                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   February 20, 2008
                   UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                TENTH CIRCUIT



 ADAM VALDEZ,

              Petitioner-Appellant,                     No. 07-3251
       v.                                                 (D. Kansas)
 DAVID R. McKUNE; ATTORNEY                      (D.C. No. 06-CV-3103-JTM)
 GENERAL OF KANSAS,

              Respondents-Appellees.



                                      ORDER


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Adam Valdez, a prisoner in the custody of the Kansas Department of

Corrections, seeks a certificate of appealability (“COA”) to appeal the district

court’s orders (a) denying his 28 U.S.C. § 2254 petition for a writ of habeas

corpus and (b) denying his motion to alter or amend its initial decision. For the

reasons set forth below, we conclude that we lack jurisdiction to review the

district court’s initial order denying Mr. Valdez’s § 2254 petition. As to the

court’s denial of his motion to alter or amend, Mr. Valdez had failed to advance a

colorable argument in support of his contentions of error. We therefore deny Mr.

Valdez’s application for a COA and dismiss this matter.
                                 I. BACKGROUND

      The underlying facts are set forth in the Kansas Supreme Court’s opinion in

State v. Valdez, 977 P.2d 242 (Kan. 1998). Mr. Valdez was charged in the

District Court of Finney County, Kansas with a series of crimes arising out of

death of Juan Ayon on February 4, 1996. Mr. Valdez was seventeen years old at

the time of the alleged offenses. The Finney County court certified Mr. Valdez to

stand trial as an adult, and a jury convicted him of the following offenses:

first-degree premeditated murder (in violation of Kan., Stat § 21-3401(a));

aggravated kidnapping (in violation of Kan. Stat. § 21-3421); conspiracy to

commit murder in the first degree (in violation of Kan. Stat. § 21-3302);

conspiracy to commit aggravated kidnapping (in violation of Kan. Stat. § 21-

3302); aggravated robbery (in violation of Kan. Stat. § 21-3427); and aggravated

battery (in violation of Kan. Stat. § 21-3414(a)(1)(A)).

      The court then imposed a range of sentences: life imprisonment (for

first-degree premeditated murder); ninety-seven months, consecutive to murder

sentence (for aggravated kidnapping); seventy-three months, concurrent with the

kidnapping sentence (for conspiracy to commit murder); forty-nine months,

concurrent with conspiracy to commit murder sentence (for conspiracy to commit

aggravated kidnapping); forty-nine months consecutive to the previous sentences




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(for aggravated robbery); and forty-three months, consecutive to the previous

sentences (for aggravated battery). Mr. Valdez appealed his convictions and

sentences, and the Kansas Supreme Court affirmed. See Valdez, 977 P.2d at

251-262.

       Mr. Valdez then sought post-conviction relief in the Kansas state courts.

The Kansas Court of Appeals concluded that Mr. Valdez’s convictions for

conspiracy to commit first-degree murder and conspiracy to commit aggravated

kidnapping were multiplicitous because they were based on a single continuing

conspiracy. Accordingly, the Court of Appeals reversed Mr. Valdez’s conviction

for conspiracy to commit aggravated kidnapping. Valdez v. State, No. 88,728,

unpublished opinion, filed July 3, 2003. However, the Kansas courts rejected Mr.

Valdez’s other claims.

      Subsequently, Mr. Valdez filed a pro se 28 U.S.C. § 2254 petition in the

federal district court. In that petition, Mr. Valdez asserted that (1) the state

district court erred in certifying him as an adult; (2) the court erred in denying his

motions to acquit; (3) the court erred in admitting the results of DNA testing; (4)

the court erred in ordering a witness, Jose Avalos, to testify at trial after the

witness invoked his Fifth Amendment privilege; (5) the court erred in admitting

evidence of Mr. Valdez’s gang affiliation; (6) the court erred in overruling Mr.

Valdez’s objections to the prosecutor’s closing argument; (7) the court committed

cumulative error; (8) the court erred in imposing a “hard forty” sentence (i.e.,


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forty years without parole); (9) he received ineffective assistance of trial and

appellate counsel; (10) the charging document was constitutionally deficient; (11)

his convictions were based on perjured testimony; and (12) the prosecutor

engaged in misconduct.

      In a May 31, 2007, memorandum opinion and order, the district court

rejected all of Mr. Valdez’s claims. The court applied the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), which provides that habeas

corpus relief is available only if the state court’s decision is “contrary to” or “an

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

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

determination of the facts in light of the evidence presented.” 28 U.S.C. §

2254(d)(2).

      Mr. Valdez did not file a timely appeal of the district court’s May 31, 2007

order. Instead, on June 17, 2007, he submitted a motion to alter or amend

judgment. There, he requested the court to reconsider its decisions as to the

fourth and tenth claims set forth above and as to one of his allegations of

prosecutorial misconduct. On July 26, 2007, the district court denied Mr.

Valdez’s motion to alter or amend. On August 27, 2007, Mr. Valdez filed a

timely notice of appeal of the July 26, 2007 order.




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                                  II. DISCUSSION

       In order to obtain a COA, Mr. Valdez must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Valdez may

make this showing by demonstrating 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.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (internal quotation marks omitted). “[A] claim can be debatable even

though every jurist of reason might agree, after the COA has been granted and the

case has received full consideration, that [the] petitioner will not prevail.” Id. at

338.

                                   A. Jurisdiction

       Initially, we note that we lack jurisdiction to review the district court’s

May 31, 2007 order. Under Rule 4 of the Federal Rules of Appellate Procedure,

Mr. Valdez was required to file a notice of appeal of that ruling “within 30 days

after the judgment or order appealed from is entered.” F ED . R. A PP . P. 4

(a)(1)(A). However, as noted above, Mr. Valdez did not file a notice of appeal

until August 27, 2007, more than thirty days after the district court’s May 31,

2007 order.

       Under Rule 4(a)(4)(A) of the Federal Rules of Appellate Procedure, the

time for filing a notice of appeal may be extended if the appealing party files


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certain types of post-judgment motions in the district court. Those time-

extending motions include motions to alter or amend a judgment under Fed. R.

Civ. P. 59 and motions for relief under Fed. R. Civ. P. 60(b), if the Rule 60

motion “is filed no later than 10 days after the judgment is entered.” FED . R. A PP .

P. 4(a)(4)(A)(iv), (vi). In those instances, the time for filing the notice of appeal

runs from the date that the district court decides the post-judgment motion. F ED .

R. A PP . P. 4(a)(4)(A).

       Here, Mr. Valdez did not file a post-judgment motion within the time

period that would have extended the time for filing a notice of appeal. In

particular, his motion to alter or amend the judgment was filed outside the ten-day

period for filing a Rule 59 motion to alter or amend the judgment and for filing a

Rule 60 motion that would extend the time for filing a notice of appeal. See

Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1241 (10th Cir. 2006) (holding

that an untimely Rule 59(e) motion does not toll the time for filing a notice of

appeal). Accordingly, we lack jurisdiction to review the district court’s May 31,

2007 order, and we may only review the district court’s order denying Mr.

Valdez’s motion to alter or amend judgment.

                       B. Ordering a Witness to Testify at Trial

       In his motion to alter or amend, Mr. Valdez first argued that the trial court

violated his right to a fair trial by ordering a witness, the co-defendant Jose

Avalos, to testify. The Kansas Supreme Court rejected this argument on the


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grounds that Mr. Valdez lacked standing. See Valdez, 977 P.2d at 258 (stating

that “‘[t]he right against self-incrimination is personal to the witness, and the

defendant in a criminal action has no standing to assert the witness’s privilege”).

In the instant habeas corpus proceeding, the federal district court agreed. See

Rec. doc. at 18, at 2 (stating that Mr. Avalos’s initial refusal to testify was based

on his Fifth Amendment rights and that “[t]he privilege against self-incrimination

is solely for the benefit of the witness and is a purely personal privilege of the

witness, not for the protection of other parties”) (quoting United States v. Skolek,

474 F.2d 582, 584 (10th Cir. 1973)).

      Our review of the record indicates that Mr. Avalos, like Mr. Valdez, was

initially charged with the murder of Mr. Ayon and related crimes. Mr. Avalos

entered a guilty plea and agreed with the government to testify at Mr. Valdez’s

trial. However, at the trial, Mr. Avalos’s attorney informed the court that Mr.

Avalos “has told me that he does not wish to testify” and that “I don’t know if

there is a privilege or not.” State Ct. Rec. vol. IX, at 138. In response, the

prosecution argued that it had entered into an agreement with Mr. Avalos under

which he would “take the witness stand, when subpoenaed, and testify truthfully.”

Id. at 147. The prosecution further argued that by giving prior testimony at an

inquisition, Mr. Avalos had waived his Fifth Amendment privilege as to the

matters about which he testified.




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      Upon considering these arguments, the trial judge ruled that “Mr. Avalos

should be and he is hereby ordered to testify.” State Ct. Rec. vol. X, at 10. The

court reasoned that Mr. Avalos “had previously waived his privilege against

self-incrimination by testifying under oath regarding his involvement in the

murder of Ayon at [Mr.] Valdez’s preliminary examination.” Valdez, 977 P.2d at

257 (summarizing the trial court’s ruling). However, the court limited the scope

of his testimony to “statements made to law enforcement, statements made in the

inquisition[,] and any statements that may have been overheard by law

enforcement.” State Ct. Rec. vol. X, at 11.

      After the judge ruled, Mr. Avalos again announced that he would not

testify. The judge asked,, “Are you invoking any privileges at this time, or just

refusing to testify?” Id. at 14 Mr. Avalos responded, “Just refusing.” Id. The

judge then told Mr. Avalos’s attorney to “try to advise him that he needs to

testify.” Id. at 144. The judge added, “[I]f [Mr. Avalos] continues to refuse to

testify, then I will take other measures while he is in custody waiting the Court’s

final sentence . . . for any contempt that he continues to . . . reflect on this Court.”

Id.

      Upon conferring with his attorney, Mr. Avalos changed his mind. His

attorney informed the court that “[Mr. Avalos] can be made to testify

involuntarily and will now do so.” Id. at 152. Mr. Avalos proceeded to testify on

behalf of the state, and his testimony implicated Mr. Valdez in the murder of Mr.


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Ayon and the accompanying crimes. See Valdez, 977 P.2d at 248 (summarizing

Mr. Avalos’s statements).

       In the instant habeas corpus proceeding, we are not entirely persuaded by

the conclusion of the Kansas Supreme Court and the federal district court that

Mr. Valdez lacks standing to challenge the trial judge’s decision to order Mr.

Avalos to testify. As the district court noted, our precedent does state that

“[w]here the witness is not the party, the party may not claim the [Fifth

Amendment privilege against self incrimination] nor take advantage of an error of

the court in overruling it” and that” [t]he party, as contrasted to the witness,

simply lacks standing.” Skolek, 474 F.2d at 584. However, in more recent cases,

we have further noted that a defendant may assert that his right to a fair trial has

been violated by the use of testimony that has been unlawfully compelled from

government witnesses. See Clanton v. Cooper, 129 F.3d 1147, 1157-58 (10th Cir.

1997) (holding that, “because the evidence is unreliable and its use offends the

Constitution, a person may challenge the government’s use against him or her of a

coerced confession given by another person”); see also United States ex rel.

Cunningham v. DeRobertis, 719 F.2d 892, 896 (7th Cir. 1983) (“We conclude

that petitioner is correct about the general proposition that a violation of another’s

Fifth Amendment rights may rise to the level of a violation of his own right to a

fair trial.”).




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      Nevertheless, even assuming that Mr. Valdez has standing to challenge the

trial judge’s ordering Mr. Avalos to testify, we conclude that the denial of that

claim is not debatable among jurists. In particular, Mr. Valdez has failed to make

a colorable argument that Mr. Avalos’s testimony was improperly coerced. He

has not disputed the government’s contention that Mr. Avalos had agreed to

testify, nor does he offer any legal argument challenging the trial court’s ruling

that Mr. Avalos had waived his Fifth Amendment rights by testifying about the

murder in pretrial proceedings. See United States v. Wise, 603 F.2d 1101, 1104

(4th Cir.1979) (agreeing with the district court that a witness had “waived his

[F]ifth [A]mendment privilege by entering into the plea agreement requiring him

to cooperate with the government and by testifying to his participation in the

[crime] when he entered his guilty plea”). Absent any such argument, we discern

no support for Mr. Valdez’s contention that the introduction of Mr. Avalos’s

testimony deprived Mr. Valdez of his right to a fair trial.

                       C. Alleged Prosecutorial Misconduct

      In his motion to alter to amend, Mr. Valdez further argues that the

prosecutor engaged in misconduct by making a deal with one of the government’s

witnesses, Carlos Valencia, and by presenting perjured testimony. For the

reasons set forth by the district court, we conclude that this argument is also not

debatable among reasonable jurists. See Miller-El, 537 U.S. at 336. The record

does not indicate that Mr. Valencia’s testimony regarding an agreement with the


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government was false, that it was material, and that the prosecution knowingly

used perjured testimony. See United States v. Wolny, 133 F.3d 758, 762 (10th

Cir. 1991) (explaining the elements of a due process claim alleging the use of

perjured testimony by the government).

                    D. Allegedly Deficient Charging Document

      Finally, in his motion to alter or amend, Mr. Valdez argues that the count

of the information charging conspiracy to commit first-degree murder was fatally

defective because it did not allege an overt act. Again, we agree with the district

court’s analysis of this claim. In order to obtain habeas relief on this claim, Mr.

Valdez must establish that the charging document failed to provide him with

“adequate notice of the nature and cause of the accusations filed against him.”

Johnson v. Gibson, 169 F.3d 1239, 1252 (10th Cir. 1999). A violation of state

law requirements for charging documents is not sufficient. Id. Here, the

information provided sufficient notice of the charge.

                                III. CONCLUSION

      Accordingly, we DENY Mr. Valdez’s application for a COA and DISMISS

this matter. Appellant’s motion to file a supplemental brief is GRANTED.

                                 Entered for the Court,




                                 Elisabeth A. Shumaker
                                 Clerk of Court

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