his return of the money proves he did not intend to

permanently deprive Mr. Collins of the property. We disagree.

       Mr. Marquez’s argument ignores the substantial evidence introduced at trial that

demonstrated his intent to deprive Mr. Collins of substantial sums of money through

deception. It is undisputed that Mr. Collins withdrew approximately $70,000 in cash from

his bank account over a three-month period. He told bank employees and the police on

several occasions that he was withdrawing the cash to give to a friend so the friend could

pay his mother’s hospital bills. Mr. Collins identified Mr. Marquez as the friend to whom
                                                 -5-
he had given all of the money. Bank employees testified that Mr. Marquez accompanied

Mr. Collins to the bank on one occasion, at which time Mr. Marquez claimed, falsely,

that Mr. Collins was his father. And though Mr. Marquez did return Mr. Collins’s money

on that occasion, he did so only after bank employees informed Mr. Marquez that they

had called the police and ordered him to return the money. Finally, Mr. Marquez’s

mother testified at trial that she had never been hospitalized and that Mr. Marquez had

never given her any money for medical bills.3

       Based on these facts, the Colorado Court of Appeals determined Mr. Marquez’s

conviction for theft was supported by sufficient evidence. And we cannot say on this

record that “no rational trier of fact could have found proof of guilt beyond a reasonable

doubt.” See Jackson, 443 U.S. at 324. The jury could reasonably infer from the testimony

adduced at trial that Mr. Marquez lied to Mr. Collins—who was a vulnerable adult—in

order to induce him to withdraw over $70,000 and to give that money permanently to



       3
         Mr. Marquez also argues Mr. Collins’s testimony was unreliable because Mr.
Collins was unable to identify Mr. Marquez in court and was confused as to why he had
withdrawn such substantial amounts. But the jury was aware of Mr. Collins’s inability to
identify Mr. Marquez and of his confusion on the stand. And Mr. Collins had previously
identified Mr. Marquez as the friend to whom he had given the money. Moreover, bank
employees identified Mr. Marquez as the man who had accompanied Mr. Collins to the
bank on a previous occasion. The jury was entitled to rely on Mr. Collins’s earlier
identification, as well as the identification made by the bank employees.
        Additionally, Mr. Collins’s confusion on the stand likely emphasized for the jury
his vulnerable status. Rather than undermining the sufficiency of the evidence used to
convict Mr. Marquez, Mr. Collins’s vulnerability merely highlighted Mr. Collins’s
mental health issues, which caused Mr. Marquez’s scheme to be successful.

                                                -6-
Mr. Marquez. Because Mr. Marquez has not met his burden of demonstrating the

Colorado court’s holding was an unreasonable application of the Supreme Court’s

precedent in Jackson, we deny Mr. Marquez’s request for a COA on this claim.

       2. Mr. Marquez’s Possession with Intent to Distribute Conviction

       In Colorado, “it is unlawful for any person knowingly to . . . possess, or to possess

with intent to . . . distribute a controlled substance.” Colo. Rev. Stat. § 18-18-405(1)(a)

(2007). Moreover, defendants are subject to mandatory minimum sentences for

possession of cocaine weighing “[a]t least twenty-five grams . . . but less than four

hundred fifty grams.” Id. § 18-18-405(2)(a)(I)(A), (3)(a)(I); id. § 18-18-204(2)(a)(IV)

(defining cocaine as a schedule II controlled substance under Colorado law).

       After law enforcement officers obtained a warrant for Mr. Marquez’s arrest, they

located him outside his girlfriend’s apartment. As officers approached the apartment, they

spotted Mr. Marquez wearing distinctive black pants with red stripes. Upon seeing the

officers, Mr. Marquez ran back inside the apartment, where he changed his pants. He then

attempted to flee, but was quickly apprehended. An investigator searched the apartment

and found the black and red pants on the floor of a bedroom. Upon searching the pockets

of the pants, the investigator found more than 195 grams of crack cocaine and almost

$9,000 in cash. Officers also discovered a digital scale and other drug paraphernalia in

the apartment.

       Mr. Marquez argues this evidence was insufficient to support his conviction on the

“possession” element and the “intent to distribute” element. Specifically, Mr. Marquez
                                                 -7-
argues the government cannot show he possessed the drugs found in the pants because he

was not wearing the pants at the time the drugs were discovered and other adults in the

apartment had access to the pants. Further, Mr. Marquez argues there was no evidence of

an intent to distribute the cocaine.

       To prove the “possession” element of possession with intent to distribute in

Colorado, the prosecution must demonstrate the defendant “had knowledge that he was in

possession of a narcotic drug and that he knowingly intended to possess the drug.”

People v. Baca, 109 P.3d 1005, 1007 (Colo. App. 2004). But the prosecution is allowed

to prove these elements by circumstantial evidence. People v. Robinson, 226 P.3d 1145,

1154 (Colo. App. 2009). “The drug need not be found on the person of the defendant, as

long as it is found in a place under his or her dominion and control.” Id. But when drugs

are found in circumstances in which multiple people could be possible possessors, a jury

may not infer the defendant possessed the drugs “unless there are statements or other

circumstances tending to buttress the inference of possession.” Id. (internal quotation

marks omitted).

       In this case, officers observed Mr. Marquez wearing distinctive black pants with

red stripes. Mr. Marquez ran when he saw the officers approaching and changed into

different pants. Officers discovered 195 grams of crack cocaine and nearly $9,000 in cash

in the pocket of the pants Mr. Marquez was observed wearing only moments prior to the

search. Officers also discovered a digital scale and drug paraphernalia in the apartment.

From this evidence the jury could reasonably infer Mr. Marquez had knowledge of the
                                                -8-
crack cocaine and cash in his pockets and intended to evade discovery of those items by

changing his pants. These circumstances tend “to buttress the inference of possession”

sufficiently to allow the jury to infer Mr. Marquez—and not one of the other adults in the

apartment—possessed the 195 grams of cocaine.

       As to the “intent to distribute” element, Colorado courts have established a variety

of factors—including the quantity of narcotics found, whether the defendant had

substantial amounts of cash, and whether other drug paraphernalia were present—that

indicate an intent to distribute. See People v. Atencio, 140 P.3d 73, 76 (Colo. App. 2005)

(holding that 109 grams of packaged cocaine and methamphetamine sufficient to show

intent to distribute); People v. Trusty, 53 P.3d 668, 672, 678 (Colo. App. 2001) (holding

that presence of 50–100 rocks of crack cocaine, $600 in cash, and a pager were sufficient

to demonstrate intent to distribute). In this case, officers found a substantial amount of

drugs and cash in Mr. Marquez’s pants. Moreover, a digital scale and other drug

paraphernalia were found in the apartment. On these facts and viewing the evidence in

the light most favorable to the jury’s verdict, we cannot say that no reasonable jury could

conclude Mr. Marquez possessed the cocaine with intent to distribute. Accordingly, we

deny Mr. Marquez’s request for a COA on this claim.

       To conclude, Mr. Marquez has not demonstrated the Colorado Court of Appeals

unreasonably applied the Supreme Court’s precedent in Jackson. The Colorado court

applied the proper legal standard and, based on its factual findings, concluded the

evidence was sufficient to support a conviction. We presume these factual findings are
                                                -9-
correct unless rebutted by clear and convincing evidence. Mr. Marquez has not made

such a showing. Viewing the evidence in the light most favorable to the prosecution,

Mr. Marquez has failed to demonstrate his entitlement to habeas relief.

      We DENY Mr. Marquez’s request for COA and DISMISS this appeal. Finally, we

GRANT Mr. Marquez’s request to proceed in forma pauperis.

                                                ENTERED FOR THE COURT


                                                Carolyn B. McHugh
                                                Circuit Judge




                                              -10-
