                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  April 10, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 JOHN WARRENER,

       Petitioner - Appellant,
                                                        No. 11-1564
 v.                                           (D.C. No. 1:11-CV-00019-CMA)
                                                         (D. Colo.)
 ANGEL MEDINA; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      John Warrener, a state inmate appearing pro se, seeks to appeal from the

district court’s dismissal with prejudice of his habeas petition. 28 U.S.C. § 2254.

He asserts violations of his Fifth, Sixth, and Fourteenth Amendment rights. To

appeal, Mr. Warrener needs a certificate of appealability (“COA”) which requires

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

§ 2253(c)(2). Under this standard, he must show “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 quotations omitted). Finding these showings lacking, we

deny a COA and dismiss the appeal.



                                   Background

      Mr. Warrener and the victim in this case began an intimate relationship in

2001. See Warrener v. Medina, No.11-cv-00019-CMA, 2011 WL 5984082, at *1

(D. Colo. Nov. 30, 2011) (hereinafter “Order”). In June 2004, the victim’s family

called police and requested a welfare-check on the victim because they had not

been able to reach her by telephone. Id. When the police arrived at her home,

they knocked on the door but received no response. While seeking entry via

apartment management personnel, police observed Mr. Warrener inside of the

apartment and ordered him to come outside. Instead, Mr. Warrener jumped out of

a window and fled. Id. Police apprehended him, handcuffed him, and then asked

whether the victim was dead or alive. Id. at *5. Mr. Warrener shrugged. When

another officer asked if the victim was okay, he replied, “I think she’s dead.” Id.

Upon entering the apartment, police found the victim’s body on her bed, wrapped

in plastic. She died from multiple stab wounds. Id. at *1.

      Mr. Warrener was convicted of first degree murder—after deliberation,

felony murder, and second degree robbery. The state appellate court vacated his

conviction for felony murder, holding that only one murder conviction could be

entered for the homicide. People v. Warrener, No. 05CA1850, 2008 WL 1970845

                                        -2-
(Colo. App. May 8, 2008) (unpublished); R. 167 (hereinafter “Warrener I”). He

was sentenced to life without parole, with a concurrent sentence of twenty-four

years for burglary. Order at *1. He exhausted both state direct and post-

conviction review for all claims before this court, and his petition was timely

pursuant to 28 U.S.C. § 2244. Id. at *1, *4. The district court dismissed his

petition with prejudice on November 30, 2011. Id. at *16.



                                     Discussion

       In deciding whether to grant a COA, we must also consider the standard

of review that would be applied to a merits disposition. We must defer to state

court proceedings on the issues unless those proceedings “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly

established Federal law” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Moreover, factual findings

made by state courts are presumed correct unless the presumption is rebutted by

clear and convincing evidence. 28 U.S.C. § 2254(e)(1). We consider Mr.

Warrener’s constitutional claims in turn.

A.    Sixth Amendment Claims

      First, Mr. Warrener claims that his Sixth Amendment rights were violated

when the state court admitted testimony of the victim through a police officer

                                        -3-
who interviewed her after a prior domestic violence dispute. Aplt. Br. 3-3(b).

According to the police officer, the victim called the police after Mr. Warrener

pushed her during an argument and she hit her head on a towel rack. See Order at

*10. The trial court held that “because [Mr. Warrener] pled guilty to harassment

and domestic violence based on the prior incident, he knowingly, voluntarily and

intelligently waived his right to confront and cross-examine the victim with

respect to her hearsay statements for purposes of the pending murder charges.”

Id. at *11. The state appellate court determined that the hearsay was admitted in

error, but that the error was harmless beyond a reasonable doubt. See Warrener I;

R. 167, 189.

      Of course, on federal collateral review, the reviewing court evaluates

harmless error based upon whether the error had a substantial and injurious effect

upon the verdict rather than the standard employed by the state court. Fry v.

Pliler, 551 U.S. 112, 121-22 (2007); Welch v. Workman, 639 F.3d 980, 992 (10th

Cir. 2011). Accepting as true the state court’s holding that the admission was

constitutional error, the district court came to the correct result, even if it applied

the more generous standard—harmless beyond a reasonable doubt—employed by

the state court. The officer’s testimony was harmless based on the volume of

inculpatory evidence presented against Mr. Warrener at trial. See Order at *6,




                                          -4-
*11. 1 Mr. Warrener’s argument that the Supreme Court’s holding in Giles v.

California, 554 U.S. 353 (2008), somehow changes the outcome is not reasonably

debatable. Aplt. Br. 3-3(b). Giles held that the admission of a victim’s

statements from a prior domestic violence incident at the murder trial of the

defendant violated his right to confront witnesses as outlined in Crawford v.

Washington, 541 U.S. 36 (2004). See Giles, 554 U.S. at 356-57, 377. Here, the

admission was assumed improper, yet there was no grave doubt about the effect

of the error on the verdict. Therefore, Giles does not change the outcome of Mr.


      1
          As the district court noted:

      At Applicant's trial, police officers testified that they entered the
      victim's apartment in response to a welfare check call placed by the
      victim's father, minutes after the Applicant fled the apartment through
      a window, and found the victim's body inside a bedroom, wrapped in
      plastic and covered with a sheet. Baby powder was spread over the
      victim's body. The victim had suffered stab wounds to her chest and
      back and had defensive injuries to her hands. Police found clothing and
      bedding in the washing machine and a knife in the kitchen sink. Baby
      powder seized from the apartment bore the Applicant's fingerprints. A
      large area of blood on the carpet in the bedroom where the victim was
      found was covered in detergent. Applicant's fingerprints were found on
      a carpet cleaning machine that also contained the victim's blood.
      Applicant's cell mate during his pretrial detention testified that
      Applicant confessed the following details about the crime, which
      largely corroborate the other evidence presented at Applicant's trial: he
      killed a woman named “Karen” who he had been seeing romantically
      with a big knife he found in her kitchen and placed her body in plastic
      bags; he then cleaned the knife and the apartment with cleaning supplies
      and tried to escape through a bathroom window when the police arrived
      at the front door.

Order at *6.

                                         -5-
Warrener’s case.

B.    Fifth Amendment Claims

      Next, Mr. Warrener argues that his Fifth Amendment right was violated

when officers asked him questions about the victim’s condition at the scene of the

crime before reading him his Miranda rights. Aplt. Br. 3(b)-3(d). The district

court agreed with the state court that Mr. Warrener “was not subject to an

interrogation, and, therefore, no Miranda advisement was required . . . .” Order at

*5. The district court continued, however, that “even if the admission of [Mr.

Warrener’s] statements to the police at trial violated his Fifth Amendment rights,

[he] is not entitled to federal habeas relief unless the constitutional error had a

‘substantial and injurious effect or influence’ on the jury’s verdict.” Id. at *6

(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). The district court’s

conclusion is not reasonably debatable. Notwithstanding any Fifth Amendment

violation, based on the overwhelming evidence presented against Mr. Warrener,

any constitutional violation did not result in “actual prejudice.” Brecht, 507 U.S.

at 637; see also Order at *6; supra n.1.

C.    Failure to Require Competency Evaluation

       In his third claim, Mr. Warrener asserts that his due process rights under

the Fourteenth Amendment were violated when the trial court did not evaluate his

competence to stand trial. Aplt. Br. 3(d)-3(e). He states that a trial court is

required to administer “a mental competency evaluation if there is reason to

                                           -6-
believe the defendant is mentally incompetent.” Id. at 3(d); see Pate v. Robinson,

383 U.S. 375, 385 (1966). The question to consider is “whether the trial court

‘fail[ed] to give proper weight to the information suggesting incompetence which

came to light during trial.’” McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir.

2001) (quoting Drope v. Missouri, 420 U.S. 162, 179 (1975)) (alteration in

McGregor).

      In McGregor, this court held that the petitioner’s procedural due process

rights were violated because a “reasonable judge should have had a bona fide

doubt concerning [petitioner’s] continued competency to stand trial in light of the

inconsistent evidence concerning whether [he] was properly medicated throughout

trial, counsel’s repeated and vehement contentions that his client was unable to

assist in his own defense, [his] odd behavior at trial and . . . [his] substantial

history of mental illness.” McGregor, 248 F.3d at 955. In that case, petitioner

had a documented history of serious mental illness, changed medications during

trial, exhibited unusual behavior during trial—including throwing a temper

tantrum because his shirt did not have a pocket, complaining of mental problems,

and challenging jurors to “one on one” basketball games—and there were

repeated assertions by his counsel that he was incompetent on the record

throughout trial. Id. at 955-62.

      Here, Mr. Warrener’s counsel made the court aware that he was taking

medication. 13 Trial Trans. 113. The court spoke directly to Mr. Warrener about

                                          -7-
this, however, and his responses satisfied the court that he was competent and

could waive his right to testify. 2 There were no outbursts during trial, as in

      2
          The record states:

      Q [Court]: Now, when you say—you just said that Mr. Warrener is
      actually under the influence of certain medications. What I want to find
      out is again, and maybe I'd better inquire, I don't want that staining on
      the record here. Mr. Warrener, I understand that you've taken some
      medications that you've identified earlier; is that right?

      A [Mr. Warrener]: Yes, sir.

      Q: Do you feel that either of those drugs, and perhaps in combination
      that you've taken, are interfering with your thinking process, your
      thought process?

      A: It's possible. I'm not sure.

      Q: Well, before you told me that even though you were taking those
      drugs—

      A: I don't believe so.

      Q: Pardon me?

      A: I don't believe that they are.

      Q: Okay. Well are you having any trouble or difficulty understanding
      what I'm saying to you?

      A: No, sir.

      Q: And when I went through before and read to you your right to
      choose to testify, you told me you understood that, correct?

      A: Yes, sir.

      Q: Do you have any other questions you want to ask me about the right
      to choose to testify?

                                          -8-
McGregor, and counsel presented no evidence of incompetency during trial, other

than discussing his medications. See Order at *10. Therefore, the district court’s

holding that defense counsel did not indicate that Mr. Warrener was incompetent



      A: No, sir.

13 Trial Tr. 113-14. The court continued:

      Q [Court]: Okay. Now, understand again as I've said, this is a stressful
      time and a stressful decision, but it's a decision you have to make. Do
      you understand that?

      A [Mr. Warrener]: Yes. Yes, sir.

      Q: Do you at this time feel that in any way because of the medication,
      the Geodon or the Wellbutrin that you're just unable to make this
      decision?

      A: No, sir.

      Q: Okay. So you feel that notwithstanding taking these medications that
      are treating these conditions, you understand what you're doing,
      correct?

      A: Yes, sir.

      Q: And you're making a voluntary decision; is that right?

      A: Yes, sir.

      Q: And you have no other questions about your right to choose to
      testify or not to testify, correct?

      A: No, sir.

      Q: Okay. Thank you.

Id. at 117-18.

                                         -9-
under Colorado law, and that his statements to the court did not raise questions of

competency, are not reasonably debatable. Id.

D.    Failure to Instruct on Lesser Included Offense

      Mr. Warrener argues that the state court violated his Fourteenth

Amendment due process rights when the court did not instruct the jury on

Colorado’s heat of passion mitigator to second degree murder. Aplt. Br. 3(e)-

3(f). As this circuit has noted, “[t]he Supreme Court has never recognized a

federal constitutional right to a lesser included offense instruction in non-capital

cases, see Beck v. Alabama, 447 U.S. 625, 638 n. 14 (1980), and neither has this

court.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004). We continued,

“[o]ur precedents establish a rule of ‘automatic non-reviewability’ for claims

based on a state court’s failure, in a non-capital case, to give a lesser included

offense instruction.” Id. The state court reasoned that any failure to give a heat

of passion instruction was harmless error given the conviction on the greater

offense of first degree murder. Warrener I; R. 167, 194. This claim is not

reasonably debatable given the lack of a clearly established federal right. See 28

U.S.C. § 2254(d)(1); House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008).

E.    Ineffective Assistance of Counsel

      Finally, Mr. Warrener claims that his Sixth Amendment right to effective

assistance of counsel was violated when counsel failed to seek a voluntary

intoxication instruction as a defense to first degree murder and failed to present

                                         - 10 -
an insanity defense. Aplt. Br. 3(f)-3(k). In order to prevail on an ineffective

assistance of counsel claim, Mr. Warrener must show that (1) counsel’s

representation fell below an objective standard of reasonableness; and (2) the

deficient performance prejudiced him. See Strickland v. Washington, 466 U.S.

668, 687-88, 691-92 (1984). As we have explained, “[t]o be deficient, the

performance must be outside the wide range of professionally competent

assistance. In other words, it must have been completely unreasonable, not

merely wrong.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011). The

state courts resolved these claims on lack of deficient performance; the decision

on voluntary intoxication was strategic and based on a lack of supporting

evidence; the decision on the insanity defense was based on a lack of supporting

evidence. 1 R. 308, 312-16. Accordingly, the representation fell “within a ‘wide

range’ of reasonable professional assistance.” United States v. Rushin, 642 F.3d

1299, 1306 (10th Cir. 2011). These conclusions, in light of the deference

afforded, are not reasonably debatable.

       We DENY a COA, DENY IFP status and DISMISS this appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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