United States District Court, D. Colorado
ORDER DISMISSING § 2254 APPLICATION
BROOKE JACKSON, United States District Judge
Mathew Guevara, has filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254. (Docket No. 1).
Respondents have filed an Answer (Docket No. 30) and
Applicant was afforded an opportunity to file a Reply. The
Court has considered the same, along with the state court
record. For the reasons discussed below, the Application will
Background and State Court Proceedings
10, 2010, Mr. Guevara was convicted by a jury of first-degree
murder in Denver District Court Case No. 08CR6460. (ECF No. 1
at 1). He was sentenced to a prison term of life without
Applicant's direct appeal proceeding, the Colorado Court
of Appeals summarized the relevant facts as follows:
In 2008, Guevara was charged with first degree murder and
proceeded to a jury trial for stabbing J.B. (the victim).
According to the trial testimony, either Guevara or Eric
Candelaria, or both of them, stabbed the victim over sixty
times in the back seat of a car. They dragged him to the
outside of an apartment building and left him just inside the
gate in sub-freezing weather. The doctor who performed the
autopsy testified that the victim died predominantly from
blood loss due to deep stab wounds in the neck and stomach
areas, and that hypothermia possibly was a contributing
The prosecution introduced Guevara's video-recorded
statement to police, during which he admitted stabbing the
victim twice in the stomach. It also elicited
Candelaria's girlfriend's (K.L.'s) testimony that
Guevara confessed to her that he committed the crime and that
Candelaria was not involved. Based on this evidence, the
prosecution argued that Guevara was guilty of first degree
murder either as a principal or a complicitor. Guevara argued
that he committed a lesser degree of murder or manslaughter,
or that he acted in self-defense based on his statement to
police that he stabbed the victim only two times when the
victim grabbed his throat and squeezed it.
(Docket No. 9-3 at 2-3).
Guevara's conviction was affirmed on direct appeal in
People v. Matthew Joseph Guevara, No. 10CA1553
(Colo.App. July 31, 2014) (unpublished decision). (Docket No.
9-3). The Colorado Supreme Court denied Applicant's
petition for certiorari review on August 24, 2015. (Docket
No. 1 at 2; No. 9-5). Mr. Guevara then filed a petition for
certiorari review in the United States Supreme Court, which
was denied on January 11, 2016. (Docket No. 1 at 7, 11).
Guevara initiated this action on November 23, 2016. He
asserts four claims in the Application:
(1) The admission of his videotaped involuntary confession
violated due process. (Docket No. 1 at 4).
(2) The evidence presented at trial was insufficient to
support his conviction for first-degree murder. (Id.
(3) He was denied his constitutional right to confront a key
witness at trial when the court limited his
(4) The jury instruction on complicity violated his due
process rights. (Id. at 6).
pre-answer response, Respondents conceded that the
Application was timely and that Applicant exhausted his state
court remedies for claim one. (Docket No. 9). Respondents
argued, however, that Applicant failed to exhaust available
state remedies for claims two, three and four because he did
not seek certiorari review of the claims in the Colorado
Supreme Court. (Id.). In a May 1, 2017 Order, Senior
Judge Lewis T. Babcock rejected Respondents' assertion of
the failure-to-exhaust defense for claims two through four,
concluded that the claims were exhausted, and ordered that
the Application be drawn in its entirety to a presiding
judge. (Docket No. 18).
Court reviews the merits of Applicant's claims below
under the deferential AEDPA standard of review.
28 U.S.C. § 2254
28 U.S.C. § 2254(d) provides that a writ of habeas
corpus may not be issued with respect to any claim that was
adjudicated on the merits in state court unless the state
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) 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). The applicant bears the burden of
proof under ' 2254(d). See Woodford v.
Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
court reviews claims of legal error and mixed questions of
law and fact pursuant to 28 U.S.C. § 2254(d)(1). See
Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question the court must answer under '
2254(d)(1) is whether the applicant seeks to apply a rule of
law that was clearly established by the Supreme Court at the
time his conviction became final. See Williams v.
Taylor, 529 U.S. 362, 390 (2000). Clearly established
federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court's decisions as of the time
of the relevant state-court decision." Id. at
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar
to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir.
2008). If there is no clearly established federal law, that
is the end of the court's inquiry pursuant to '
2254(d)(1). See id. at 1018.
clearly established rule of federal law is implicated, the
court must determine whether the state court's decision
was contrary to or an unreasonable application of that
clearly established rule of federal law. See
Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases"; or (b) “the state court confronts a set of
facts that are materially indistinguishable from a decision
of the Supreme Court and nevertheless arrives at a result
different from [that] precedent." Maynard
[v. Boone], 468 F.3d [665, ] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word
'contrary' is commonly understood to mean
'diametrically different, ' 'opposite in
character or nature, ' or 'mutually
opposed.'" Williams, 529 U.S. at 405
A state court decision involves an unreasonable application
of clearly established federal law when it identifies the
correct governing legal rule from Supreme Court cases, but
unreasonably applies it to the facts. Id. at 407-08.
Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle
from Supreme Court precedent to a new context where it should
House, 527 F.3d at 1018.
federal court's inquiry pursuant to the
“unreasonable application" clause is an objective
inquiry. See Williams, 529 U.S. at 409-10.
“[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather that
application must also be unreasonable." Id. at
411. “[A] decision is 'objectively
unreasonable' when most reasonable jurists exercising
their independent judgment would conclude the state court
misapplied Supreme Court law." Maynard, 468
F.3d at 671. In addition,
evaluating whether a rule application was unreasonable
requires considering the rule's specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations. [I]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule
that has not been squarely established by [the Supreme]
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks and citation omitted). In
conducting this analysis, the court “must determine
what arguments or theories supported or . . . could have
supported[ ] the state court's decision" and then
“ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision of [the Supreme]
this standard, “only the most serious misapplications
of Supreme Court precedent will be a basis for relief under
' 2254." Maynard, 468 F.3d at 671; see
also Harrington, 562 U.S. at 88 (stating that
“even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable").
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on the claim being presented in federal court was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Harrington, 562 U.S. at 102.
under ' 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the
merits." Cullen v. Pinholster, 563 U.S. 170,
court reviews claims asserting factual errors pursuant to 28
U.S.C. § 2254(d)(2). See Romano v. Gibson, 278
F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2)
allows the federal court to grant a writ of habeas corpus
only if the relevant state court decision was based on an
unreasonable determination of the facts in light of the
evidence presented to the state court. Pursuant to '
2254(e)(1), the court must presume that the state court's
factual determinations are correct and the petitioner bears
the burden of rebutting the presumption by clear and
convincing evidence. “The standard is demanding but not
insatiable . . . [because] '[d]eference does not by
definition preclude relief.'" MillerBEl v.
Dretke, 545 U.S. 231, 240 (2005) (quoting MillerBEl
v. Cockrell, 537 U.S. 322, 340 (2003)).
Pro Se Litigant
is proceeding pro se. The court, therefore,
“review[s] his pleadings and other papers liberally and
hold[s] them to a less stringent standard than those drafted
by attorneys." Trackwell v. United States, 472
F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see
also Haines v. Kerner, 404 U.S. 519, 520B21 (1972).
However, a pro se litigant's “conclusory
allegations without supporting factual averments are
insufficient to state a claim on which relief can be
based." Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). A court may not assume that an applicant
can prove facts that have not been alleged, or that a
respondent has violated laws in ways that an applicant has
not alleged. Associated Gen. Contractors of Cal., Inc. v.
Cal. State Council of Carpenters, 459 U.S. 519, 526
(1983). Pro se status does not entitle a litigant to
application of different rules. See Montoya v. Chao,
296 F.3d 952, 957 (10th Cir. 2002).
first claim, Mr. Guevara contends that the trial court's
admission of his videotaped involuntary confession to the
police violated due process. (Docket No. 1 at 4).
Specifically, he argues that his inculpatory statements
“were involuntary due to psychological coercion and
promises that confession would lead to leniency.”
Fifth Amendment to the United States Constitution guarantees
that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” U.S.
CONST. amend. V. Further, due process prohibits conviction of
a defendant based, “in whole or in part, upon an
involuntary confession.” Jackson v. Denno, 378
U.S. 368, 376 (1964).
police activity is a necessary predicate to the finding that
a confession is not ‘voluntary' within the meaning
of the Due Process Clause of the Fourteenth Amendment.”
Colorado v. Connelly, 479 U.S. 157, 167 (1986). The
Constitution is not “concerned with moral and
psychological pressure to confess emanating from sources
other than official coercion.” Oregon v.
Elstad, 470 U.S. 298, 304-305 (1985). See also
Culombe v. Connecticut, 367 U.S. 568, 576 (1961)
(recognizing that a confession is not involuntary where it is
“naturally born of remorse, or relief, or desperation,
Bram v. United States, 168 U.S. 532 (1897), the
Supreme Court held that, for a confession to be voluntary, it
may not be “extracted by any sort of threats or
violence, or obtained by any direct or implied promises,
however slight.” Id. at 542-43. However, the
Supreme Court subsequently retreated from Bram's
“but for” test by adopting a totality of the
circumstances test. See Arizona v. Fulminante, 499
U.S. 279, 285-86 (1991) (recognizing that Bram does
not state the standard for determining the voluntariness of a
confession under current precedent; instead, voluntariness
must be determined under the totality of the circumstances).
totality of the circumstances of the police interrogation
demonstrate that the suspect's “will has been
overborne and his capacity for self-determination critically
impaired, ” the confession was not voluntary.
Schneckloth v. Bustamonte, 412 U.S. 218, 225-26
(1973). See also Dickerson v. United States, 530
U.S. 428 (2000) (reaffirming that the voluntariness of a
confession is based on the totality of the circumstances of
the police interrogation to determine “‘whether a
defendant's will was overborne, ” citing
Schneckloth); Mincey v. Arizona, 437 U.S.
385, 401 (1978).
relevant to the voluntariness analysis include the age,
education and intelligence level of the defendant; whether
the defendant was advised of his constitutional rights; the
length of detention; the repeated and prolonged nature of the
questioning; and the use of physical punishment, such as the
deprivation of food or sleep. Schneckloth, 412 U.S.
at 226. Threats or violence, promises of leniency, and the
exertion of any improper influence are factors to be
considered in determining whether a defendant's
confession was coerced under the totality of the
circumstances analysis. See Fulminante, 499 U.S. at
286-87; see also Sharp v. Rollings, 793 F.3d 1216,
1229 (10th Cir. 2015) (“‘Under Supreme
Court and Tenth Circuit precedent, a promise of leniency is
relevant to determining whether a confession was involuntary
and depending on the totality of the circumstances, may
render a confession coerced.'”) (quoting
Clanton v. Cooper, 129 F.3d 1147, 1159
(10th Cir. 1997)).
more, misrepresentations, ruses, and trickery by questioning
authorities do not render an otherwise voluntary confession
involuntary. Frazier v. Cupp, 394 U.S. 731, 739
(1969) (interrogator's misrepresentation to suspect that
accomplice had already confessed did not render suspect's
State court proceedings
direct appeal, the Colorado Court of Appeals analyzed Mr.
Guevara's claim under Mincey and
Connelly, as well as state court appellate cases
applying the totality of the circumstances test.
(See Docket No. 9-3 at 4-7). The state appellate
court rejected Applicant's claim on the following
The trial court found that, under the totality of the
circumstances, there was no “coercive governmental
conduct in this case. Certain interrogation techniques were
used to encourage the defendant to talk. Counsel has
suggested that the detectives were not completely truthful in
their assessment of the situation with the defendant, but
that's - truthfulness is not a
requirement.” It added that “no promises or
threats were made” and that “[t]he detective was
very upfront [sic] with the defendant about the charges he
was facing and the seriousness of those charges. There is
simply no evidence of coercion here.”
Guevara contends this ruling was in error and argues that the
detectives repeatedly and insistently engaged in coercive
questioning for over an hour, by making implied promises of
leniency and false representations of their knowledge of the
evidence against him. Thus, he argues, his statements were
not the product of his free will.
Upon our review of the record, the totality of the
circumstances shows that Guevara's statements were made
without the presence of, or consultation with, an attorney,
and were made in the context of a custodial interrogation at
the police station after the waiver of his Miranda
rights. Guevara had an eleventh grade education, and,
although he had prior experience in the criminal justice
system, he indicated that he had not previously seen a
Miranda waiver form. There was no indication that
Guevara was under the influence of drugs or alcohol. The two
detectives who interrogated him employed a conversational
tone during the two hour interrogation in a small room and
made no threats, but made certain statements that could be
characterized as implied promises:
[Y]ou gotta' be under a lot of stress right now trying to
think, “How do I get out of this?” The easiest
way is just to tell us exactly what happened and why it
. . .
[Y]ou're not gonna have any future by telling us these
. . .
[Y]ou have a lot to lose. It sounds like you have a
prospective music career, this rap you do and stuff, and you
have a girlfriend and you want to have a baby and stuff, and
that's what I was trying to tell you before, you can
recover from this because you're a young man. You can
recover from it ok?
. . .
[W]hen this goes to trial, and it is going to go, unless
something changes between [sic] then and you know, you decide
to talk about.
. . .
It's not going to make things worse for you. Just get it
over with and you know, talk to us about it, and get on with
your life. You know, so make this the starting point of
coming back up and getting this behind you, you know.
. . .
I mean we can't lie to you and say you probably won't
go to jail, but, you know . . . .
. . .
In the present case, the detectives made statements that can
be interpreted as implied promises. However, we must
consider, under the totality of the circumstances, whether
they played a significant role in inducing Guevara's
confession ..... Guevara was properly advised of, and waived,
his Miranda rights. He had prior experience in the
criminal justice system. And the detectives' tone
remained conversational, and they never promised Guevara
specific help in exchange for his confession. [State case law
While we do not condone the detectives' comments, or
their conduct in misrepresenting the scope of their knowledge
concerning Guevara's culpability, these comments alone
did not render the confession involuntary. Significantly, the
overall atmosphere of the interrogation was not otherwise
coercive and none of the explicit promises or other
techniques condemned in [People v. Freeman,
668 P.2d 1371, 1380 (Colo. 1983)] took place here. . . . .
[As in People v. Zadran, 314 P.3d 830 (Colo. 2013)],
there were no threats, the interrogation was not lengthy,
Guevara was calm, and the tone was conversational. Although
the detective's comment concerning Guevara's
prospective career, girlfriend, and desire to have a baby
might suggest an exploitation of Guevara's expressed
future goals, we do not perceive the comment as coercive. . .
Thus, we conclude that Guevara's confession was voluntary
under the totality of the circumstances, and that trial court
properly admitted his confession.
(Docket No. 9-3 at 7-14).
Application of AEDPA standard of review
the ultimate question of whether Mr. Guevara's confession
was voluntary is a legal question, subsidiary issues such as
whether the police threatened the Applicant or made promises
of leniency are questions of fact. See Unites States v.
Lopez, 437 F.3d 1059, 1064 (10th Cir. 2006)
(“The district court's determination that an
officer's actions amounted to a promise of leniency is a
factual finding.”). See also Miller v. Fenton,
474 U.S. 104, 112 (1985).
Court has carefully reviewed the DVD of Applicant's
videotaped police interview. The state courts' factual
findings that the detectives did not threaten or make any
express promises to Applicant in exchange for his confession
are supported by the record and Applicant has not pointed to
any clear and convincing evidence to the contrary. However,
as recognized by the Colorado Court of Appeals, the
detectives did make statements to Mr. Guevara that can be
construed reasonably as implied promises.
aside momentarily the issue of the implied promises made to
Mr. Guevara, the other circumstances of the interrogation
support the Colorado Court of Appeals' determination that
Applicant's confession was voluntary. At the beginning of
the interview, Applicant was told that he was being charged
with first degree murder and was advised of his
Miranda rights. He indicated that he understood his
rights and then waived them. Applicant was not hand-cuffed
during the interview, which lasted approximately two hours.
The detectives' tone was calm and conversational
throughout the interview. Mr. Guevara was lucid and
responsive and nothing occurred during the interview to
suggest that his level of intelligence or education rendered
his statements to the detectives involuntary, or that he
suffered from a mental impairment that was exploited by the
detectives. And, finally, the detectives did not injure
Applicant physically or deny him physical necessities. As the
Colorado Court of Appeals reasonably found, these factors
weigh in favor of a finding of voluntariness.
the state appellate court also recognized that the detectives
made some false representations of their knowledge of the
evidence against Mr. Guevara, false statements about the
evidence, without more, do not demonstrate that a confession
was involuntary. See Frazier, 394 U.S. at 739.
See also Lucero v. Kerby, 133 F.3d 1299, 1311 (10th
Cir.1998) (holding that defendant's inculpatory
statements were admissible even though officer made
“false statements about fingerprint evidence
found” at the crime scene, because “such
misrepresentations, without more, do not render an otherwise
voluntary confession involuntary”).
critical question is whether the state court reasonably
determined that the detective's implied promises to Mr.
Guevara during the interview were not coercive, ...