                                                                                    FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              August 28, 2017
                                      TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                               Clerk of Court

 ABRAHAM HAGOS,

           Petitioner - Appellant,
 v.                                                               No. 17-1076
                                                        (D.C. No. 1:13-CV-02375-RPM)
 RICK RAEMISCH, Executive Director,                                (D. Colo.)
 Colorado Department of Corrections;
 JAMES FALK, Warden, Sterling
 Correctional Facility; CYNTHIA H.
 COFFMAN, Attorney General of the State
 of Colorado,

           Respondents - Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, HARTZ, and BACHARACH, Circuit Judges.


       Abraham Hagos, a Colorado state prisoner, seeks a certificate of appealability

(COA) in order to challenge the district court’s order dismissing his petition for writ of

habeas corpus under 28 U.S.C. § 2254. Because Hagos has failed to satisfy the standard

for issuance of a COA, we deny his request and dismiss this matter.

                                                 I



       *
         This order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
         The underlying facts of Hagos’s case were summarized by the Colorado Supreme

Court:

                Abraham Hagos and another man distributed drugs from an
         apartment. A buyer broke into the apartment and took a safe containing
         cash and drugs. In retaliation, Hagos and others kidnapped and assaulted
         the buyer’s brother.

Hagos v. People, 288 P.3d 116, 117 (Colo. 2012).

         Hagos was subsequently arrested and convicted in Colorado state court of first

degree kidnapping, first degree burglary, felony menacing, and conspiracy to commit

second degree kidnapping, first degree burglary, and felony menacing. Hagos was

sentenced to life in prison for these convictions.1

         Hagos exhausted his state court remedies, first filing an unsuccessful direct appeal,

and then filing an unsuccessful motion for state postconviction relief.

         On September 3, 2013, Hagos initiated these federal proceedings by filing an

application for writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting eight claims

for relief. The district court denied the petition on the merits on January 25, 2017. The

district court also denied Hagos a COA.

                                               II

         Hagos now seeks a COA from this court in order to appeal the district court’s

ruling on two of the claims raised in his habeas petition. See 28 U.S.C. § 2253(c)(1)(A).

         1
         In a separate criminal case, Hagos was convicted of first degree murder,
attempted first degree murder, conspiracy to commit first degree murder, and two counts
of retaliation against a witness, and was sentenced to life imprisonment. The two life
sentences are to be served consecutively.

                                              -2-
To obtain a COA, he must make “a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). A substantial showing means 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). Where, as here, the district court rejected the constitutional claims in the habeas

petition on the merits, the petitioner must demonstrate “that reasonable jurists would find

the district court’s assessment of the constitutional claims debatable or wrong.” Id.

                             Erroneous kidnapping instruction

       Hagos seeks a COA on an instructional error committed by the state trial court.

The Colorado Supreme Court succinctly outlined the nature of this claim:

       At trial, the [state] trial court instructed the jury, “[t]he elements of the
       crime of First Degree Kidnapping are: (1) That the Defendant, . . . (3)
       forcibly, or otherwise, seized and carried any person from one place to
       another.” (Emphasis added). Hagos did not object to this instruction. The
       jury returned guilty verdicts for first degree kidnapping; first degree
       burglary; felony menacing; and conspiracy to commit second degree
       kidnapping, first degree burglary, and felony menacing.

              Hagos appealed and the [Colorado] court of appeals affirmed.
       Among other claims, Hagos asserted that the trial court committed plain
       error by including the words “or otherwise” in its instruction on first degree
       kidnapping. The [Colorado] court of appeals concluded that the instruction
       was erroneous, but the error did not constitute plain error because it did not
       so undermine the fundamental fairness of the trial as to cast serious doubt
       on the reliability of the conviction. The court of appeals reached this
       conclusion because it determined that the record contained overwhelming
       and undisputed evidence that the kidnapping occurred by force.

Hagos v. People, 288 P.3d 116, 117 (Colo. 2012).

                                             -3-
       “Hagos then filed a [Colo. R.] Crim. P. 35(c) postconviction motion in the [state]

trial court” asserting “that his trial counsel had provided ineffective assistance by failing

to object to the erroneous [kidnapping] instruction.” Id. The state trial court denied

Hagos’s motion. The Colorado Court of Appeals and, in turn, the Colorado Supreme

Court affirmed the denial of relief. In doing so, the Colorado Supreme Court concluded,

in pertinent part, that Hagos was not prejudiced by counsel’s purported error in failing to

object to the erroneous jury instruction:

       Hagos failed to establish any prejudice resulting from the erroneous jury
       instruction. It was never disputed that the victim was in fact “forcibly”
       seized and carried: the victim was beaten, handcuffed, and taken to a car at
       gunpoint. Hagos argued at trial that he lacked the mens rea required for a
       guilty verdict because he was merely present to ensure that the victim was
       not seriously injured. The jury rejected Hagos’s theory. Therefore, the
       language “or otherwise” included in the kidnapping instruction had no
       effect on the judgment of conviction, and Hagos’s [Colo. R.] Crim. P. 35(c)
       claim inevitably fails.

               Thus, the jury instruction, though erroneous, had no effect on the
       judgment of conviction. Consequently, Hagos’s claim for ineffective
       assistance of counsel fails through a separate, fact-specific analysis pursuant
       to Strickland.

Id. at 122.

       In his federal habeas petition, Hagos reasserted his claim that the state trial court

violated his constitutional rights by erroneously instructing the jury on the kidnapping

charge. The district court rejected the claim on the merits, concluding that the Colorado

Court of Appeals’ rejection of the same claim was neither contrary to, nor an

unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).


                                              -4-
The district court explained:

               There was admitted error in the trial court’s jury instruction on the
       elements of first-degree kidnapping by inserting the words “or otherwise”
       as an alternative to the requirement of the use of force in the asportation of
       the victim from his residence. Admitting this was constitutional error the
       Colorado Court of Appeals applied a plain error standard of review because
       defendant’s counsel did not object to the instruction. Reciting the evidence
       and finding it “overwhelming” the appellate court concluded that the
       inserted language “did not so undermine the fundamental fairness of the
       trial as to cast serious doubt on the reliability of the conviction.” People v.
       Hagos, Case No. 03CA0315, Slip Opinion at 7.

               The court did not expressly state whether the constitutional error was
       a violation of the due process clause or the Sixth Amendment, but it did
       reject the argument now made that it was a structural error requiring
       reversal. Under the deferential standard of review [outlined in §
       2254(d)(1)] this court cannot fault the decision.

ROA, Vol. 2 at 55.

       We cannot say, after examining the materials submitted by Hagos, that reasonable

jurists could find the district court’s assessment of this claim wrong or even debatable.

Consequently, we conclude that Hagos is not entitled to a COA on this claim.

                                    Complicitor liability

       Hagos also seeks a COA on a claim that arose out of the state trial court’s response

to a question from the jury during deliberations. At trial, the State proceeded on

alternative theories of criminal liability; specifically, the State alleged that Hagos was

criminally liable as a principal, a conspirator, and as an accomplice. During Hagos’s trial,

the state trial court gave the jury the following instruction regarding complicitor liability:

       A person is guilty of an offense committed by another person if he is a
       complicitor. To be guilty as a complicitor, the following must be

                                              -5-
          established beyond a reasonable doubt:

          1.     A crime must have been committed.
          2.     Another person must have committed all or part of the crime.
          3.     The defendant must have had knowledge that the other person
                 intended to commit all or part of the crime.
          4.     The defendant must have had the intent to promote or facilitate the
                 commission of the crime.
          5.     The defendant must have aided, abetted, advised, or encouraged the
                 other person in the commission or planning of the crime.

The state trial court also gave the jury a standard instruction concerning culpable mental

states.

          During their deliberations, the jury sent the trial court a note asking the following

questions:

          [W]e are stuck on the complicity instruction. If we find the person did not
          have the intent to commit a crime does the complicity instruction overrule
          that decision meaning if we have a reasonable doubt about the intent of the
          defendant but no reasonable doubt on the complicity instruction do we say
          he is guilty[?]

          The state trial court conferred with the attorneys for both sides regarding how to

respond to the note. In doing so, the state trial court concluded that simply referring the

jury back to the initial instructions was inadequate and it proposed a response outlining

complicity as an alternative form of liability and expanding on the culpability element.

Hagos’s counsel asked the trial court to wait until the next day to respond to the jury’s

note, but also proposed that the trial court should simply answer the question “no.” The

trial court decided to respond to the jury’s note at that time and not wait until the next

day, but it revised its response. The trial court then gave the jury the following response


                                                -6-
to its note:

       Complicity is an alternative form of liability. A person may be guilty as a
       principal — that is, by committing a prohibited act with the required mental
       state — by being a complicitor. But complicity also requires culpability, as
       described in Instruction No. 14. Under Instruction No. 14, you may find
       Defendant guilty as a complicitor only if you find that the prosecution has
       proved each of the five elements in that Instruction beyond a reasonable
       doubt. Among those five elements are some that require various kinds of
       culpability. Element number two requires that another person must have
       committed all or part of a crime; thus, that other person must have had the
       culpable mental state required of that particular crime. Element three
       requires that Defendant must have had knowledge that the other person
       intended to commit all or part of the crime. And finally, element four
       requires that Defendant must have intended to promote or facilitate the
       commission of the crime.

After receiving the trial court’s response and continuing to deliberate, the jury ultimately

acquitted Hagos of conspiracy to commit first-degree kidnapping, but convicted him of

conspiracy to commit second-degree kidnapping.

       On direct appeal, Hagos argued that the state trial court erred by not properly

responding to the jury’s questions. The Colorado Court of Appeals rejected Hagos’s

argument and concluded that the trial court’s “response, when read in conjunction with

the court’s instruction on complicitor liability, adequately responded to the jury’s

questions, as it encompassed the concept of alternative liability and both kinds of

culpability necessary for complicitor liability.” People v. Hagos, No. 03CA0315, slip op.

at 21 (Colo. Ct. App. Dec. 8, 2005). The Colorado Court of Appeals also rejected

Hagos’s argument that the state trial court erred by not defining the term “culpability” in

its response to the jury:


                                             -7-
       If a word is one with which reasonable persons of common intelligence
       would be familiar, and its meaning is not so technical or mysterious as to
       create confusion in jurors’ minds as to its meaning, an instruction defining
       it is not required.

Id. at 21-22.

       Hagos reasserted this claim in his federal habeas petition, arguing that his

Fourteenth Amendment due process rights were violated when the state trial court failed

to adequately or correctly clarify the jury’s confusion regarding complicity. In support,

Hagos argued that the Colorado Court of Appeals’ resolution of this claim was contrary to

and an unreasonable application of the decision in Bollenbach v. United States, 326 U.S.

607, 612-13 (1946), in which the Supreme Court held that “when a jury makes explicit its

difficulties a trial judge should clear them away with concrete accuracy.” According to

Hagos, the only proper response on the part of the state trial court would have been “no.”

       The district court rejected Hagos’s claim, concluding that the Colorado Court of

Appeals’ resolution of the claim was neither contrary to, nor involved an unreasonable

application of, Bollenbach. ROA, Vol. 2 at 54. In doing so, the district court effectively

rejected Hagos’s assertion that the Colorado Court of Appeals, in characterizing the trial

court’s response as “adequate,” failed to adhere to the standard outlined in Bollenbach.

       After considering Hagos’s request for COA, in which he essentially makes the

same arguments that he presented to the district court, we are not persuaded that he has

shown that reasonable jurists would find the district court’s assessment and denial of this

claim to be wrong or debatable.


                                             -8-
                                 III

Hagos’s request for a COA is DENIED and this matter is DISMISSED.




                                       Entered for the Court


                                       Mary Beck Briscoe
                                       Circuit Judge




                                 -9-
