                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 16, 2011
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ROBERT CHAMP, a/k/a Jason King,

              Petitioner-Appellant,

 v.                                                     No. 10-1308
                                              (D.C. No. 1:08-CV-00859-CMA)
 ARISTEDES ZAVARAS, Executive                            (D. Colo.)
 Director of the Colorado Dept. of
 Corrections; ATTORNEY GENERAL
 OF THE STATE OF COLORADO,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Robert Champ (also known as Jason King), a Colorado state prisoner

proceeding pro se, 1 seeks a certificate of appealability (“COA”) to challenge the


      *
              This order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the appellate record, this three-judge panel determined
unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Champ is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
                                                                    (continued...)
district court’s denial of his application for a writ of habeas corpus filed pursuant

to 28 U.S.C. § 2254. Exercising jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we deny Mr. Champ’s application for a COA and dismiss his appeal.

                                  BACKGROUND

      In 2001, Mr. Champ was convicted of first-degree sexual assault, attempted

first-degree murder, and three habitual-criminal counts. The following facts,

taken from a decision of the state appellate court in these proceedings, provide a

succinct review of the background:

                   Following a party in December 1992, the victim, P.T., left
             with a man she did not know who had offered to give her a ride
             home. However, P.T. went with the man to an apartment in the
             adjacent building, where he sexually assaulted her at knifepoint.
             The man then took P.T. outside to the alley, stabbed her in the
             neck, and left her for dead. After P.T. made her way to a nearby
             house, police were called. Officer Christian arrived at the scene
             and saw P.T. bleeding from the wound on her neck. Officer
             Christian stayed with P.T. for approximately two hours and
             accompanied her in an ambulance to the hospital. P.T. told
             Officer Christian that the man with whom she had left the party
             had sexually assaulted her and stabbed her in the throat.

                   Later that morning, P.T. identified defendant in a
             six-person photographic lineup.

                   After recovering from her injuries, P.T. returned to her
             native Belgium in 1993, but died there in 1999 of unrelated
             causes. Defendant was tried and convicted as charged in 2001.

People v. King, 121 P.3d 234, 236–37 (Colo. App. 2005).



      1
      (...continued)
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).

                                          2
         Mr. Champ was sentenced to two concurrent life terms, without the

possibility of parole until after forty years. The Colorado Court of Appeals

affirmed his convictions and sentence on direct appeal, and the Colorado Supreme

Court denied his petition for certiorari.

         Mr. Champ thereafter filed a state petition for post-conviction relief

pursuant to Colorado Rule of Criminal Procedure 35(c), which the state district

court denied without holding a hearing. On appeal, the Colorado Court of

Appeals affirmed. Mr. Champ did not seek certiorari from the Colorado Supreme

Court.

         In 2008, Mr. Champ filed an application for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of

Colorado, which the district court denied without holding a hearing. The district

court also denied Mr. Champ’s request for a COA.

         Mr. Champ now seeks a COA from this court on the following five claims:

(1) whether his Fourteenth Amendment due-process rights were violated by the

trial court’s denial of trial counsel’s request for a continuance to conduct further

investigation (and then subsequently present evidence) of the victim’s character;

(2) whether his due-process rights were violated by the State’s failure to preserve

certain evidence, including the victim’s clothing, the victim’s panties, and the

weapon used to injure the victim; (3) whether his due-process rights and Sixth

Amendment right under the Confrontation Clause were violated when the trial


                                            3
court admitted a law enforcement officer’s testimony regarding incriminating

statements that the victim made following the attack; (4) whether his due-process

rights were violated by the admission of the victim’s out-of-court, photo-array

identification because the six-person photo array was impermissibly suggestive

and the identification was otherwise unreliable due to the victim’s mental state;

and (5) whether the federal district court abused its discretion in denying his

request to expand the record under Habeas Rule 7 (or to hold an evidentiary

hearing on many of his claims).

                                   DISCUSSION

I.    Standard of Review

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

application. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)). We will issue a COA only if the applicant “makes a ‘substantial showing

of the denial of a constitutional right.’” Clark, 468 F.3d at 713 (quoting 28

U.S.C. § 2253(c)(2)). Under this standard, “the applicant must show ‘that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” United States v. Taylor, 454 F.3d

1075, 1078 (10th Cir. 2006) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)). Put differently, “the applicant must show that the district court’s


                                          4
resolution of the constitutional claim was either ‘debatable or wrong.’” Id.

(quoting Slack, 529 U.S. at 484). Our “inquiry does not require full consideration

of the factual or legal bases adduced in support of the claims,” but rather “an

overview of the claims in the habeas [application] and a general assessment of

their merits.” Miller-El, 537 U.S. at 336.

         To the extent that the Colorado Court of Appeals decided Mr. Champ’s

claims on the merits, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) applies, and we must incorporate the Act’s “deferential treatment of

state court decisions . . . into our consideration of [Mr. Champ’s] request for [a]

COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under AEDPA,

Mr. Champ is entitled to federal habeas relief only if he can show that the state

court’s 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); accord Phillips v. Workman, 604 F.3d 1202, 1209 (10th Cir.

2010).

         When making our determination, “[w]e presume the factual findings of the

state court are correct unless the petitioner rebuts that presumption by ‘clear and

convincing evidence.’” Welch v. Workman, 639 F.3d 980, 991 (10th Cir. 2011)


                                           5
(quoting 28 U.S.C. § 2254(e)(1)).

II.   Denial of Request for Continuance

      Under his first claim, Mr. Champ argues that he was deprived of due

process when the trial court denied his request for a continuance filed

approximately three weeks before trial. More specifically, he argues that his due-

process rights were violated when the trial court refused to continue the trial to

permit his attorney to further investigate evidence regarding, inter alia, the

victim’s character and credibility, such as her “reputation for abusing drugs and

alcohol[],” her “mental and emotional instability,” and her “history of false

reporting of sexual abuse.” Aplt.’s Combined Opening Br. & Appl. for a COA at

14 [hereinafter COA Appl.]. 2

      2
              Before the state appellate court and the federal district court, Mr.
Champ presented this claim as two distinct claims: (1) whether “he was denied
due process because the trial court precluded the defense from presenting
evidence of the victim’s character” (e.g., drug and alcohol abuse and false
reporting of sexual abuse), R. at 524 (Order on Appl. for Writ of Habeas Corpus,
filed June 21, 2010); and (2) whether “he was deprived of due process when the
trial court denied defense counsel’s request for a continuance so that counsel
could further investigate materially relevant evidence and witnesses,” id. at
524–25 (internal quotation marks omitted).

      However, the only context in which the state trial court was presented with
any request regarding evidence about the victim’s character was the motion to
continue, which it denied; it was never presented with evidence regarding the
victim’s character, and therefore never ruled on whether any such evidence was
admissible. Recognizing this, both the state appellate court and the district court
concluded that Mr. Champ’s claims both arose out of the trial court’s denial of a
continuance to, among other things, further investigate the victim’s character and
credibility. See id. at 525 (“[T]he pertinent state court orders reflect that the trial
                                                                         (continued...)

                                          6
      “The matter of continuance is traditionally within the discretion of the trial

judge, and it is not every denial of a request for more time that violates due

process . . . .” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Only when a district

court’s denial is “arbitrary”—e.g., “a myopic insistence upon expeditiousness in

the face of a justifiable request for delay”—will it be seen as a denial of due

process. Id.; see also Morris v. Slappy, 461 U.S. 1, 11–12 (1983). Although

“[t]here are no mechanical tests for deciding when a denial of a continuance is so

arbitrary as to violate due process,” Ungar, 376 U.S. at 589, this court has stated

that “when a denial of a continuance forms a basis of a petition for a writ of

habeas corpus, not only must there have been an abuse of discretion, but it must

have been so arbitrary and fundamentally unfair that it violates constitutional

principles of due process,” Case v. Mondragon, 887 F.2d 1388, 1396 (10th Cir.

1989) (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir. 1981))

(internal quotation marks omitted).

      The state appellate court held that the denial was not an abuse of discretion,

      2
       (...continued)
court never ruled on the admissibility of the character evidence described above.
Instead, Petitioner’s claim arises out of the trial court’s denial of defense
counsel’s request for a continuance of trial to further investigate the victim’s
character.”); id. at 161 (Order, dated Dec. 13, 2007) (stating that these two claims
were “based on the same grounds,” i.e., the denial of a continuance).
Accordingly, Mr. Champ was never denied the opportunity to present evidence
regarding the victim’s character, and it was therefore not error for the courts to
consider Mr. Champ’s arguments under a single claim—viz., whether Mr. Champ
was entitled to relief based on the state trial court’s denial of his request for a
continuance.

                                          7
and therefore not a deprivation of Mr. Champ’s due-process rights, based on the

trial court’s findings that counsel “had ample time to investigate the case, that

there was no showing that additional time would result in the discovery of

relevant witnesses or information, and that there was no showing that the

information defendant sought to investigate was relevant or admissible under the

rape shield statute.” R. at 161. On federal habeas review, the district court held

that Mr. Champ was not entitled to relief under § 2254(d)(1) or (d)(2).

Reasonable jurists could not disagree with this result. Mr. Champ has not even

attempted to undermine the state court’s findings—e.g., that there was ample time

to investigate—and he has cited no Supreme Court case that would entitle him to

relief. Mr. Champ’s conclusory assertions that his due-process rights were

violated, absent more, do not demonstrate that he is entitled to habeas relief.

Accordingly, we deny Mr. Champ a COA on this claim.

III.   Failure to Preserve or Recover Evidence

       Under his second claim, Mr. Champ argues that

             he was denied due process because State law enforcement
             officers and the prosecution: (a) failed to preserve the victim’s
             clothing for testing to show that they were cut by hospital
             personnel, and not him; [3] (b) failed to preserve the victim’s

       3
            Many items of the victim’s clothing were introduced at trial,
including her bra, jacket, “tight leggings,” and shorts, which demonstrates that the
State recovered and preserved these items. State Trial Tr., Vol. 8, at 22–26.
Therefore, any claim regarding the items of clothing introduced at trial is
completely without merit. Thus, Mr. Champ’s claim that the government “failed
                                                                (continued...)

                                              8
             panties, which potentially would have yielded DNA evidence
             from other men; and ([c]) failed to recover and test the weapon
             that caused the victim’s neck injury.

COA Appl. at 18.

      The state appellate court—identifying a standard very similar to that

articulated in California v. Trombetta, 467 U.S. 479 (1984) 4—held that Mr.


      3
       (...continued)
to preserve the victim’s clothing for testing to show that they were cut by hospital
personnel, and not him,” COA Appl. at 18, can only be read to apply to any
additional clothing, if any, that the victim was wearing.
      4
              Under Trombetta, the government violates a defendant’s right to due
process when: (1) it destroys evidence that possesses “exculpatory value that was
apparent before the evidence was destroyed”; and (2) the defendant “would be
unable to obtain comparable evidence by other reasonably available means.” 467
U.S. at 489. In Arizona v. Youngblood, the Supreme Court extended Trombetta to
provide that, if the exculpatory value of the evidence is indeterminate and all that
can be confirmed is that the evidence was “potentially useful” for the defense,
then the defendant must show that the government acted in bad faith in destroying
or failing to preserve the evidence. 488 U.S. 51, 58 (1988).

     The state appellate court applied the standard articulated by the Colorado
Supreme Court in People v. Enriquez, which mirrors Trombetta:

             [I]n order to establish a due process violation for failure to
             preserve potentially exculpatory evidence, the defendant must
             establish that: (1) the evidence was suppressed or destroyed by
             the prosecution; (2) the evidence possessed an exculpatory value
             that was apparent before it was destroyed; and (3) the defendant
             was unable to obtain comparable evidence by other reasonably
             available means.

763 P.2d 1033, 1036 (Colo. 1988).

      “[W]hen a state court adjudicates a federal issue relying solely on a state
standard that is at least as favorable to the applicant as the federal standard, we
                                                                          (continued...)

                                           9
      4
        (...continued)
presume an adjudication on the merits and apply AEDPA deference.” Thornburg
v. Mullin, 422 F.3d 1113, 1124 (10th Cir. 2005); see also Harris v. Poppell, 411
F.3d 1189, 1196 (10th Cir. 2005) (“[I]f the [state appellate court] rejected [the
applicant’s] claim under a standard that is equally or more favorable to him
relative to the federal standard, the state court’s decision constitutes an
adjudication of the federal claim despite citing no federal decisions.”); Upchurch
v. Bruce, 333 F.3d 1158, 1164 n.4 (10th Cir. 2003) (concluding that the state
court adjudicated the federal claim on the merits because the state standard for a
claim of ineffective assistance of counsel “mirrors” the federal standard). In this
case, the state appellate court undoubtedly applied a standard mirroring
Trombetta. Therefore, insofar as Mr. Champ’s failure-to-preserve-evidence claim
implicates the Trombetta standard, we apply AEDPA deference to the state
appellate court’s adjudication.

       It is arguable, however, that Mr. Champ’s allegations also go beyond
Trombetta and implicate the Youngblood standard. See, e.g., COA Appl. at 18
(arguing that the State “failed to preserve the victim’s panties, which potentially
would have yielded DNA evidence from other men” (emphasis added)). The state
standard that the Colorado Court of Appeals applied seemingly does not
encompass the Youngblood standard (i.e., a finding of “bad faith” is required if
the evidence is only “potentially” exculpatory). Consequently, we ordinarily
would be obliged to review de novo the state court’s resolution of Mr. Champ’s
failure-to-preserve-evidence claim to the extent that it implicates Youngblood.
See Malicoat v. Mullin, 426 F.3d 1241, 1246 (10th Cir. 2005) (“[W]ith regard to
Mr. Malicoat’s claims regarding ineffective assistance of appellate and trial
counsel, the OCCA applied state law standards that differ from the federal
standard. We therefore engage in de novo review of those claims.”); see also
Byrd v. Workman, __ F.3d __, 2011 WL 2084204, at *5 (10th Cir. May 27, 2011)
(“Our standard of review changes if there has been no state-court adjudication on
the merits of the petitioner’s claim. In such situations, § 2254(d)’s deferential
standards of review do not apply.” (quoting Selsor v. Workman, __ F.3d __, 2011
WL 1632101, at *6 (10th Cir. May 2, 2011)) (internal quotation marks omitted));
Wilson v. Workman, 577 F.3d 1284, 1290 (10th Cir. 2009) (en banc) (“If there has
been no adjudication on the merits, we review the claim de novo.”).

       However, this general principle does not avail Mr. Champ for two reasons.
First, Mr. Champ does not argue for application of a de novo standard on the
grounds that the state court failed to apply the correct legal standard (i.e., a
                                                                         (continued...)

                                          10
Champ’s due-process rights were not violated by a failure to recover or preserve

the allegedly exculpatory evidence (i.e., the weapon, additional clothing not

introduced at trial, and panties). The state appellate court agreed with the trial

court that there was no evidence “that would show that a knife or additional

clothing was recovered from the scene,” and thus “the state cannot be held under

an obligation to preserve evidence that it does not and did not ever possess.” R.

at 163.

      On habeas review, the district court concluded that Mr. Champ was not

entitled to relief because the state court’s conclusion that Mr. Champ’s claim

failed because he had not demonstrated that the government ever possessed the

evidence—and, consequently, that it had an opportunity to destroy or fail to

preserve the evidence—was not an unreasonable determination of the facts based

on the evidence presented to the court. In particular, the district court noted that

Mr. Champ “did not provide the state courts with any information to substantiate

his claim.” Id. at 530. Moreover, it determined that the state court’s decision

was not an unreasonable application of governing Supreme Court precedent.

      4
        (...continued)
standard mirroring Youngblood) to a portion of his claim. Therefore, we are free
to deem any such contention to be waived, and to apply AEDPA deference to the
entirety of his claim. See Byrd, 2011 WL 2084204, at *5 n.8 (rejecting
petitioner’s argument for application of a de novo standard of review as waived
because he raised it for the first time in his reply brief). Second, for the reasons
discussed infra, Mr. Champ could not prevail even if we were to apply the more
rigorous de novo standard of review to the state court’s resolution of the portion
of his claim that arguably implicates the Youngblood standard.

                                          11
Reasonable jurists could not disagree with this outcome.

      Mr. Champ has not pointed to any evidence that was before the state court

which demonstrates that the State ever possessed the weapon, any additional

clothing, or the victim’s panties, thereby giving it the opportunity to subsequently

destroy or fail to preserve these items. Nor has he pointed to any case law

demonstrating that the government can be held to violate due process by failing to

preserve evidence that it never possessed or necessarily had access to. Therefore,

he is not entitled to a COA on this issue. That is, reasonable jurists could not

disagree with the district court’s conclusion that the state appellate court’s

resolution of this claim was not an unreasonable determination of the facts based

on the evidence presented, and was likewise not an unreasonable application of

clearly established federal law, because it cannot be said that the State had an

obligation to preserve evidence that it was never shown to possess. 5

      5
             Even assuming, arguendo, that the district court did not adjudicate
on the merits the portion of Mr. Champ’s failure-to-preserve-evidence claim that
arguably implicates Youngblood, see supra note 4, we would still conclude under
a de novo standard that Mr. Champ cannot prevail for at least two reasons. First,
akin to the reasoning articulated above, if it cannot be said that the State has a
duty to preserve clearly exculpatory evidence that it never possessed, see Bullock
v. Carver, 297 F.3d 1036, 1056 (10th Cir. 2002) (“The Due Process Clause
requires police departments to preserve clearly exculpatory evidence in their
possession that might not be available to a defendant through other means.”
(emphasis added)), a fortiori the State cannot be said to have a duty to preserve
evidence that is only potentially exculpatory within the meaning of Youngblood,
where there is no showing that the State ever possessed the evidence. Mr. Champ
has not even attempted to demonstrate that the State possessed the weapon,
additional clothing, and panties. Accordingly, he cannot demonstrate an
                                                                        (continued...)

                                          12
IV.   Incriminating Statements Made to Law Enforcement

      In his third claim, Mr. Champ asserts that his Fourteenth Amendment due-

process rights and Sixth Amendment right under the Confrontation Clause were

violated when the trial court admitted a police officer’s testimony regarding

incriminating statements the victim made following her attack. The trial court

admitted statements the victim made at the hospital two or three hours after she

was attacked, including her description of the attacker and her recounting of the

rape and subsequent stabbing. See State Trial Tr., Vol. 8, at 17–22 (recording

testimony about victim’s statements that “she had been raped,” her “description of

her assailant,” and her recounting of the events of the sexual assault and

subsequent stabbing). Although the victim died before Mr. Champ’s trial, and

Mr. Champ had no other opportunity to cross-examine her regarding the

statements made to the officer at the hospital, the trial court admitted the

statements under the “excited utterance” exception to the hearsay rule.

      A.     Due Process Claim

      Mr. Champ first argues that the victim’s statements to the officer were not

admissible under the Colorado Rules of Evidence because they do not qualify as

“excited utterances,” and, therefore, their admission violated his right to due

      5
       (...continued)
entitlement to relief under Youngblood. Second, and perhaps more
fundamentally, as the district court noted, to the extent that Mr. Champ relies on
Youngblood, “his claim fails because he does not point to any facts suggesting
bad faith on the part of law enforcement authorities.” R. at 530.

                                         13
process. The state appellate court denied relief on this claim, holding that the

district court did not abuse its discretion in admitting the statements under

Colorado Rule of Evidence 803(2). The district court concluded that Mr. Champ

was not deprived of due process because regardless of whether the evidence was

inadmissible, the admission of the evidence was not “so grossly prejudicial that it

fatally infected the trial and deprived him of due process.” R. at 532.

Accordingly, the district court held that he was not entitled to relief under

§ 2254(d). Reasonable jurists could not disagree with this result.

      “We may not provide habeas corpus relief on the basis of state court

evidentiary rulings ‘unless they rendered the trial so fundamentally unfair that a

denial of constitutional rights results.’” Duckett v. Mullin, 306 F.3d 982, 999

(10th Cir. 2002) (quoting Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir.

2000)). “Our ‘inquiry into fundamental unfairness requires examination of the

entire proceedings, including the strength of the evidence against the petitioner.’”

Harris, 411 F.3d at 1197 (quoting Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.

2002)). Viewing the statements in the context of all of the evidence presented at

trial, and specifically considering the strength of the evidence offered against Mr.

Champ, it cannot be said that the admission of the incriminating statements

rendered Mr. Champ’s trial fundamentally unfair. As summarized by the district

court, the State presented at least the following evidence:

             [T]he victim immediately identified Petitioner as “the person


                                             14
             who raped [her]” from a police photo array a few hours after the
             attack; Officer Christian collected the victim’s torn and bloody
             clothes within two hours after the attack; a semen sample
             matching the Petitioner’s DNA profile was found on the victim’s
             pantyhose; samples taken from blood found on a vehicle and in
             the snow in the alley down the block from the building where the
             sexual assault occurred matched the victim’s DNA; and, several
             witnesses observed the stab wound in the victim’s neck and
             testified that it was bleeding profusely.

R. at 533 (second alteration in original) (citing State Trial Tr., Vol. 7, at 80–86;

State Trial Tr., Vol. 8, at 14–15, 22, 24–27, 48–50, 75, 95–99, 102–03, 143–60).

      Mr. Champ has not attempted to rebut any of this evidence, and has

likewise not pointed to any Supreme Court case that would entitle him to relief

under this claim. Because the district court’s decision is not debatable—that is,

because reasonable jurists could not disagree with the district court’s conclusion

that Mr. Champ was not entitled to relief under § 2254(d)—Mr. Champ is not

entitled to a COA on his due-process claim.

      B.     Confrontation Clause

      Mr. Champ next asserts that the admission of the victim’s statements

violated his Sixth Amendment right under the Confrontation Clause because the

statements “w[ere] testimonial in nature.” COA Appl. at 21. Although not cited

by Mr. Champ in his COA application, this claim is apparently brought under

Crawford v. Washington, in which the Supreme Court held that out-of-court

“testimonial” statements made by a witness who is unavailable to testify at trial

are inadmissible unless the defendant had a prior opportunity to cross-examine the


                                          15
witness. 541 U.S. 36, 53–54 (2004).

      Addressing “whether [the victim’s] statements to Officer Christian were

testimonial interrogation so as to render them inadmissible under Crawford,” the

state appellate court held that, under the circumstances, her statements were

“nontestimonial” and therefore their introduction “did not violate [Mr. Champ’s]

right of confrontation.” King, 121 P.3d at 239–41. 6 The appellate court identified

Crawford as the governing Supreme Court precedent, and noted that the Crawford



      6
              Crawford was decided while Mr. Champ’s case was pending on
direct appeal; therefore, the appellate court correctly identified it as the
controlling Supreme Court precedent. However, it is important to note that the
state appellate court resolved this issue prior to the Supreme Court’s decision in
Davis v. Washington, in which the Court elaborated on the definition of
“testimonial.” See 547 U.S. 813 (2006). Specifically, the Davis Court held that
“[s]tatements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency,” id. at
822 (emphasis added), and are “testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution,” id. (emphasis added).

       It is well-settled that state-court decisions under AEDPA are measured
against the Supreme Court’s precedents that existed at “the time of the relevant
state-court decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 412 (2000)) (internal quotation marks omitted);
see also Stevens v. Ortiz, 465 F.3d 1229, 1235–38 (10th Cir. 2006) (noting that
the court is instructed to identify and apply the clearly established Supreme Court
precedent existing at the time the defendant’s conviction became final).
Therefore, we do not consider Davis—much less the Supreme Court’s more recent
decision in Michigan v. Bryant, 131 S. Ct. 1143 (2011), where the Court further
explored the meaning of “testimonial”—in determining whether the state
appellate court’s decision was contrary to, or involved an unreasonable
application of, federal law.

                                         16
Court had “declined to specify what constitutes a ‘testimonial’ statement.” Id. at

239 (citing Crawford, 541 U.S. at 51–52). Applying Crawford, the appellate

court concluded that the victim’s statements in this case were not

“testimonial”—and therefore not barred under Crawford—based on the following

reasoning:

             Officer Christian arrived upon the scene to find the victim
             bleeding from her neck. She applied pressure to the wound, and
             it was necessary for her to ride in the ambulance with the victim
             to continue to apply pressure to stop the bleeding. Although
             Officer Christian remained at the hospital with the victim for
             about two hours, [the victim] was still distressed by the assault
             and was in a substantial amount of pain from her injuries. [The
             victim’s] statements were not made in a formal setting such as a
             police station. Nor were the statements elicited by Officer
             Christian in a deliberate manner to obtain incriminating evidence
             against defendant.

                    Although the statements made by the declarants in many
             of the [cases cited by the state appellate court] were made closer
             in time to the occurrence of the incident or crime, . . . unlike the
             injuries in those situations, [the victim’s] injuries were possibly
             life threatening. Therefore, it took an extended period of time
             for the doctors to stabilize [her], which resulted in an extended
             period of pain and distress. The seriousness of [her] injuries
             supports the nontestimonial nature of the statement because
             under such pain and distress, it is highly unlikely that [the
             victim] or any reasonable person would make any statement with
             the expectation that it would subsequently be used
             prosecutorially.

                    We also agree . . . that classification of a statement as an
             excited utterance, while not dispositive, supports a conclusion
             that a statement is nontestimonial. An excited utterance by
             definition is one made before the declarant has had an
             opportunity to reflect on the event. Therefore, it is consistent
             with the definition of an excited utterance to conclude that it is


                                             17
              not a statement which a declarant would reasonably believe at the
              time it was made might later be used at trial.
                     ....

                     Accordingly, we hold that where, as here, a victim makes
              an excited utterance to a police officer, in a noncustodial setting
              and without indicia of formality, the statement is nontestimonial
              interrogation under Crawford. We recognize that there may
              nevertheless be unanticipated circumstances, similar in nature,
              that would warrant a different conclusion.

Id. at 240.

      The federal district court—noting that “the Supreme Court in Crawford did

not provide an exhaustive classification of all conceivable statements in response

to police questioning as testimonial or non[-]testimonial,” R. at 537—held that

Mr. Champ had not demonstrated that the state appellate court’s resolution of the

claim was contrary to or an unreasonable application of Crawford, id. at 537–38.

Reasonable jurists could not disagree with this outcome.

      As noted by the state appellate court and the federal district court, the

Supreme Court in Crawford declined to “spell out a comprehensive definition of

‘testimonial,’” but instead only established that “it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a former trial; and to

police interrogations.” Crawford, 541 U.S. at 68; see also id. at 51–52 (listing

“[v]arious formulations” of “testimonial” statements, including “ex parte in-court

testimony or its functional equivalent—that is, material such as affidavits,

custodial examinations, prior testimony that the defendant was unable to



                                          18
cross-examine, or similar pretrial statements that declarants would reasonably

expect to be used prosecutorially,” and “extrajudicial statements . . . contained in

formalized testimonial materials, such as affidavits, depositions, prior testimony,

or confessions” (ellipsis in original) (quoting White v. Illinois, 502 U.S. 346, 365

(1992) (Thomas, J., concurring)) (internal quotation marks omitted)).

      Mr. Champ argues that the victim’s statements in this case were

undoubtedly “testimonial” because she “had more-than-adequate time to reflect

upon the consequences of her actions and behaviors in this matter,” and because

they were made during the course of a “structured interrogation designed to elicit

(draw out) specific responses to fit law enforcement’s theory of what occurred,

rather than what actually occurred.” COA Appl. at 20–21. However, in support

of his arguments that he is entitled to a COA on this issue, Mr. Champ does not

cite to a single Supreme Court case on the Confrontation Clause—not even

Crawford. Therefore, he has failed to establish that the state appellate court’s

resolution of this claim was contrary to, or an unreasonable application of,

Supreme Court precedent—namely, Crawford.

      Furthermore, even putting aside Mr. Champ’s complete failure to reference

any controlling Supreme Court precedent, he still is not entitled to a COA. The

Supreme Court in Crawford did not expressly indicate that statements like those

in the instant case should be deemed “testimonial,” and such a conclusion could

not reasonably be inferred from the facts of that case. Specifically, the facts of


                                          19
Crawford are materially distinguishable from the facts of this case—for example,

in Crawford, the statements were made in response to an official interrogation

held at the police station while the witness was in police custody and under no

stress, see 541 U.S. at 65, whereas the statements in this case were made in

response to questioning that occurred at a hospital while the victim was still under

the extreme stress of the attack. Therefore, it cannot be said that the state

appellate court’s decision was “contrary to” Crawford. See, e.g., Gipson v.

Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (“Under the ‘contrary to’ clause,

we grant relief only ‘if the state court arrives at a conclusion opposite to that

reached by the Supreme Court on a question of law or if the state court decides a

case differently than the Court has on a set of materially indistinguishable facts.’”

(alteration omitted) (quoting Williams, 529 U.S. at 413)).

      The state appellate court’s decision also was not an “unreasonable

application” of Crawford. “Under the ‘unreasonable application’ clause, relief is

provided only ‘if the state court identifies the correct governing legal principle

from the Supreme Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case,’” id. (alteration omitted) (quoting Williams, 529 U.S.

at 413), or “either unreasonably extends, or unreasonably refuses to extend, a

legal principle from Supreme Court precedent to a new context where it should

apply,” House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008). Relief is not

warranted under this clause “simply because we conclude in our ‘independent


                                          20
judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be

unreasonable.’” Gipson, 376 F.3d at 1196 (quoting Williams, 529 U.S. at 411);

see also House, 527 F.3d at 1019 (“[A]n unreasonable application constitutes

more than an incorrect application of federal law.” (emphasis added)). In this

case, the state appellate court identified the correct legal standard—viz.,

Crawford. Furthermore, based on the circumstances surrounding the questioning

and resulting responses—for example, the fact that the interaction took place at

the hospital while the victim was under a tremendous amount of pain and stress,

rather than during a custodial or otherwise-formal interrogation 7—the state

appellate court concluded that the victim’s statements were not “testimonial” as

that term was defined in Crawford. This was not an “objectively unreasonable”

application of Crawford. Reasonable jurists could not disagree with the district

court’s conclusion to this effect; thus, Mr. Champ is not entitled to a COA on this

issue. 8


           7
             Mr. Champ has neither rebutted, nor attempted to rebut, these facts
by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (stating that
factual findings of a state court are “presumed to be correct,” and that the
applicant “ha[s] the burden of rebutting the presumption of correctness by clear
and convincing evidence”).
           8
             The district court also concluded that Mr. Champ was not entitled to
relief under § 2254(d)(2) because the state appellate court’s resolution of this
claim was not “unreasonable in light of the evidence presented.” R. at 538. To
the extent that Mr. Champ argues that he is entitled to relief under
                                                                       (continued...)

                                          21
V.    Out-of-Court, Photo-Array Identification

      Under his fourth claim, Mr. Champ argues that the victim’s out-of-court

identification of him violated his due-process rights because it was (1)

“impermissibly suggestive[] due to the manner in which [the photo] array was

presented,” and (2) “unreliable . . . due to the victim’s confused mental state”

(e.g., she was allegedly intoxicated and also sedated due to her injuries). COA

Appl. at 23–24. A police officer showed the victim a six-person photo array

while she was still being treated for her injury at the hospital following the attack.

The victim identified Mr. Champ’s photograph as depicting her attacker. Mr.

Champ argues that the use of this evidence violated his due-process rights.

      The state appellate court rejected this claim because (1) “there was nothing

unduly suggestive about the officer’s showing of the [six-person] photo array to

the victim,” (2) the victim “had a sufficient opportunity to observe her assailant to

make an accurate identification,” (3) “neither officer thought she was under the

influence of alcohol or detected any odor of alcohol,” and (4) “any evidence of

mental health problems or the degree to which she was upset went to the weight

of the evidence rather than its admissibility.” R. at 165–66 (internal quotation

marks omitted). Accordingly, the appellate court concluded that Mr. Champ’s



      8
        (...continued)
§ 2254(d)(2)—and it does not appear that he has attempted to do so before this
court—the district court is correct. Based on the evidence presented at trial, the
district court’s resolution of this claim cannot be said to be “unreasonable.”

                                         22
allegations “were insufficient to support a finding of a due process violation.” Id.

at 166.

      On federal habeas review, the district court held that Mr. Champ was not

entitled to relief under § 2254(d)—specifically, that the state appellate court’s

conclusion that the identification did not violate due process was not contrary to

or an unreasonable application of Supreme Court precedent, nor an unreasonable

determination of the facts in light of the evidence presented.

      In his COA application, Mr. Champ does not argue that he is entitled to

relief under § 2254(d)(1) or (d)(2), let alone reference the language found in those

provisions. Furthermore, he cites to no Supreme Court case that would entitle

him to relief under this claim. And, aside from arguing that the state court’s

resolution was based on “incomplete information,” COA Appl. at 24, he makes no

argument that the state court’s determination of the facts based on the evidence

presented to it was unreasonable. Accordingly, Mr. Champ has not demonstrated

that reasonable jurists could debate the correctness of the district court’s

resolution of this claim, and thus he is not entitled to a COA on this issue.

      Even if we were to disregard the deficiencies in Mr. Champ’s COA

application, he is still not entitled to relief under this claim. We have summarized

the controlling principles found in Supreme Court precedent:

             When the constitutionality of a photo array is challenged, the due
             process clause requires a two-pronged inquiry: first, the court
             must determine whether the photo array was impermissibly


                                             23
             suggestive, and if it is found to be so, then the court must decide
             whether the identifications were nevertheless reliable in view of
             the totality of the circumstances.

United States v. Sanchez, 24 F.3d 1259, 1261–62 (10th Cir. 1994) (citing

Simmons v. United States, 390 U.S. 377, 384 (1968), and Johnston v. Makowski,

823 F.2d 387, 391 (10th Cir. 1987)); see Manson v. Brathwaite, 432 U.S. 98,

106–07 (1977) (“The admission of testimony concerning a suggestive and

unnecessary identification procedure does not violate due process so long as the

identification possesses sufficient aspects of reliability.”); see also Watkins v.

Sowders, 449 U.S. 341, 347 (1981) (noting that “[i]t is the reliability of

identification evidence that primarily determines its admissibility”).9

      Mr. Champ does not dispute our understanding of the controlling

principles. See COA Appl. at 24 (discussing Sanchez). “These two prongs must

be analyzed separately, and it is only necessary to reach the second prong if the

      9
              Although the state appellate court cited state law when reviewing this
claim, the claim was undoubtedly “adjudicated on the merits” because the
standard applied by the state court was “at least as favorable to the applicant as
the federal standard.” Thornburg, 422 F.3d at 1124. Compare R. at 164–65 (“A
pretrial identification procedure violates a defendant’s due process rights if it is
so impermissibly suggestive as to give rise to a very substantial likelihood of
irreparable misidentification. . . . If the defendant is able to [show that it was
impermissibly suggestive], the burden shifts to the prosecution to show that,
despite the improper suggestiveness, the identification was reliable under the
totality of the circumstances.”), with Sanchez, 24 F.3d at 1261–62 (“When the
constitutionality of a photo array is challenged, the due process clause requires a
two-pronged inquiry: first, the court must determine whether the photo array was
impermissibly suggestive, and if it is found to be so, then the court must decide
whether the identifications were nevertheless reliable in view of the totality of the
circumstances.”).

                                          24
court first determines that the array was impermissibly suggestive.” Sanchez, 24

F.3d at 1262. Apart from his wholly conclusory statement that “the photo array

presented by law enforcement officials to the victim in this matter at the hospital

was impermissibly suggestive,” COA Appl. at 24, Mr. Champ provides no

argument and points to no evidence that could serve to rebut the state court’s

finding that “there was nothing unduly suggestive about the photos or procedure

used by the detective.” R. at 165. Accordingly, Mr. Champ has not shown that

the photo array was unconstitutional—i.e., that it was in any way impermissibly

suggestive. Furthermore, an independent review of the record suggests that it was

not. Therefore, reasonable jurists could not disagree with the district court’s

conclusion that Mr. Champ was not entitled to relief under this claim.

VI.   Denial of Request to Expand the Record

      In his last claim, Mr. Champ argues that the district court “erred and abused

its discretion when it summarily denied his pro se Motion to Expand the Record

Pursuant to Habeas Rule 7.” COA Appl. at 26. 10 Although he does not

specifically present it as one of the five issues raised on appeal, Mr. Champ also

argues throughout his application that the district court erred in failing to conduct



      10
             Rule 7 of the Rules Governing Section 2254 Cases in the United
States District Courts states, in part, that “[i]f the petition is not dismissed, the
judge may direct the parties to expand the record by submitting additional
materials relating to the petition,” including “letters predating the filing of the
petition, documents, exhibits, . . . answers under oath to written interrogatories
propounded by the judge, [and] [a]ffidavits.”

                                           25
an evidentiary hearing “to fully develop [the] evidence” and to make up for the

lack of evidence before the state courts. Id. at 15; see id. at 12, 17. In the past,

“[a] district court’s decision to grant or deny an evidentiary hearing in a habeas

proceeding [wa]s reviewed for an abuse of discretion.” Anderson v. Attorney

General, 425 F.3d 853, 858 (10th Cir. 2005). The same was true with regard to a

district court’s refusal to supplement the record under Habeas Rule 7. See, e.g.,

Landrum v. Mitchell, 625 F.3d 905, 923 (6th Cir. 2010); Eckstein v. Kingston, 460

F.3d 844, 852 (7th Cir. 2006).

      However, under the Supreme Court’s recent decision in Cullen v.

Pinholster, habeas “review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits.” 131 S. Ct. 1388,

1398 (2011). The Cullen Court reasoned that the “backward-looking language”

found in § 2254(d)(1) “requires an examination of the state-court decision at the

time it was made”; therefore, the record under review must be “limited to the

record in existence at that same time—i.e., the record before the state court.” Id.

Although Cullen dealt with new evidence that the district court admitted in the

context of an evidentiary hearing, this newly articulated rule applies with equal

force to any expansion of the record under Habeas Rule 7. That is, Cullen stands

for the proposition that the district court can only examine “the record in

existence at [the] time [the state-court decision was made]—i.e., the record before

the state court.” Id.


                                           26
      Mr. Champ’s requests to expand the record and to hold an evidentiary

hearing to further develop the record aim to place new evidence before the federal

court that was not a part of the state-court record. Under Cullen, this is no longer

permitted. 11 Accordingly, Mr. Champ is not entitled to an expansion of the record

or an evidentiary hearing. See Atkins v. Clarke, __ F.3d __, 2011 WL 1419127, at

*1 (1st Cir. 2011) (“The Supreme Court’s new decision in Cullen v. Pinholster

requires that we reject this appeal from a denial of a request for an evidentiary

hearing in relation to a petition for habeas corpus.” (citation omitted)).

                                  CONCLUSION

      For the reasons set forth above, we DENY Mr. Champ’s request for a COA

and DISMISS his appeal.



                                       ENTERED FOR THE COURT



                                       Jerome A. Holmes
                                       Circuit Judge

      11
              Even if Cullen did not control—in either whole or part—our
resolution of this issue, we would conclude that the district court did not abuse its
discretion in denying Mr. Champ’s requests to place additional evidence before it.
The district court correctly concluded that either Mr. Champ’s supplementation
requests were “too vague to provide a basis for the requested relief,” R. at 551, or
the evidence at issue would not have altered the outcome, see Landrum, 625 F.3d
at 925 (noting that the affidavit petitioner was denied permission to add to the
record “would not have made a difference”); Eckstein, 460 F.3d at 852 (noting
that the “alleged error” that petitioner sought to bring to the court’s attention
through supplementation of the record “had no chance of affecting the outcome”).

                                         27
