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

                                      TENTH CIRCUIT                        November 25, 2015

                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court

    TRAVIS RYAN ROWLEY,

          Plaintiff - Appellant,

    v.                                                        No. 15-2010
                                                           (D. New Mexico)
    ADP DETECTIVE KEVIN MORANT;                   (D.C. No. 1:10-CV-01182-WJ-GBW)
    ADP DETECTIVE MICHAEL FOX;
    ADP DETECTIVE FRANK FLORES;
    CHIEF OF POLICE RAY SCHULTZ;
    CITY OF ALBUQUERQUE; JASON
    MORALES,

          Defendants - Appellees.



                                   ORDER AND JUDGMENT*


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


         Albuquerque detectives arrested Travis Rowley on murder charges. But after

DNA evidence implicated another man, who admitted to the killings, the prosecution

dropped all charges against Rowley. He then sued the detectives, alleging that they




*
  This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
arrested him without probable cause based largely on an unlawful and false confession.

The district court granted summary judgment against him.

       Rowley raises three claims of error on appeal: (1) the district court improperly

decided that a pretrial ruling in his criminal case precluded his claim that his confession

was coerced; (2) the district court improperly barred his Miranda claim as untimely; and

(3) the district court improperly excluded testimony by his expert that the videotape of his

confession was tampered with. We reject each claim.

I.     BACKGROUND

       On Sunday, December 2, 2007, Rowley arrived in Albuquerque with a group of

traveling door-to-door magazine salespeople. Over the next three days, Rowley sold

magazines throughout Albuquerque, including the neighborhood of Pung and Tak Yi. On

December 4 the Yis were discovered murdered inside their home. An autopsy later

revealed that they had probably been murdered on December 3.

       A neighbor of the Yis helped police create a composite sketch of a suspicious

person who had come to his door on December 3. Local TV stations broadcast the image

on December 5, and on December 6 a tip led Rio Rancho police to Rowley, who was

selling magazines in Rio Rancho. Rowley told them that he had been selling throughout

Albuquerque for the past three days. Without being prompted by any questions

concerning the Yis, Rowley volunteered that he knew the officers were there to question

him about the murder and that he had been in their neighborhood. Rio Rancho police


                                              2
shared this information and a photo of Rowley with the homicide division of the

Albuquerque Police Department (APD).

       That afternoon and the next day, APD homicide detectives, including Kevin

Morant, Michael Fox, and Frank Flores (Defendants), interrogated Rowley. As the

questioning went on, Rowley’s statements grew increasingly inculpatory. Initially,

Rowley denied any knowledge of the crime, saying he “was not there.” Aplt. App.,

Vol. 2 at 41. After further interrogation, he stated that he witnessed his sales partner,

Mike Lee, murder the Yis. Still later, he claimed to have struck Mr. Yi before his death.

Rowley also offered nonpublic details about the crime scene that resembled what had

been found. Defendants arrested Rowley on December 8, 2007. He was incarcerated for

16 months.

       In July 2008 a laboratory matched DNA taken from under Mr. Yi’s fingernail to

one Clifton Bloomfield. Bloomfield, already incarcerated on separate murder charges,

confessed to killing the Yis. The prosecution filed a nolle prosequi in the Rowley case

on March 11, 2009. A month earlier the state criminal court had denied a motion by

Rowley to suppress his statements to Defendants as involuntary.

       On December 10, 2010, Rowley filed a civil complaint against Defendants. He

alleged that they lacked probable cause to arrest him, particularly because the strongest

evidence against him—his confession—had been coerced and differed in many respects

from the actual details of the crime. Rowley later sought to amend his complaint to

allege that Defendants violated his Miranda rights, and he further alleged that police had
                                              3
doctored the recordings of his interrogation to remove the evidence of the Miranda

violation.

       The district court granted summary judgment to Defendants. The court ruled that

the state court’s earlier decision to admit Rowley’s confession into evidence precluded

Rowley from arguing that his confession was coerced. The court also rejected as

untimely Rowley’s request to allege a Miranda violation and excluded purportedly expert

evidence proffered by Rowley to show the alleged doctoring of the interrogation

recordings.

II.    DISCUSSION

       A.     Coercion/Issue Preclusion

       In general, the doctrine of issue preclusion promotes judicial economy by

precluding parties from relitigating an issue that they have already litigated

unsuccessfully. But the particular rules governing the applicability of issue preclusion

may vary somewhat from jurisdiction to jurisdiction. Under the full-faith-and-credit

statute, 28 U.S.C. § 1738, federal courts give a state-court ruling the preclusive effect it

has in the state where it was rendered. See Nichols v. Bd. of Cnty. Comm’rs, 506 F.3d

962, 967 (10th Cir. 2007).

       The district court held that under New Mexico issue-preclusion law Rowley’s

coerced-confession claim was barred by the state criminal court’s denial of his motion to

suppress his confession. It particularly relied on a New Mexico Court of Appeals

decision, Albuquerque Police Department v. Martinez (In re Forfeiture of Fourteen
                                              4
Thousand Six Hundred Thirty Nine Dollars ($14,639) in U.S. Currency in Various

Denominations & Two (2) Digital Pagers), 902 P.2d 563 (N.M. Ct. App. 1995), which

addressed a very similar issue. In Forfeiture, police taking inventory of a crashed vehicle

opened a closed duffle bag within the car and found cash and narcotics. See id. at 564–

65. In the ensuing criminal proceeding against the driver, the trial court ruled the search

unconstitutional, suppressed the evidence, and entered an order releasing all

noncontraband evidence to the defendant. See id. at 565. Meanwhile, the police

department had filed a petition for forfeiture of the money. The court dismissed the

petition, concluding that it was precluded by the criminal case. See id. The court of

appeals affirmed, writing that “we have no hesitation in giving collateral estoppel effect

in a forfeiture proceeding to a prior decision on a motion to suppress in a criminal

proceeding.” Id. at 569–70.

       Forfeiture is not binding on us because it is not a decision of New Mexico’s

highest court. See Am. Cas. Co. of Reading Pa. v. Health Care Indem., Inc., 520 F.3d

1131, 1138 (10th Cir. 2008). But “we always have viewed intermediate state court

opinions as indicia of the leanings of the state’s highest court and have followed suit

unless other authority convinces us that the state supreme court would decide otherwise.”

Daigle v. Shell Oil Co., 972 F.2d 1527, 1543 (10th Cir. 1992) (brackets and internal

quotation marks omitted). Absent any precedent or compelling argument to the contrary,

we therefore infer that Forfeiture reflects what the New Mexico Supreme Court would

have decided.
                                             5
       Rowley’s opening brief on appeal presents no such precedent or argument. First,

he argues that the issue in the criminal proceeding was not the same as the issue here.

But he is wrong. Just as in this case, the question at the suppression hearing was whether

the government could show by a preponderance of the evidence that his confession was

voluntary. See State v. Setser, 932 P.2d 484, 486 (N.M. 1997).

       Next, he argues that the state-court ruling on his motion to suppress is not binding

here because it was not a final judgment. But he cites no New Mexico case law in

support of the asserted final-judgment requirement. He also makes no attempt to

distinguish Forfeiture, which similarly gave preclusive effect to a ruling on a motion to

suppress.1

       In his reply brief Rowley argues that Forfeiture is distinguishable because in that

case the government could have appealed as of right whereas Rowley would have had to

obtain a certification from the state trial court in order to appeal. Perhaps this is a

meaningful distinction (and perhaps, although not argued by Rowley, it also matters that

had Rowley appealed the suppression ruling that appeal would not have been decided

before the nolle prosequi issued the next month). But an argument made for the first time

in a reply brief comes too late. See Wheeler v. Comm’r, 521 F.3d 1289, 1291 (10th Cir.

2008). If Rowley wished to challenge the district court’s reasoning, he had to do so in his

opening brief; but he does not even mention, much less distinguish, Forfeiture there.

1
 Rowley also argues that he is not precluded here because he did not have a full and fair
opportunity to litigate the matter in state court, but he expressly limits this argument to
his Miranda claim.
                                               6
Rather, the only possible suggestion in his opening brief of an appealability requirement

is a one-sentence parenthetical to an out-of-circuit citation in a footnote. See Aplt. Br. at

25 n.51. That will not do. See United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir.

2002) (“Arguments raised in a perfunctory manner, such as in a footnote, are waived.”).

Further, the footnote does not deal with the district court’s statements that no New

Mexico case has held that a ruling must be appealable to have preclusive effect and that

Rowley could have sought permission for an interlocutory appeal of the suppression

ruling. In short, Rowley’s opening brief is inadequate to preserve any challenge to the

application of Forfeiture to his case. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664,

679 (10th Cir. 1998); United States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995)

(“A litigant who mentions a point in passing but fails to press it by supporting it with

pertinent authority forfeits the point.” (ellipsis and internal quotation marks omitted)).

       B.     Miranda/Expert Witness

       Rowley claims that at one point during his interrogation he requested an attorney.

After such a request an accused “is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.” Maryland v. Shatzer, 559

U.S. 98, 104 (2010) (internal quotation marks omitted). The prohibition against police-

initiated interrogation lasts for 14 days. See id. at 109–110. Rowley alleges, however,

that Defendants merely took a short break and then resumed their questioning. Police

recordings of Rowley’s interrogation do not reflect a request for counsel.
                                              7
       Rowley first mentioned his Miranda claim in his response to Defendants’

summary-judgment motion. The district court properly treated this new allegation as a

request to amend the complaint. See Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir.

2003) (“[O]ur cases interpret the inclusion of new allegations in a response to a motion

for summary judgment, as a potential request to amend the complaint.”). Noting that

“[d]iscovery and dispositive motions deadlines have long since passed” and that “there is

no excuse for failing to raise this claim earlier,” the district court denied the request to

amend as untimely. Aplt. App., Vol. 3 at 362.2

       We review the district court’s denial of a motion to amend under the abuse-of-

discretion standard. Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893 F.2d 1182,

1185 (10th Cir. 1990). There was no abuse here. “Untimeliness alone may be a

sufficient basis for denial of leave to amend”; and factors informing the timeliness

inquiry include “whether the request was unduly and inexplicably delayed” and whether

“the party had sufficient opportunity to state a claim and failed.” Id. (internal quotation

marks omitted). Rowley’s counsel (who represented him in the criminal case as well as

this one) knew of his alleged request for counsel by the time of the state-court

suppression hearing in February 2009, when Rowley testified that there “was one point in


2
  The court also denied Rowley’s Miranda claim on the ground that it would be
precluded by the state court’s denial of his motion to suppress his confession. We need
not address this alternative ground, because we affirm the untimeliness ruling. See Kirch
v. Embarq Mgmt. Co., 702 F.3d 1245, 1249 (10th Cir. 2012) (“[A]lthough the district
court relied on consent as an alternative ground for summary judgment, we need not
consider the issue because we [affirm on the principal ground].”).
                                               8
the statement that I kind of got upset, and I said that I wanted to stop talking to them, and

that I thought it was time to get a lawyer.” Aplt. App., Vol. 3 at 259. And in his October

2013 deposition in the civil case, Rowley again testified in the presence of his counsel

that he had requested an attorney during the interrogation. But Rowley did not seek to

amend his complaint until April 2014.

       The only possible (and faintly argued) reason for delay is that Defendant was

deterred from raising a Miranda claim because the video of his interrogation contradicted

his memory of a request for counsel and he raised the claim only after realizing that the

video had been tampered with. But the district court gave Rowley 90 days to produce

expert evidence to support the tampering claim in a motion to reconsider, and he failed to

deliver. Although he presented an affidavit from Jerry Goffe, who represented himself as

a “forensic video examiner,” the court was unpersuaded of his expertise. Id., Vol. 4 at 1.

All Rowley says in opposition to the court’s ruling is that the court failed to appreciate

“Mr. Goffe’s decades of courtroom experience as a forensic video analyst dealing with

the same issues or how his simple observations absolutely refute the notions advanced by

the inexperienced Mr. Bennett [Defendants’ expert].” Aplt. Br. at 28. Rowley ignores

the court’s explanation (1) that Goffe was “basically a court videographer. . . [with] no

certifications, background or experience in information technology,” Aplt. App., Vol. 4 at

456; (2) that Goffe “merely viewed the recordings and compared them to the audio

recording and transcript,” which the court could have done just as well, id. at 455; and (3)

that “had Mr. Goffe made the most basic inquiry, [readily available facts] would have
                                              9
precluded him from coming to any of the conclusions he made,” id. at 459. We can

hardly say that the court abused its discretion in failing to credit Goffe as an expert. See

Dodge v. Cotter Corp., 328 F.3d 1212, 1223 (10th Cir. 2003) (absent challenge to

whether the district court applied the proper standard and performed its gatekeeper role,

review of exclusion of expert testimony is for abuse of discretion). There remains no

reason to overturn the district court’s rejection of the attempt to add a Miranda claim.

       We therefore affirm the district court’s denial of Rowley’s request to amend. See

Las Vegas Ice & Cold Storage, 893 F.2d at 1185; Frank v. U.S. West, Inc., 3 F.3d 1357,

1365–66 (10th Cir. 1993).

III.   CONCLUSION

       We AFFIRM the district court’s grant of summary judgment and denial of

Rowley’s motion to amend. We GRANT Rowley’s motion to file a supplemental

appendix.

                                           ENTERED FOR THE COURT


                                           Harris L Hartz
                                           Circuit Judge




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