                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            May 31, 2005
                                     TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

 BERNARD CASTRO,

            Petitioner-Appellant,

 v.                                                        No. 04-1440
                                                   (D.C. No. 03-MK-962 (PAC))
 JIM KEITH, JOE ORTIZ, and JOHN                            (D. Colo.)
 SUTHERS *, the Attorney General of
 the State of Colorado,

            Respondents-Appellees.


                              ORDER AND JUDGMENT           **




Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


           Bernard Castro, a former state prisoner proceeding pro se, appeals from the

denial of his 28 U.S.C. § 2254 habeas petition raising two claims contesting his

conviction for criminally negligent homicide and one claim contesting his

sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000). During the


    Pursuant to Fed. R. App. P. 43(c)(2), John Suthers is substituted as Attorney
      *

General of the State of Colorado for Ken Salazar.

      The case is unanimously ordered submitted without oral argument pursuant
      **

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
pendency of the habeas proceedings the Supreme Court issued its decision in

United States v. Blakely, 124 S.Ct. 2531 (2004). The district court denied

Castro’s petition, and granted a certificate of appealability (“COA”) only as to the

sentencing issue. For substantially the same reasons set forth by the district court,

we DENY Castro’s request for a COA for the remaining two issues. 1 As to the

sentencing issue for which the district court granted a COA, the state defendants

have moved for a dismissal of this issue as moot. Our review confirms that the

sentencing issue is moot, and the appeal of that issue is therefore DISMISSED.

       We must first address the jurisdictional argument. Castro contends that the

trial court, not a jury, made findings of aggravated circumstances under the

Colorado sentencing scheme in violation of his rights under the Sixth and

Fourteenth Amendments. The state defendants argue that Castro’s claims



   1
      Castro’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2254
upon a grant of 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.” § 2253(c)(2). This requires Castro to show “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) (quotations omitted). Because the district court denied Castro a COA
for the first two issues, he may not appeal the district court’s decision absent a
grant of COA by this court.

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attacking his sentence are moot, as Castro has completed his sentence and has

been unconditionally released from custody during the pendency of the habeas

proceedings. 2 We agree. In Carafas v. LaVallee, the Supreme Court held that a

petitioner’s challenge of his conviction is not rendered moot by the fact that the

underlying sentence has expired because certain collateral consequences flowing

from the conviction give the petitioner “a substantial stake in the judgment of

conviction which survives the satisfaction of the sentence imposed on him.” 391

U.S. 234, 237 (1968). However, in Lane v. Williams, 455 U.S. 624, 631 (1982),

the Court clarified that the Carafas rule does not apply when the petitioner

purports to challenge his sentence and the sentence has been fully served.

Because Castro has been unconditionally discharged from custody after having

completed his sentence, his habeas claim attacking his sentence is moot. 3

       We turn next to Castro’s two claims attacking his conviction, for which the

   2
     Because Castro was serving his sentence when he filed his § 2254 petition,
he has satisfied the “in custody” requirement of § 2254. See Spencer v. Kemna ,
523 U.S. 1, 7 (1998).
   3
     Although his sentence appeal is moot, we discern no error in the district
court’s evaluation of Castro’s claim attacking his sentencing under       Apprendi and
Blakely . At the time the Colorado Court of Appeals evaluated Castro’s
sentencing arguments, its interpretation of     Apprendi was not unreasonable.
Further, w e have held that Blakely did not announce a watershed rule of criminal
procedure that would apply retroactively to initial habeas petitions such as
Castro’s. United States v. Price, 400 F.3d 844, (10th Cir. 2005). Further,
Castro’s claim does not fall within the “capable of repetition, yet evading review”
exception to the mootness doctrine because there is no reasonable expectation that
Castro would be subject to the same action again.        See Spencer , 523 U.S. at 17.

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district court did not issue a COA. The district court determined that some of

Castro’s claims were exhausted, and some were not. Nevertheless, after

according the appropriate AEDPA deference, the district court evaluated the

mixed petition and denied Castro’s claims on the merits under 28 U.S.C.

§ 2254(b)(2), and denied a COA as to these two claims. We discern no error in

the district court’s evaluation of these claims.

      Under AEDPA, if a claim is adjudicated on the merits in state court, we

will grant habeas relief only if that adjudication 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 “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)(1)–(2). After

careful review of Castro’s application, the district court’s order denying relief,

and the material portions of the record on appeal, we conclude that Castro’s

claims are without merit.

      In his § 2254 petition, Castro claims first that the untimely preliminary

hearing, and improper transfer of the case between divisions of the trial court, or

between County and District court, amount to violations of his Due Process right

under the Fifth and Fourteenth Amendments, i.e. that the cumulative effects of

these alleged procedural errors rendered his trial procedurally unfair. In a


                                          -4-
comprehensive twenty page opinion, adopting two recommendations by the

magistrate judge, the district court found that Castro had failed to establish any

fundamental unfairness arising from the alleged procedural defect, and further

that he had failed to establish that the Colorado Court of Appeals’ factual finding

that Castro’s second trial was timely commenced within six months following the

mandate of the prior appeal was in error. We agree that Castro has failed to make

the required showing of a violation of a federally protected right or an

unreasonable application of the facts in light of the evidence in the state

proceedings.

      Secondly, Castro claims that the state trial court made several evidentiary

errors, specifically in excluding testimony from two surgeons who would have

testified as to Castro’s serious medical and physical disabilities and permanent

injuries; excluding testimony concerning the victim’s boxing skills, and refusing

to give a jury instruction regarding the victim’s fists being deadly weapons; and

admitting a deceased witness’s prior testimony. The district court evaluated each

evidentiary claim and found that Castro had failed to establish the violation of a

federally protected right. Additionally, the district court reevaluated the

admission of the deceased witness’s prior testimony which had been done under

Roberts v. Ohio, 448 U.S. 56 (1980), after the Supreme Court issued Crawford v.

Washington, 541 U.S. 36 (2004). After evaluating Crawford, which was issued


                                          -5-
during the pendency of the habeas proceedings, the district court found that the

trial court had not erred under either the Roberts or Crawford standard because

Castro had an actual opportunity and similar motive to cross examine the

deceased witness at the first trial. On our review of both the record and the

district court order denying relief, we conclude that Castro has failed to make “a

substantial showing of the denial of a constitutional right” to justify a COA on

these claims. § 2253(c)(2).

      Accordingly we DISMISS the sentencing claim as moot, and DENY a

COA on the remaining two claims.

                                               ENTERED FOR THE COURT



                                               Carlos F. Lucero
                                               Circuit Judge




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