                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       October 25, 2007
                         UNITED STATES COURT OF APPEALS
                                                       Elisabeth A. Shumaker
                                                           Clerk of Court
                                  TENTH CIRCUIT



 VERNELL MITCHELL,

           Petitioner-Appellant,
 v.                                                           No. 07-1147
 GARY WATKINS, Warden, L.C.F.;                    (D.C. No. 03-cv-01265-WDM-BNB)
 COLORADO ATTORNEY GENERAL,                                  (D. Colorado)

           Respondents-Appellees.




                                   ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

       Vernell Mitchell, a Colorado prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28 U.S.C. §




       *
        This order and judgment is not binding precedent, except under the doctrines of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.
2254 petition for federal habeas relief. We grant Mitchell’s application in part and deny it

in part, and affirm the district court’s denial of federal habeas relief with respect to the

two claims on which we grant COA.

                                                   I.

          In 1989, Mitchell was convicted in Colorado state court on two counts of first

degree murder for the 1978 shooting deaths of his ex-girlfriend and a male companion,

and was sentenced to consecutive life terms. Mitchell directly appealed to the Colorado

Court of Appeals (CCA), which rejected all of his claims and affirmed the judgment.

People v. Mitchell, 829 P.2d 409 (Colo. App. 1991). Mitchell filed a petition for

certiorari with the Colorado Supreme Court (CSC), but that petition was denied.

Thereafter, Mitchell made three unsuccessful attempts at seeking state post-conviction

relief.

          Mitchell filed his federal habeas petition on July 14, 2003, asserting eleven claims

for relief:

          (1) the trial court violated his Sixth and Fourteenth Amendment rights by
          admitting hearsay statements of the female victim;

          (2) the trial court violated his right to testify;

          (3) the eleven-year delay between the murders and the time of his
          prosecution violated his Fourteenth Amendment rights;

          (4) ineffective assistance of trial counsel (based on five alleged failures);

          (5) the trial court violated his right to a fair trial by failing to give a limiting
          instruction regarding the testimony of one witness and the district attorney’s
          closing arguments;


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       (6) the prosecution’s knowing use of perjured testimony of one witness
       violated his right to a fair trial;

       (7) ineffective assistance of post-conviction counsel;

       (8) the trial court violated his Fourth and Fourteenth Amendment rights by
       allowing illegally obtained statements and evidence to be introduced at trial;

       (9) ineffective assistance of appellate counsel;

       (10) the Colorado courts violated his due process rights by failing to grant
       him liberal construction of his pro se post-conviction pleadings and in
       deeming his second application for post-conviction relief to be successive;
       and

       (11) the Colorado courts violated his due process and confrontational rights
       by failing to allow him the ability to correct erroneous information
       contained in his appellate record.

       The magistrate judge assigned to the case issued a lengthy and detailed report and

recommendation recommending that Mitchell’s petition be denied. After allowing

Mitchell to file written objections to the report and recommendation, the district court

rejected those objections, adopted the report and recommendation in full, and denied

Mitchell’s habeas petition. The district court subsequently denied Mitchell’s request for a

COA. Mitchell has now renewed his request for a COA with this court. Mitchell has also

filed a motion to proceed in forma pauperis on appeal.

                                             II.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). In other words, a state prisoner may appeal from the denial of federal habeas

relief under 28 U.S.C. § 2254 only if the district court or this court first issues a COA. 28

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U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the applicant has made a

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

order to make that showing, a prisoner must demonstrate “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). If the district court denied the “habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim,” the prisoner must, in order to

obtain a COA, demonstrate “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in its procedural ruling.” Id.

       Here, the magistrate judge concluded, and the district court agreed, that seven of

Mitchell’s claims, as well as a portion of an eighth claim, were procedurally barred. In

particular, the magistrate judge and district court concluded that:

       • Claims (1) and (3) were procedurally defaulted due to Mitchell’s failure to
       present them to the CSC, Mitchell failed to establish cause for the
       procedural default, and the failure of the federal courts to consider the
       claims would not result in a fundamental miscarriage of justice;

       • Two of the bases for Claim (4), which alleged ineffective assistance of
       counsel, were unexhausted, subject to anticipatory procedural bar in state
       court, and Mitchell failed to establish cause for the default; and

       • Claims (5), (6), (8), (9) and (11) were unexhausted, subject to anticipatory
       procedural bar in state court, and Mitchell failed to establish cause for the
       default.



                                               4
After examining the record on appeal, we agree that Claims (4), (5), (6), (8), (9), and (11)

were procedurally barred and that no reasonable jurist could conclude either that the

district court erred in dismissing these claims or that Mitchell should be allowed to

proceed further on these claims. Thus, for substantially the same reasons set forth in the

magistrate judge’s report and recommendation, we deny Mitchell’s request for COA with

respect to these six claims.

       We reach a different conclusion with respect to Claims (1) and (3). As noted, the

district court concluded that these two claims were procedurally defaulted due to

Mitchell’s failure to present them to the CSC in the course of his direct appeal. Mitchell

contends, however, that the district court failed to take into account the impact of

Colorado Appellate Rule 51.1(a). That rule, which was adopted on May 18, 2006, prior

to the district court’s ruling, provides:

       In all appeals from criminal convictions or post-conviction relief matters
       from or after July 1, 1974, a litigant shall not be required to petition for
       rehearing and certiorari following an adverse decision of the Court of
       Appeals in order to be deemed to have exhausted all available state
       remedies respecting a claim of error. Rather, when a claim has been
       presented to the Court of Appeals or Supreme Court, and relief has been
       denied, the litigant shall be deemed to have exhausted all available state
       remedies.

Colo. App. R. 51.1(a). Because we have not, to date, considered the impact of this rule,

and because Mitchell and respondent each present credible arguments regarding its effect,

we conclude that reasonable jurists could differ with respect to the district court’s

conclusion that Claims (1) and (3) were unexhausted and thus procedurally barred for



                                              5
purposes of these federal habeas proceedings. Accordingly, we grant Mitchell’s request

for a COA with respect to these two claims and address them in more detail below.

       As for the remaining four claims presented by Mitchell in his federal habeas

petition, the magistrate judge and district court addressed and rejected them on the merits,

concluding, in pertinent part:

       • as to Claim (2), the CCA determined that competent evidence existed to
       support the trial court’s finding that Mitchell understood his right to testify
       and voluntarily waived that right, and Mitchell, in seeking federal habeas
       relief, had failed to rebut those findings by clear and convincing evidence,
       as required by 28 U.S.C. § 2254(e)(1);

       • as to Claim (4), the Colorado appellate courts rejected on the merits
       Mitchell’s claims that his trial counsel was ineffective for failing to (a)
       present testimony from the police officers with whom a witness claimed he
       had collaborated, (b) timely object to a portion of the prosecutor’s closing
       argument, and (c) present evidence to support Mitchell’s theory that the
       murders occurred during a robbery of the victims, and those determinations
       were neither contrary to, nor an unreasonable application of, the principles
       outlined in Strickland v. Washington, 466 U.S. 668 (1984);

       • Claim (7) failed to state a valid basis for federal habeas relief because
       neither the Constitution nor federal law provides for a right to counsel in
       state post-conviction proceedings; and

       • Claim (10) also failed to state a valid basis for federal habeas relief
       because it focused exclusively on the state courts’ procedural handling of
       his applications for post-conviction relief, rather than the underlying
       judgment which provided the basis for Mitchell’s incarceration.

We conclude, upon review, that no reasonable jurist “could debate whether (or, for that

matter, agree that)” any of these claims “should have been resolved in a different manner

or that [they] were adequate to deserve encouragement to proceed further.” Slack, 529

U.S. at 484 (internal quotation marks omitted). We therefore deny Mitchell’s request for

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a COA with respect to these claims.

                                              III.

        Having granted a COA with respect to Claims (1) and (3), we now proceed to

address those claims in more detail. As noted, the district court concluded that these

claims were unexhausted due to Mitchell’s failure to present them to the Colorado

Supreme Court, and, in turn, that they were subject to what we have termed anticipatory

procedural bar. See Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir. 2007)

(describing the concept of anticipatory procedural bar). Mitchell strenuously disputes

these conclusions, contending that the adoption of Colorado Appellate Rule 51.1(a)

retroactively obviated any need for him to have presented these two claims to the

Colorado Supreme Court. We conclude it is unnecessary to resolve this question because,

even assuming Mitchell sufficiently exhausted the claims, there is no merit to either of

them.

        It is undisputed that Mitchell filed his federal habeas petition well after the

effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Thus, AEDPA’s provisions apply to this appeal. See McLuckie v. Abbott, 337 F.3d

1193, 1197 (10th Cir. 2003). Under AEDPA, if a claim was adjudicated on the merits by

the state courts, the petitioner will be entitled to federal habeas relief only if he can

establish that the state court decision “was contrary to, or involved 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 “was based on an unreasonable determination

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of the facts in light of the evidence presented in the State court proceeding,” id., §

2254(d)(2). “When reviewing a state court’s application of federal law, we are precluded

from issuing the writ simply because we conclude in our independent judgment that the

state court applied the law erroneously or incorrectly.” McLuckie, 337 F.3d at 1197.

“Rather, we must be convinced that the application was also objectively unreasonable.”

Id.

         In Claim (1), Mitchell contends that the state trial court violated his Sixth

Amendment right to confrontation by admitting two statements the female murder victim

made prior to her death, one to her mother and another to her daughter. The Colorado

Court of Appeals (CCA) considered and rejected this claim on the merits in the course of

resolving Mitchell’s direct appeal. People v. Mitchell, 829 P.2d 409, 411-12 (Colo. App.

1991).

         At the time of the CCA’s decision, the “clearly established federal law” governing

Confrontation Clause claims was the Supreme Court’s decision in Ohio v. Roberts, 448

U.S. 56 (1980). See Stevens v. Ortiz, 465 F.3d 1229, 1235-38 (10th Cir. 2006) (noting

that we must identify and apply the clearly established Supreme Court precedent existing

at the time the defendant’s conviction became final). Roberts held that a testimonial

hearsay statement was admissible only if the declarant was unavailable and the statement

either (a) satisfied “a firmly rooted” exception to the hearsay rule or (b) bore

“particularized guarantees of trustworthiness.” 448 U.S. at 66.

         In addressing Mitchell’s Sixth Amendment claim, the CCA expressly recognized

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and applied the Roberts test. 829 P.2d at 411-12. In doing so, the CCA first noted that

the declarant (the female murder victim) was unavailable. Id. at 412. The CCA then

concluded that the two challenged statements fell within the scope of a firmly rooted

exception to the hearsay rule, i.e., the excited utterance exception:

           The excited utterance exception was deduced initially by Wigmore from
       his analysis of res gestae cases. See 6 J. Wigmore, Evidence §§ 1745-1764
       (3d ed. 1940), and “finds abundant support in the decided federal cases.” J.
       Weinstein & M. Berger, Weinstein’s Evidence, § 803(2)[01] (1990). Res
       gestae first came into common use in the early 1800’s as a “convenient
       escape” from the hearsay objection. See 6 J. Wigmore, Evidence § 1767
       (3d ed. 1940).
           The rationale for the excited utterance exception, similar to that used in
       early res gestae cases, is that the declarant’s powers of reflection and ability
       to fabricate or misrepresent the events observed are momentarily suspended
       while the declarant is under the stress of excitement from a startling event.
       (citation omitted).

          Excited utterances withstand confrontation clause challenges because, as
       the Supreme Court noted in Idaho v. Wright, [497 U.S. 805 (1990)]:
              “The basis for the ‘excited utterance’ exception for example,
              is that such statements are given under circumstances that
              eliminate the possibility of fabrication, coaching, or
              confabulation, and that therefore the circumstances
              surrounding the making of the statement provide sufficient
              assurance that the statement is trustworthy and that
              cross-examination would be superfluous.”

          Consequently, because of their historical efficacy and inherent
       guarantees of trustworthiness, we hold that excited utterances, as defined by
       CRE 803(2), are firmly rooted and have the “solid foundation” to which the
       Supreme Court in Ohio v. Roberts, supra, referred as permitting an
       inference of reliability. (citation omitted).

          Thus, here, admission of [the female murder victim’s] excited utterances
       both to her mother and her daughter comported with the confrontation
       clause . . . .



                                              9
Id.

       We conclude, applying the AEDPA standards of review, that the CCA’s resolution

of Claim (1) was neither contrary to, nor an unreasonable application of, the principles

outlined in Roberts. We in turn conclude that Mitchell is not entitled to federal habeas

relief on this claim.

       That leaves Claim (3), in which Mitchell asserts that the eleven-year delay

between the time of the murders and his being charged in state court violated his rights to

due process and fundamental fairness. The CCA considered and rejected this claim on

the merits in the course of addressing Mitchell’s direct appeal. Mitchell, 829 P.2d at 413-

14. The CCA concluded Mitchell had not shown that the delay prejudiced his defense,

and further that Mitchell essentially caused the delay in his prosecution by procuring a

false alibi from his girlfriend.

       Our first task is to determine the “clearly established federal law” applicable to this

claim. In United States v. Marion, 404 U.S. 307 (1971), the Supreme Court held that

statutes of limitations provide “the primary guarantee . . . against bringing overly stale

criminal charges,” id. at 322 (internal quotation marks omitted), but also acknowledged

that the Due Process Clause “would require dismissal of [an] indictment if it were shown

at trial that the pre-indictment delay . . . caused substantial prejudice to [the defendant’s]

right to a fair trial and that the delay was an intentional device to gain tactical advantage

over the accused.” Id. at 324. The Supreme Court subsequently addressed the issue of

pre-indictment delay in United States v. Lovasco, 431 U.S. 783 (1977). There, the Court

                                              10
reaffirmed its decision in Marion, holding “that proof of prejudice is generally a

necessary but not sufficient element of a due process claim, and that the due process

inquiry must consider the reasons for the delay as well as the prejudice to the accused.”

Id. at 790. The Court also held that prosecutors do not violate principles of due process

“when they defer seeking indictments until they have probable cause to believe an

accused is guilty . . . .” Id. at 791. More specifically, the Court held “that to prosecute a

defendant following investigative delay does not deprive him of due process, even if his

defense might have been somewhat prejudiced by the lapse of time.” Id. at 796.

       We readily conclude that the CCA’s rejection of Mitchell’s pre-charge delay claim

was neither contrary to, nor an unreasonable application of, the principles outlined in

Marion and Lovasco. In addition to its detailed explanation of why Mitchell was not

prejudiced by the delay in light of what it described as the “consistent and compelling”

evidence against him, the CCA noted that Mitchell had conceded “the delay was not

purposeful or intended to prejudice him.” Mitchell, 829 P.2d at 414. That concession

alone establishes that there was no due process violation. Accordingly, we conclude

Mitchell is not entitled to federal habeas relief on Claim (3).

                                             IV.

       Mitchell’s request for a COA is GRANTED in part and DENIED in part. The

judgment of the district court with respect to Claims (1) and (3) in Mitchell’s federal

habeas petition is AFFIRMED. Mitchell’s motion for leave to proceed on appeal in




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forma pauperis is GRANTED.


                                  Entered for the Court


                                  Mary Beck Briscoe
                                  Circuit Judge




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