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

                                      TENTH CIRCUIT                               January 10, 2014

                                                                                Elisabeth A. Shumaker
                                                                                    Clerk of Court
JOSE ARTURO PENA,

                Petitioner - Appellant,

v.                                                               No. 12-1298
                                                       (D.C. No. 1:10-CV-02476-WYD)
WARDEN STEVE HARTLEY; THE                                         (D. Colo.)
ATTORNEY GENERAL OF THE STATE
OF COLORADO,

                Respondents – Appellees.




     ORDER DENYING CERTIFICATE OF APPEALABILITY AND OTHER
            REQUESTED RELIEF AND DISMISSING APPEAL


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


       Jose Pena, a Colorado state prisoner, wants to appeal from the district court’s

denial of his 28 U.S.C. § 2254 habeas petition. The district court also denied his request

for a certificate of appealability (COA) and his application to proceed on appeal without

prepayment of fees (in forma pauperis or ifp). 28 U.S.C. § 1915(a). He renews those

requests with this court.

       Pena was convicted of sexual assault on a child in Weld County, Colorado.1 He



       1
           C.Z., the juvenile female (age 14), reported the sexual assault in August 1992.
                                                                               (Continued . . .)
appealed to the Colorado Court of Appeals for relief, claiming essential elements of the

charge−his age and that of his victim−was established only by inadmissible evidence,

which violated his right to confront witnesses. The Colorado Court of Appeals affirmed

the conviction for sexual assault. People v. Pena, No. 03CA0892 (Colo. App. Jan. 5,

2006) (unpublished). The Colorado Supreme Court granted his petition for writ of

certiorari and decided the forfeiture by wrongdoing doctrine defeated his confrontation

claim and, in any event, the statements were admissible as a matter of law. Pena v.

People, 173 P.3d 1107, 1113 (Colo. 2007). The court said:

       Adjudicated facts from the murder proceeding establish that Pena killed the
       victim with the motive to silence her as a witness. Furthermore, the verdict
       in the murder trial, rendered beyond a reasonable doubt, more than satisfies
       the preponderance of the evidence standard required for a finding of
       forfeiture in this case. Finally, in light of the murder verdict and the
       requisite finding of intent, the absence of a pretrial evidentiary hearing to
       address the forfeiture issue constitutes harmless error.

Id. at 1111.




Pena (age 18) was charged in October 1992. Following the charge, C.Z. disappeared.
The day after her disappearance, Pena’s parents sold his truck. Pena left for Mexico five
days later. Several days after he left, C.Z.’s body was found. Pena was charged with her
murder in September 1993. However, he remained at large until he was apprehended in
2001 at a random traffic checkpoint in New Mexico. He was using an alias when
arrested, but was later correctly identified. He was returned to Colorado where he was
tried and convicted of murder in Adams County and then tried and convicted of sexual
assault in Weld County. While his appeal on the sexual assault charge was pending, his
murder conviction was affirmed by the Court of Appeals. People v. Pena, No.
02CA0413 (Colo. App. Oct. 13, 2005) (unpublished).
       In addition to this habeas petition Pena filed one relating to his murder conviction,
which, like this one, was denied by the district court. His request for a COA from the
denial of that habeas petition is pending in this court.


                                            -2-
       Pena filed a Colo. R. Crim. P. 35(c) motion for post-conviction relief in which he

made several claims of ineffective trial counsel. He also claimed the admission at trial of

the victim’s testimonial statements to family members, police, and medical professionals

violated his right to confront witnesses. The Colorado Court of Appeals denied his

request for post-conviction relief and his petition for rehearing.

       Pena filed a pro se § 2254 petition in the United States District Court of Colorado.

He did not challenge the Colorado Supreme Court’s factual findings or the application of

forfeiture by wrongdoing. Instead, he argued the victim’s statements were testimonial,

and therefore violated his right to confront the witness. Upon Pena’s motion, the district

judge appointed counsel2 but ultimately denied his claim. (R. at 497.) He also denied a

COA and leave to proceed ifp on appeal. See 28 U.S.C. § 1915(a)(3).

       Pena, pro se, filed a notice of appeal, a request for a COA, and an application to

proceed without prepayment of fees on appeal. Through counsel, he filed a brief in

support of his request for a COA. We may issue a COA only if Pena first makes a

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

can do so only by showing “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



       2
         After Pena filed his habeas petition, he moved for appointment of counsel.
Shortly thereafter he supplemented his motion, asking the court to appoint the state public
defender who had represented him on his direct appeal (she had since moved to the
federal public defender’s office). The district judge appointed the federal public defender
and his prior attorney was assigned to represent him in this habeas proceeding. That
occurred approximately one year before the trial judge issued the final order.


                                            -3-
presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

       Pena raises one issue on appeal:3

       The state court acted unreasonably in determining the threshold facts
       required to bar Mr. Pena’s confrontation claim since: (1) there is no
       evidence in this case that supports a finding that he acted with the requisite
       intent to prevent the witness from testifying; and (2) there is no
       ‘adjudicated fact’ anywhere that supports such a finding. Absent a
       legitimate factual finding of the required intent, Mr. Pena’s confrontation
       claim cannot be deemed forfeited.

(Petitioner’s Br. at 13-14.)

       We decline to address this argument because neither Pena, nor his appointed

attorney, raised it in the district court. Indeed, the district judge specifically recognized

the Colorado Supreme Court’s determination of this issue was not challenged in Pena’s

§2254 petition.4 Pena’s brief in support of a COA makes no argument explaining why


       3
         Prior to filing her opening brief, Pena’s current appellate counsel (now in private
practice) moved this court to remand the case to the district court, apparently for the
purpose of presenting to that court the issue raised for the first time in briefs to this court.
We denied the motion to remand. She also moved to be appointed as counsel in this
matter. We denied her request but permitted her to represent Pena pro bono if she chose
to do so. She subsequently entered her appearance and filed a brief.
       4
           The district judge wrote:
       The state courts’ factual findings that Applicant murdered the victim in
       order to silence her are presumed correct in this federal habeas proceeding.
       Applicant does not challenge those factual findings here. Instead, he
       focuses his arguments on whether the admitted out-of-court statements
       were testimonial. However, that issue begs the question of whether the
       state courts’ application of the forfeiture doctrine was consistent with
       controlling federal law. At the time Crawford and Davis were decided, the
       jury’s verdict convicting Applicant of murdering the victim was sufficient
       to meet the State’s burden of proof to establish a forfeiture of Applicant’s
                                                                             (Continued . . .)

                                              -4-
we should ignore our settled rule. Parker v. Scott, 394 F.3d 1302, 1309 n.1 (10th Cir.

2005) (citing Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000) (“Petitioner did not

make this argument in his revised habeas petition. Thus, this court need not consider

it.”); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999) (“[W]e will generally not

consider issues raised on appeal that were not first presented to the district court.”)

(internal citation omitted).

       Pena has not presented a reviewable issue. We DENY a COA, DENY his motion

to proceed without prepayment of fees, and DISMISS this appeal. 5

                                           Entered by the Court:

                                           Terrence L. O’Brien
                                           United States Circuit Judge




       Sixth Amendment confrontation rights.
(R. at 496-97.)
       5
        Pena is liable for the entire filing and docketing fee even though his appeal is
dismissed. See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of
appeal does not relieve a party from the responsibility to pay the appellate filing fee).


                                             -5-
