                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                            FOR THE TENTH CIRCUIT                               June 15, 2020
                        _________________________________
                                                                            Christopher M. Wolpert
                                                                                Clerk of Court
 ARIC MIERA,

       Petitioner - Appellant,

 v.                                                            No. 20-1073
                                                     (D.C. No. 1:19-CV-02040-WJM)
 MATT WINDEN; THE ATTORNEY                                      (D. Colo.)
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before BRISCOE, BALDOCK, and CARSON, Circuit Judges.
                   _________________________________

       Aric Miera seeks to appeal the denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254. We conclude Mr. Miera is not entitled to a certificate of

appealability (“COA”) and dismiss this matter.

                                             I

       Mr. Miera was charged in Colorado state court with first-degree murder after

deliberation, felony murder, first-degree burglary with intent to commit murder, and two

crimes of violence after he shot and killed his ex-wife’s divorce attorney. The evidence



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
at his first trial demonstrated that he had been exhibiting bizarre behavior in the days

leading up to and including the shooting. After his arrest on the day of the shooting, he

gave a videotaped statement to police in which he stated that he had ingested “speed” a

couple of days earlier. A blood sample taken shortly after his arrest, however, did not

contain any traceable amounts of drugs or alcohol.

       The trial court granted a mistrial at Mr. Miera’s first trial. At his second trial, he

argued that he was not guilty by reason of insanity. The prosecution maintained that he

was not insane and that he was seeking revenge against the victim for his role in Mr.

Miera’s divorce. The prosecution also argued that because Mr. Miera’s psychosis was

caused by substance abuse, he was excluded from the definition of insanity.

       At his second trial, the jury convicted Mr. Miera of first-degree murder after

deliberation and first-degree burglary with intent to commit murder. He was sentenced to

life without parole, and his convictions were affirmed on direct appeal. Mr. Miera

followed with an application for post-conviction relief. The state trial court denied the

application, a decision that was affirmed by the Colorado Court of Appeals.

       Mr. Miera subsequently filed a pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254, challenging the validity of his convictions. In his petition, he

asserted two claims: (1) that the trial court’s failure to sua sponte instruct the jury

regarding voluntary intoxication violated his due process rights; and (2) that his counsel

was ineffective by failing to request jury instructions on voluntary intoxication; failing to

seek suppression of unconstitutionally obtained inculpatory statements; and failing to

object to admission of evidence of prior bad acts. The district court denied Mr. Miera’s

                                               2
petition and denied a COA. It concluded that he had not shown that the state court’s

resolution of these claims was contrary to, or an unreasonable application of, clearly

established federal law or that the state court decision was based on an unreasonable

determination of the facts, as required for federal relief. Mr. Miera timely filed a notice

of appeal.

                                             II

       A state prisoner must obtain a COA in order to appeal a denial of federal habeas

relief. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). A petitioner seeking a COA

must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This, in turn, requires a demonstration 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). Put another way, a state prisoner must show that the district court’s resolution

of his or her constitutional claim was “debatable or wrong.” Id.

       Habeas petitions are evaluated in light of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. A state prisoner must first exhaust

his or her claims in state court before a federal court may review them. 28 U.S.C.

§ 2254(b)(1)(A). For claims adjudicated by a state court on the merits, federal relief is

proper only if the prisoner shows the state court decision was “contrary to, or involved an

unreasonable interpretation of, clearly established Federal law, as determined by the

Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an

                                              3
unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” 28 U.S.C. § 2254(d)(2). “The question under AEDPA is not whether

a federal court believes the state court’s determination was incorrect but whether that

determination was unreasonable—a substantially higher threshold.” Schriro v.

Landrigan, 550 U.S. 465, 473 (2007). On federal appeal, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of a habeas

petitioner’s request for COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

                                             III

                                              A

       Turning to Mr. Miera’s first claim in his application for a COA—that the trial

court’s failure to sua sponte instruct the jury regarding voluntary intoxication violated his

due process rights—the district court concluded that the state court’s resolution of this

claim was not based on an unreasonable determination of the facts given “the absence of

evidence of intoxication at the time of the offense” and “the fact that the intoxication

instruction would have significantly undermined the insanity defense.” ROA, Vol. I at

325. The district court also concluded that Mr. Miera failed to demonstrate that the state

court’s resolution of this claim was contrary to, or an unreasonable application of, clearly

established federal law, as he failed to cite any contradictory Supreme Court case. Id. at

325–26 (emphasizing that Mr. Miera’s arguments related to the state court misapplying

state law).

       On appeal, Mr. Miera fails to meaningfully address the district court’s rationale for

its conclusion that he is not entitled to relief on this claim. In his application for a COA,

                                              4
he cites various Colorado cases relating to when a defendant can request jury instructions

on lesser offenses; when an erroneous jury instruction constitutes plain error; and the

forms of insanity defenses. See Aplt. Br. at 9–10. But Mr. Miera fails to cite a Supreme

Court case to argue that the state court’s resolution of this claim was contrary to, or an

unreasonable application of, clearly established federal law. See Williams v. Taylor, 529

U.S. 362, 412 (2000) (clearly established federal law “refers to the holdings, as opposed

to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court

decision”). He also fails to address the district court’s conclusion that the state court’s

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

While we liberally construe the filings of pro se appellants, see Ledbetter v. City of

Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003), we are “not required to manufacture an

appellant’s argument on appeal when [he] has failed in [his] burden to draw our attention

to the error below.” Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995)

(quotations omitted) (emphasizing that the appellant “bears the burden of demonstrating

the alleged error” in the district court’s decision); see Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are

waived.”). Mr. Miera fails to call the district court’s analysis of his due process claim

into question.

                                              B

       In his second claim, Mr. Miera contends that his counsel was ineffective. He

argues, first, that his counsel was ineffective by failing to request jury instructions on

voluntary intoxication. The district court rejected this argument, concluding that Mr.

                                              5
Miera failed to identify any Supreme Court decision contrary to the state court ruling;

failed to demonstrate that the state court unreasonably applied Strickland v. Washington,

466 U.S. 668 (1984) (setting forth the two-part test for judging ineffective assistance of

counsel claims); and failed to show that the state court’s decision was based on an

unreasonable determination of the facts. ROA, Vol. I at 331–34. Once more, Mr. Miera

fails to respond to the district court’s analysis. In his application for a COA, he cites—

without any supporting argument—Ninth Circuit and Colorado cases setting forth the

framework for evaluating ineffective assistance of counsel claims. See Aplt. Br. at 10.

He also sets forth the two forms of an insanity defense under Colorado law, see id., but he

does not address any portion of the district court’s analysis under § 2254. He therefore

offers nothing to meaningfully impeach the district court’s reasoning.

       Mr. Miera also contends that his counsel was ineffective for failing to seek

suppression of unconstitutionally obtained inculpatory statements. Specifically, he

argues that his statements that he “had taken drugs within days of the shooting” and “did

what he did for a reason” should have been suppressed because they were involuntary

and made after he invoked his right to silence. ROA, Vol. I at 334 (internal quotation

marks omitted). On this issue, the district court again concluded that Mr. Miera failed to

identify any contrary Supreme Court decision; failed to demonstrate that the state court’s

ruling was based on an unreasonable determination of the facts; or that the state court

unreasonably applied Strickland, given that Mr. Miera’s counsel reasoned that his

“videotaped statements were the best evidence available to support the insanity defense.”

Id. at 336. Here, Mr. Miera once again fails to provide any response to the district court’s

                                             6
analysis. In his application for a COA, he cites—without any supporting argument—the

test for ineffective assistance of counsel claims, as set forth in Strickland, see Aplt. Br. at

13, in addition to Colorado cases describing when a confession is involuntary, see id. at

14. He fails to argue, however, that the state court’s resolution of this claim was contrary

to, or an unreasonable application of, Strickland or that the state court’s ruling was based

on an unreasonable determination of the facts.

       Finally, Mr. Miera contends that his counsel was ineffective by failing to object to

admission of prior bad acts. In particular, he contends his counsel should have objected

to testimony from his ex-wife that he threatened to burn their trailer while she and their

children were inside. The district court held that Mr. Miera failed to cite any contrary

Supreme Court decision and failed to show that the state court’s ruling was based on an

unreasonable determination of the facts. ROA, Vol. I at 338. The district court also

reasoned that the state court did not unreasonably apply Strickland because Mr. Miera’s

prior threats of violence showed that he suffered from a mental illness and thus supported

his insanity defense. Id. at 339. Mr. Miera provides no response to the district court’s

reasoning in his application for a COA. He cites several Colorado cases regarding the

introduction of evidence of prior bad acts, generally, see Aplt. Br. at 16–17, but he

provides no analysis of such cases. Nor does he cite to any Supreme Court case or argue

that the state court decision was contrary to, or an unreasonable interpretation of, clearly

established federal law. He also fails to argue that the state court’s ruling was based on

an unreasonable determination of the facts.



                                               7
       Because Mr. Miera fails to demonstrate that the federal district court’s resolution

of his claims was debatable, we have no basis for granting a COA. We also deny his

motion to proceed without prepayment of costs and fees. See DeBardeleben v. Quinlan,

937 F.2d 502, 505 (10th Cir. 1991) (concluding “a reasoned, nonfrivolous argument on

the law and facts in support of the issues raised on appeal” is a prerequisite for leave to

proceed on appeal without prepayment of costs and fees).

                                             IV

       For the foregoing reasons, we DENY Mr. Miera’s request for a COA and

DISMISS this matter. Mr. Miera’s motion to proceed in forma pauperis is also DENIED.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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