                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS February 4, 2009
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



    JASON ALAN CAPPELLI,

                Petitioner-Appellant,

    v.                                                  No. 07-1231
                                                (D.C. No. 04-cv-01235-WYD)
    JOE ORTIZ, Executive Director;                        (D. Colo.)
    COLORADO ATTORNEY
    GENERAL,

                Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BALDOCK, BRORBY, and EBEL, Circuit Judges. **


         Jason Alan Cappelli, a Colorado state prisoner appearing with counsel,

seeks a certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c) to

appeal the district court’s denial of his application for a writ of habeas corpus

under 28 U.S.C. § 2254. Issuance of a COA is jurisdictional. Miller-El v.




*
       This order is not binding precedent except under the doctrines of law of the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.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Cockrell, 537 U.S. 322, 336 (2003). A COA can issue “only if the applicant has

made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.” Miller-El, 537 U.S. at 327. Having carefully

considered Mr. Cappelli’s application for a COA, we deny his application and

dismiss this matter.

                                   I. Background

      A. Factual and Procedural History.

      In its order denying Mr. Cappelli’s habeas application, the district court

summarized the factual evidence presented at Mr. Cappelli’s trial and the

procedural background of this case as follows:

             On May 24, 1999, Mr. Cappelli drove to a Blockbuster Video
      Store in Lakewood, Colorado. While in the store, he had a verbal
      confrontation with the store manager, Lacey Turnbow, who asked
      him to leave the store. Mr. Cappelli got into his truck, but had
      difficulty backing out of his parking space because a car was in the
      way. Mr. Cappelli honked his horn and began yelling at the driver of
      the other vehicle, Jonathan Rivers. Both drivers got out of their
      vehicles. Mr. Cappelli ran up to the other driver and kicked him in
      the chest several times, knocking him off his feet and back into the
      driver’s side doorway of his vehicle. When the passenger in
      Mr. River[s’] car, Jose Aguirre, got out to help Mr. Rivers,
      Mr. Cappelli tried to kick him but missed. Mr. Cappelli then chased
      both Mr. Rivers and Mr. Aguirre around Mr. Rivers’ car.



                                          -2-
             At that point, Lacey Turnbow and her sister Charlotte
      Turnbow, who happened to be visiting her sister at the time, followed
      Mr. Cappelli out of the store to make sure he left, and Lacey
      Turnbow attempted to intervene. When Mr. Cappelli threatened her,
      she ran back into the store to call the police. Mr. Cappelli got back
      into his truck and parked it next to Mr. Rivers’ car. He got out of his
      truck and tried to punch Mr. Aguirre, retrieved a bottle of motor oil
      from his truck, and poured oil over the exterior and throughout the
      interior of Mr. Rivers’ car. Mr. Cappelli then drove away.

             On May 26, 1999, Mr. Cappelli was charged in Jefferson
      County District Court Case No. 99CR1378 with criminal mischief,
      causing damage of between $4,500 and $15,000 (class-four felony);
      third-degree assault as to victim Mr. Rivers (class-one misdemeanor);
      attempted third-degree assault as to victim Mr. Aguirre (class-two
      misdemeanor); and menacing as to victim Lacey Turnbow
      (class-three misdemeanor). On January 13, 2000, Mr. Cappelli was
      convicted by a jury on all four charges. He was sentenced to
      concurrent prison terms totaling twelve years. Mr. Cappelli’s
      conviction was affirmed on direct appeal. People v. Cappelli,
      No. 00CA808 (Colo. Ct. App. Oct. 24, 2002) (not selected for
      publication). On March 17, 2003, the Colorado Supreme Court
      denied certiorari review. . . .

             On June 15, 2004, Mr. Cappelli filed the instant action and, on
      the same day, filed a postconviction motion pursuant to Rule 35(c) of
      the Colorado Rules of Criminal Procedure in the Jefferson County
      District Court . . . . On August 16, 2004, the trial court denied the
      motion. On October 5, 2006, the Colorado Court of Appeals
      affirmed. People v. Cappelli, No. 04CA1682 (Colo. Ct. App. Oct. 5,
      2006). [On February 26, 2007, the Colorado Supreme Court denied
      certiorari review.]

Cappelli v. Ortiz, 2007 WL 646287, at *1 (D. Colo. Feb. 28, 2007).

      B. Pertinent Trial Testimony.

      In their answer to Mr. Cappelli’s habeas application, respondents accurately

summarized the trial testimony that is pertinent to this appeal as follows:


                                         -3-
             During his testimony [on cross-examination], victim Rivers
      admitted that he was on probation [under a deferred judgment and
      sentence entered in Arapahoe County District Court] for sexual
      assault on a child, that his probation had been extended, and that one
      of the terms of his probation was that he not commit any other
      criminal offenses.

             The defendant called Rivers’s probation officer [to testify as a
      witness on his behalf in his case-in-chief] in order to establish that
      Rivers had a motive to fabricate certain portions of his testimony.
      The officer admitted that if Rivers had assaulted someone or had
      given false information to a police officer, that his probation could
      be terminated. Through this witness, defense counsel also attempted
      to establish that Rivers had been criminally charged with sidewalk
      peddling a week after the incident with Cappelli. However, the trial
      court sustained the prosecutor’s objection that this evidence was not
      relevant.

             On cross-examination, the prosecutor asked whether Rivers
      had been an “exemplary probationer,” and the probation officer
      replied that he had been “overall compliant [with the terms of his
      probation].” The probation officer also answered affirmatively to the
      prosecutor’s question whether, between August of 1995 and May 24,
      1999 (the date of the incident[] in this case), Rivers had complied
      with his probationary terms. The prosecutor then asked whether the
      probation officer had seen any reason “since that period of time” to
      revoke Rivers’s probation, and the officer confirmed that she had
      seen no such reason.

             At that point, defense counsel in a bench conference took issue
      with the probation officer’s claim that Rivers had been an exemplary
      probationer in light of defense counsel’s information that Rivers had
      been criminally charged for sidewalk peddling [a week after the
      incident with Cappelli]. The trial court agreed that the way the
      prosecutor had phrased the cross-examination might have caused a
      misimpression. Cappelli agreed to the court’s proposed remedy – to
      clarify that the probation officer’s testimony about Rivers’s
      compliance with his probationary terms applied only to his conduct
      through May 24, 1999, and not after that date.

Aplt. App., Vol. I at 23-24 (citations omitted; fourth alteration in original).

                                          -4-
                                    II. Analysis

      Mr. Cappelli claims that he is entitled to federal habeas relief because his

convictions were obtained in violation of his Sixth Amendment right to confront

the witnesses against him. Specifically, he argues that his confrontation rights

were violated during his case-in-chief because the trial court prohibited him from

questioning Mr. Rivers’ probation officer, Cheryl Boller, about two criminal

charges for sidewalk peddling that were filed against Mr. Rivers a week after the

incident in this case. According to Mr. Cappelli, the trial court thereby prevented

him from rebutting Ms. Boller’s testimony during cross-examination by the

prosecution that Mr. Rivers was an exemplary probationer. As noted by the

district court, Mr. Cappelli “also alleges that Ms. Boller had signed a petition to

revoke Mr. Rivers’ probation [in August 1999; see Aplt. App., Vol. I at 114-19],

which was pending at the time of trial, to support his theory that because

Mr. Rivers was facing the possible revocation of his probation he had a motive to

fabricate certain portions of his [trial] testimony.” Cappelli, 2007 WL 646287, at

*3.

      With regard to the latter allegation, Mr. Cappelli’s trial counsel was not

aware at the time of Mr. Cappelli’s trial in January 2000 that Ms. Boller had filed

a petition to revoke Mr. Rivers’ probation a couple of months after the incident

with Mr. Cappelli, and the existence of the petition to revoke was not disclosed at




                                         -5-
any time during the trial. 1 As a result, Mr. Cappelli’s trial counsel did not attempt

to offer it into evidence at any point during the trial, and the trial court never

affirmatively excluded it from the trial. Hence, it cannot be relied on now to

support a Confrontation Clause claim. 2 Cf. Pennsylvania v. Ritchie, 480 U.S. 39,

52 (1987) (holding that “the right to confrontation is a trial right, designed to

prevent improper restrictions on the types of questions that defense counsel may

ask during cross-examination,” and it does not create a right to pretrial

discovery). 3

      With regard to the trial court’s refusal to allow Mr. Cappelli’s trial counsel

to question Ms. Boller in Mr. Cappelli’s case-in-chief about the sidewalk peddling

charges that were filed against Mr. Rivers, Mr. Cappelli’s challenge to the



1
       In Mr. Cappelli’s opening brief, his counsel states that he first learned of
the filing of the petition to revoke Mr. Rivers’ probation while he was preparing
the habeas application in this case. See Aplt. Opening Br. at 3-4.
2
       Although we are in no way indicating that any such claims would be
meritorious, we note that Mr. Cappelli’s trial counsel’s lack of knowledge about
the filing of the petition to revoke Mr. Rivers’ probation could form the basis for
potential claims under Brady v. Maryland, 373 U.S. 83 (1963) (failure of
prosecution to produce exculpatory evidence) and/or Strickland v. Washington,
466 U.S. 668 (1984) (ineffective assistance of counsel). However, Mr. Cappelli
has abandoned the Brady claim that he asserted in the district court proceedings,
see Cappelli, 2007 WL 646287, at *4-5, and he has never asserted a Strickland
claim in this case.
3
      As the Supreme Court further explained in Ritchie, “[t]he ability to
question adverse witnesses . . . does not include the power to require the pretrial
disclosure of any and all information that might be useful in contradicting
unfavorable testimony.” 480 U.S. at 53.

                                          -6-
exclusion of this evidence raises both Confrontation Clause issues and issues

regarding his due process right to present defense-witness testimony. Although

these issues overlap, they raise distinct claims that must be analyzed separately,

and we will first analyze the Confrontation Clause issues.

      At trial, Ms. Boller arguably testified adversely to Mr. Cappelli when she

testified during cross-examination by the prosecution that Mr. Rivers was a model

probationer. Assuming, without deciding, that this was in fact adverse testimony,

and that the trial court erred in limiting Ms. Boller’s testimony to events that

occurred prior to the altercation between Mr. Cappelli and Mr. Rivers, then,

arguably, Mr. Cappelli had a Sixth Amendment right under the Confrontation

Clause to confront Ms. Boller with the sidewalk peddling charges in order to

impeach her testimony. See Chambers v. Mississippi, 410 U.S. 284, 297-98

(1973) (“The availability of the right to confront and to cross-examine those who

give damaging testimony against the accused has never been held to depend on

whether the witness was initially put on the stand by the accused or by the

State.”); Wasko v. Singletary, 966 F.2d 1377, 1381 (11th Cir. 1992) (“The sixth

amendment right to cross-examination is not strictly limited to the confrontation

of witnesses called by the state; it also extends to defense witnesses who testify

adversely to the defendant.”).

      Even if the trial court’s limitation on the examination of Ms. Boller

violated Mr. Cappelli’s Confrontation Clause rights, however, the limitation is

                                          -7-
subject to harmless error review. See Jones v. Gibson, 206 F.3d 946, 957

(10th Cir. 2000). Further, when a federal court is faced with a Confrontation

Clause violation in a habeas case brought by a state prisoner under 28 U.S.C.

§ 2254, the relevant harmless error analysis is whether the error “‘had substantial

and injurious effect or influence in determining the jury’s verdict.’” Id. (quoting

Brecht v. Abrahamson, 507 U.S. 619, 623, 637-38 (1993)); see also Fry v. Pliler,

551 U.S. 112, 127 S. Ct. 2321, 2328 (2007) (“We hold that in § 2254 proceedings

a court must assess the prejudicial impact of constitutional error in a state-court

criminal trial under the ‘substantial and injurious effect’ [harmless error] standard

set forth in Brecht . . . .”).

       Applying the Brecht standard, we agree with respondents that, at best, the

trial court committed only harmless error when it prohibited Mr. Cappelli’s trial

counsel from questioning Ms. Boller about Mr. Rivers’ sidewalk peddling

charges. As succinctly explained by respondents in their answer to Mr. Cappelli’s

habeas application:

              As discussed above, there was no complete denial of
       opportunity to establish Rivers’s bias and motive from his
       probationary status. Furthermore, Rivers was not the only witness to
       establish the commission of the offenses. In addition to Rivers, two
       other eyewitnesses, Lacey and Charlotte Turnbow, testified at trial.
       Even if Rivers had been further impeached [through the testimony of
       Cheryl Boller], this would not have affected the credibility of the
       Turnbows, who also testified to the assault against Rivers, to the
       threat to kill or harm Lacey Turnbow (the basis of the misdemeanor
       menacing conviction), and to the facts establishing the one felony


                                          -8-
      charge of criminal mischief, causing damage of between $4,500 and
      $15,000.

             Because the charges in this case were established by ample
      evidence of Cappelli’s guilt by witnesses independent of Rivers,
      additional impeachment of Rivers [through the testimony of Cheryl
      Boller] would not have had a substantial and injurious effect or
      influence in determining the jury’s verdict.

Aplt. App., Vol. I at 27 (citation and footnote omitted).

      Next, consistent with the approach taken by the district court in its order

denying Mr. Cappelli’s habeas application, see Cappelli, 2007 WL 646287,

at *3-4, the limitations imposed by the trial court on Mr. Cappelli’s examination

of Ms. Boller can arguably be viewed as a denial of his due process right to

present defense-witness testimony, see Richmond v. Embry, 122 F.3d 866, 870-71

(10th Cir. 1997) (declining, in habeas case brought under 28 U.S.C. § 2254, to

treat state trial court’s exclusion of favorable testimony from defense witness in

defendant’s case-in-chief as Confrontation Clause issue and instead construing

defendant’s claim to be based on an alleged violation of his due process right to

present defense-witness testimony). “The right to offer the testimony of

witnesses, and to compel their attendance, if necessary, is in plain terms the right

to present a defense. . . . This right is a fundamental element of due process of

law.” Id. at 871 (quotation omitted). In order to succeed on this claim, however,

Mr. Cappelli must show a denial of fundamental fairness, an extremely difficult

showing to make. As we explained in Richmond:


                                         -9-
             Additionally, to establish a violation of the right to compulsory
      process, a fair trial or due process, a defendant must show a denial of
      fundamental fairness: In order to declare a denial of [fundamental
      fairness] we must find that the absence of that fairness fatally
      infected the trial; the acts complained of must be of such quality as
      necessarily prevents a fair trial. It is the materiality of the excluded
      evidence to the presentation of the defense that determines whether a
      petitioner has been deprived of a fundamentally fair trial. Evidence
      is material if its suppression might have affected the trial’s outcome.
      In other words, material evidence is that which is exculpatory–
      evidence that if admitted would create reasonable doubt that did not
      exist without the evidence.

Id. at 872 (quotations and citations omitted; alteration in original).

      Applying these standards, we conclude that Mr. Cappelli was not denied

fundamental fairness when the trial court prohibited his trial counsel from

questioning Ms. Boller about Mr. Rivers’ sidewalk peddling charges. Simply put,

we are confident that the exclusion of that evidence did not affect the outcome of

Mr. Cappelli’s trial.

      The application for a COA is DENIED and this matter is DISMISSED.


                                                 Entered for the Court


                                                 Bobby R. Baldock
                                                 Circuit Judge




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