                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     November 27, 2007
                         UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 JONATHAN A. KASPER,

           Petitioner-Appellant,
 v.                                                           No. 07-1289
 AL ESTEP, Warden;                                 (D.C. No. 05-cv-973-WDM-MEH)
 COLORADO ATTORNEY GENERAL,                                  (D. Colorado)

           Respondents-Appellees.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.


       Jonathan Kasper, a Colorado state prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §

2254 application for federal habeas relief. Because Kasper has failed to satisfy the

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

                                             I.

       In July 1993, Kasper was convicted in Colorado state court of felony murder and

several related charges and sentenced to life in prison. The Colorado Court of Appeals

(CCA), in affirming Kasper’s convictions and sentence on direct appeal, succinctly


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
summarized the underlying facts of his case:

       [Kasper] entered a former neighbor’s house on the pretext of using her
       telephone. He then bludgeoned her to death, ransacked the house, and fled.
       When later arrested and questioned by the police, [Kasper] first denied any
       involvement. But when informed of the physical evidence implicating him,
       he confessed that he had gone to the victim’s house with the intent to rob
       her, but blamed the actual killing on a companion. At trial, he admitted
       killing the victim, but claimed that he had acted in self defense and that he
       formed the intent to search her house for money only after he killed her.

State v. Kasper, Nos. 94CA0012 and 94 94CA0015, slip op. at 1 (Colo. Ct. App. Feb. 16,

1995). The Colorado Supreme Court (CSC) denied Kasper’s petition for writ of certiorari

on August 28, 1995, and the CCA issued its mandate on September 26, 1995.

       On or about May 31, 1996, Kasper filed a motion with the state trial court seeking

postconviction relief pursuant to Colo. R. Crim. P. 35(c). In his motion, Kasper asserted

that his trial counsel was ineffective for failing to move to suppress pre-arrest statements

he made to detectives who questioned him and his mother at the apartment they shared.

In support of this assertion, Kasper argued that the questioning amounted to a custodial

interrogation that occurred without benefit of a warning pursuant to Miranda v. Arizona,

384 U.S. 436 (1966), and that, in any event, the detectives employed deception in

obtaining his statements, thereby rendering those statements involuntary and in violation

of the Fifth Amendment. The state trial court, after conducting an evidentiary hearing,

denied Kasper’s motion on January 13, 2003. In doing so, the state trial court concluded

that the interrogation was not custodial in nature because, at the time thereof, the

detectives did not intend to arrest him and instead were simply interested in determining


                                               2
whether he would admit to having been inside the victim’s apartment. Further, the state

trial court found that the detectives did not misrepresent to Kasper and his mother their

reasons for wanting to talk to Kasper, and thus their conduct was not deceptive. Kasper

appealed the state trial court’s decision to the CCA. The CCA affirmed the state trial

court’s ruling in an unpublished order issued on December 9, 2004. State v. Kasper, No.

03CA0825 (Colo. Ct. App. Dec. 9, 2004). The CSC denied Kasper’s petition for writ of

certiorari on April 25, 2005, and the CCA issued its mandate on May 3, 2005.

       Kasper initiated these federal habeas proceedings on May 31, 2005, by filing an

application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Shortly thereafter, on

June 8, 2005, Kasper filed an amended application for writ of habeas corpus. In his

amended application, Kasper asserted four claims for relief: (1) that his trial counsel was

ineffective for “fail[ing] to diligently investigate, prepare and present all relevent [sic]

material evidence available in defense of the charges,” ROA, Vol. I, Doc. 4 at 5; (2) that

he was subjected by detectives to a custodial interrogation without benefit of a Miranda

warning; (3) that the detectives used deceptive tactics when they approached and

questioned him, thereby rendering his statements to them involuntarily and in violation of

the Fifth Amendment; and (4) that detectives violated his Fourth Amendment rights

because they entered the apartment he shared with his mother and questioned him without

a warrant, in the absence of exigent circumstances, and without his voluntary consent.

       On July 3, 2006, the magistrate judge assigned to the case issued an order

recommending dismissal of Kasper’s amended application. In that order, the magistrate

                                               3
judge concluded that Kasper had procedurally defaulted his claim of ineffective

assistance of trial counsel by failing to present it to the Colorado appellate courts. More

specifically, the magistrate judge noted that Kasper presented this claim in his application

for post-conviction relief, but when the state trial court denied relief on the claim, Kasper

failed to appeal that ruling to the CCA or the Colorado Supreme Court, and any attempt

on Kasper’s part to return to state court and exhaust his state court remedies would be

futile under Colorado state law. With respect to Kasper’s second claim (alleging that a

custodial interrogation occurred), the magistrate judge concluded that the CCA’s rejection

of this identical claim, on the grounds that Kasper was not “in custody” at the time of the

interrogation, was not subject to reversal under the standards for federal habeas review set

forth in 28 U.S.C. § 2254(d). With respect to Kasper’s third claim (alleging that the

detectives employed deceptive tactics, thereby rendering his statements to them

involuntary), the magistrate judge noted that the CCA “identified and applied the correct

governing legal princip[le]” to the claim, and that the state trial court’s underlying factual

determinations, with which the CCA agreed, were not unreasonable. ROA, Vol. I, Doc.

32 at 23. Finally, with respect to Kasper’s fourth claim (concerning the entry of the

detectives into his apartment), the magistrate judge concluded that Kasper “ha[d] failed to

provide any well-pled facts or facts from which it c[ould] be inferred that the [CCA]

failed to recognize or willfully refused to apply the correct and controlling constitutional

standards” in examining the claim, “and no such evidence [wa]s apparent from the

record.” Id. at 13.


                                              4
       On April 30, 2007, Kasper filed a motion requesting leave to supplement his

application with what he described as two “newly exhausted” claims for relief: (1) that

the state trial court improperly instructed the jury on the elements of burglary and felony

murder; and (2) Colorado’s felony murder statute was unconstitutional as applied to him

because the requisite intent had not been proven. On May 23, 2007, the magistrate judge

issued an order recommending that Kasper’s motion for leave to supplement his

application be denied. In doing so, the magistrate judge noted that on April 5, 2007, the

CCA, in affirming the state trial court’s denial of a second application for post-conviction

relief filed by Kasper, had held that the two new claims sought to be asserted by Kasper

“were procedurally barred because they were successive.” ROA, Vol. I, Doc. 42 at 2.

The magistrate judge concluded that this constituted an independent and adequate state

procedural ground that prohibited federal habeas review of the claims, and that Kasper

could not demonstrate cause and prejudice to overcome the procedural bar.

       On June 25, 2007, the district court issued an order adopting the recommendations

of the magistrate judge, denying Kasper’s motion to supplement his application, and

dismissing his application for writ of habeas corpus. The district court subsequently

denied Kasper a COA.

       Kasper has now renewed his request for a COA with this court. Kasper has also

filed a motion to proceed in forma pauperis on appeal.

                                             II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336


                                             5
(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

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

order to make that showing, a prisoner must demonstrate “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). If the district court denied the “habeas petition on procedural grounds without

reaching the prisoner's underlying constitutional claim,” the prisoner must, in order to

obtain a COA, demonstrate “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.” Id.

       After reviewing the record on appeal, we conclude that Kasper is unable to make

the requisite showing for the issuance of a COA. To begin with, we fully agree with the

magistrate judge and the district court that the first claim in Kasper’s amended

application, as well as the two “newly exhausted” claims that he sought to supplement his

amended application with, were procedurally barred and that no reasonable jurist could

conclude otherwise. As for the three remaining claims asserted in Kasper’s amended

application, we agree with the magistrate judge and the district court that Kasper has

failed to establish his entitlement to federal habeas relief under the standards of review set


                                               6
forth in 28 U.S.C. § 2254(d), and that no reasonable jurist could conclude that the district

court erred in dismissing these claims or that Kasper should be allowed to proceed further

on them.

       The motion for leave to proceed on appeal in forma pauperis and the request for a

COA are DENIED and the appeal is DISMISSED.


                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge




                                             7
