Pursuant to Fed. R. App. P. 43(c)(2), Aristedes Zavaras, the executive *

director of the Colorado Department of Corrections (CDOC), is substituted for

Joe Ortiz, the former executive director of the CDOC, as appellee in this action.

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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 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. 

FILED

United States Court of Appeals

Tenth Circuit

September 18, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JASON ALAN CAPPELLI,

Petitioner-Appellant,

v.

ARISTEDES ZAVARAS, Executive *

Director; THE ATTORNEY

GENERAL OF THE STATE OF

COLORADO,

Respondents-Appellees.

No. 06-1035

(D.C. No. 04-CV-00237-WYD)

(D. Colo.)

ORDER AND JUDGMENT

**

Before HENRY and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit

Judge.

Jason Alan Cappelli, a Colorado state prisoner, filed a 28 U.S.C. § 2254

petition for a writ of habeas corpus. The federal district court denied relief and
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denied a certificate of appealability (COA). Mr. Cappelli appealed. This court

granted a COA and ordered briefing as to “whether the absence of a sworn arrest

warrant violated the Fourth Amendment and affected the validity of the

proceedings to revoke Mr. Cappelli’s probation. . . . , including whether the

district court correctly applied Stone v. Powell, 428 U.S. 465 (1976), to an arrest

warrant.” Order at 4. Our jurisdiction arises under 28 U.S.C. §§ 1291 and

2253(a), and we affirm the district court’s denial of Mr. Cappelli’s § 2254 habeas

corpus petition.

I. Background

In exchange for the dismissal of three other charges, Mr. Cappelli pled

guilty to one felony charge of attempted second-degree burglary and one

misdemeanor charge of theft. Pursuant to the plea agreement, the parties entered

into a stipulation for a deferred judgment and sentence, under which the entry of

judgment and conviction on Mr. Cappelli’s plea was deferred for four years from

June 21, 1996. As a result, he was placed on probation for the four-year period

during which the judgment and sentence on the felony charge were deferred, and

he received one year of probation on the misdemeanor charge, to run

concurrently. 

On April 11, 2000, Mr. Cappelli’s probation officer filed a complaint for

revocation of his deferred judgment and sentence on the felony charge, alleging

that he had violated two terms of the stipulation: he had committed a criminal
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offense during the deferral period, and he had failed to pay restitution and court

costs. On April 12, 2000, the Colorado trial court issued a warrant for the arrest

of Mr. Cappelli, who was, at that time, in the custody of the Colorado Department

of Corrections (CDOC) on other charges. 

Through counsel, Mr. Cappelli filed a motion to quash the probation

officer’s revocation complaint, asserting that the Colorado trial court lacked

jurisdiction because the complaint was signed by the probation officer, not the

district attorney. The trial court received briefing on the motion, conducted two

hearings on the issue, and denied Mr. Cappelli’s motion—concluding that even in

the absence of the district attorney’s signature, the probation officer’s revocation

complaint satisfied the requirements of the relevant state statute, Colo. Rev. Stat.

§ 16-7-403. After a revocation hearing, the trial court held that the state had

proven both counts of the revocation complaint, entered a judgment of conviction

on the underlying felony charge to which Mr. Cappelli had originally pled guilty,

and sentenced him to eighteen months’ imprisonment in the CDOC.

In 2001, Mr. Cappelli appealed, contending the Colorado trial court did not

have jurisdiction (1) to consider the revocation complaint because it was not

signed by the district attorney, or (2) to issue the arrest warrant because it was

predicated upon the unsworn revocation complaint signed by the probation

officer, instead of a written oath or affirmation as required by the state and

federal constitutions. In May 2002, the Colorado Court of Appeals affirmed the
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revocation of Mr. Cappelli’s deferred judgment and sentence, holding, as to the

first issue raised, that People v. Zabala, 706 P.2d 807, 808 (Colo. Ct. App. 1985),

was “dispositive,” and that Mr. Cappelli’s reliance on People v. Berquist,

916 P.2d 629, 630-31 (Colo. Ct. App. 1996), was “misplaced.” Aplt. App. at 70. 

The Court of Appeals likewise rejected the second issue raised by Mr. Cappelli,

stating that Colo. Rev. Stat. § 16-7-403

requires the trial court to rely upon the “report of a probation

officer,” not, as the defendant suggests, a sworn application. 

Consistent with the statute, the trial court reviewed the probation

officer’s complaint and based thereon found probable cause that

defendant had violated the conditions of his stipulation and that a

warrant was reasonably necessary.

Defendant does not articulate how he was prejudiced by the

issuance of the warrant. In fact, when the arrest warrant was issued,

the evidence to support the revocation had been gathered, and

defendant was already incarcerated at the Department of Corrections

for a separate conviction; therefore, the error, if any, was harmless. 

See Hollis v. People, 630 P.2d 68, 69 (Colo. 1981) (error is harmless

where no prejudice is shown). Thus, we reject this contention.

Aplt. App. at 71-72. In December 2002, the Colorado Supreme Court denied

Mr. Cappelli’s petition for a writ of certiorari. Mr. Cappelli did not initiate any

state post-conviction proceedings.

Mr. Cappelli then filed a pro se 28 U.S.C. § 2254 petition for a writ of

habeas corpus in the United States District Court for the District of Colorado. In

this timely petition, he alleged that the Colorado trial court lacked jurisdiction

because the district attorney did not sign the revocation complaint, thereby
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violating the prohibition against ex post facto laws. After respondents filed their

answer, Mr. Cappelli, through counsel, filed a response in which he alleged that

the Colorado trial court had violated the Fourth Amendment because it lacked

jurisdiction to issue an arrest warrant based upon the probation officer’s unsworn

revocation complaint. 

In an order filed December 22, 2005, the federal district court held that

Mr. Cappelli’s ex post facto argument had not been exhausted in state court and

was procedurally barred. Turning to the Fourth Amendment claim, the federal

district court stated that “[a]n examination of the briefs in the state case confirms

that Mr. Cappelli raised a Fourth Amendment argument before the state appeals

and supreme courts.” Aplt. App. at 103; see also id. at 29, 35, 84-85. But the

Colorado Court of Appeals did not explicitly address this claim under the Fourth

Amendment. See id. at 105. Rather, as noted by the federal district court and

explained in more detail above, the Colorado Court of Appeals rejected

Mr. Cappelli’s claim based upon Colo. Rev. Stat. § 16-7-403 and Mr. Cappelli’s

failure to demonstrate how he was prejudiced by the arrest warrant’s issuance. 

See Aplt. App. at 104-05. The federal district court further noted:

Although the state appeals court did not address the merits of

Mr. Cappelli’s Fourth Amendment claim, Mr. Cappelli alleges in his

[§ 2254 response] that the state trial court addressed the Fourth

Amendment claim through his motion to quash. [And,] [a]s

Mr. Cappelli . . . points out in [the response], he clearly had the

opportunity to litigate the Fourth Amendment claim in state court.
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Id. at 105; see also id. at 91-93. As such, the federal district court held that Stone

v. Powell barred Mr. Cappelli’s Fourth Amendment claim. Stone, 428 U.S. at 482

(“[W]here the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, the Constitution does not require that a state prisoner

be granted federal habeas corpus relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced at his trial.”); Gamble v. Okla.,

583 F.2d 1161, 1165 (10th Cir. 1978) (explaining that an “[o]pportunity for full

and fair consideration includes, but is not limited to, the procedural opportunity to

raise or otherwise present a Fourth Amendment claim,” a “full and fair

evidentiary hearing contemplated by Townsend [v. Sain, 372 U.S. 293 (1963)],”

and “recognition and at least colorable application of the correct Fourth

Amendment constitutional standards” (internal quotation marks and footnote

omitted)). In particular, the court observed: “Mr. Cappelli does not argue that he

did not have a procedural opportunity to litigate his Fourth Amendment claim in

state court or that the state courts either failed or refused to apply the correct and

controlling constitutional standards.” Aplt. App. at 106. See also id. at 4-9

(§ 2254 habeas petition); id. at 88-93 (§ 2254 response).

Thereafter, the federal district court denied Mr. Cappelli a COA, ruling that

he had not “made a substantial showing of the denial of a constitutional right.” 

Aplt. App. at 111 (quoting 28 U.S.C. § 2253(c)(2)). Mr. Cappelli subsequently

sought from us a COA, essentially lodging the same arguments he had lodged in
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the federal district court. See 28 U.S.C. § 2253(c)(1)(A). As previously

mentioned, this court granted his request for review, in part, and ordered briefing

as to “whether the absence of a sworn arrest warrant violated the Fourth

Amendment and affected the validity of the proceedings to revoke Mr. Cappelli’s

probation. . . . , including whether the district court correctly applied Stone v.

Powell, 428 U.S. 465 (1976), to an arrest warrant.” Order at 4. 

II. Discussion

Mr. Cappelli argues that the district court incorrectly precluded federal

habeas review by misapplying Stone because Stone “addressed the availability of

federal habeas corpus relief on Fourth Amendment suppression issues, [but did

not address] the Fourth Amendment as a whole.” Aplt. Reply Br. at 1-2

(emphasis omitted). He also contends, in conclusory fashion, that the state courts

“ignored the plain language of the Fourth Amendment, and did so in a manner

which constituted an unreasonable interpretation of controlling federal law, by

holding that the state could authorize a warrant upon less than the requirements

found in the express language of the Fourth Amendment.” Id. at 6. This

contention, however, was not raised in the federal district court. See Aplt. App.

at 4-9 (§ 2254 petition); id. at 88-93 (§ 2254 response); id. at 106 (observing that

Mr. Cappelli did not, in the federal district court, argue “that the state courts

either failed or refused to apply the correct and controlling constitutional

standards”). Further, Mr. Cappelli has failed “to articulate a reason for us to
Colo. Rev. Stat. § 16-11-205(6) (2000), in effect at the time the warrant for 1

Mr. Cappelli’s arrest was issued, provided:

A warrant for the arrest of any probationer for violation of the

conditions of probation may be issued by any judge of a court of

record upon the report of a probation officer or upon the verified

complaint of any person, establishing to the satisfaction of the judge

(continued...)

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depart from the general rule that” this court will not consider an issue that was

not raised in the district court. Walker v. Mather (In re Walker), 959 F.2d 894,

896 (10th Cir. 1992) (internal quotation marks omitted). Accordingly, we decline

to consider this argument. See id.

Respondents counter that Stone “is broad enough to exclude all Fourth

Amendment claims.” Aplee. Br. at 8 (relying on United States v. Johnson,

457 U.S. 537, 563 n.20 (1982) (“After Stone v. Powell . . . , the only cases raising

Fourth Amendment challenges on collateral attack are those federal habeas corpus

cases in which the State has failed to provide a state prisoner with an opportunity

for full and fair litigation of his claim, analogous federal cases under 28 U.S.C.

§ 2255, and collateral challenges by state prisoners to their state convictions

under postconviction relief statutes that continue to recognize Fourth Amendment

claims.”)). Respondents also assert that even though “the Colorado probation

revocation statutes refer to a ‘warrant,’ this is simply not the same type of warrant

referred to in the Fourth Amendment.” Aplee. Br. at 11 (citing Colo. Rev. Stat.

§ 16-11-205(6)).1
(...continued) 1

probable cause to believe that a condition of probation has been

violated and that the arrest of the probationer is reasonably

necessary. The warrant may be executed by any probation officer or

by a peace officer authorized to execute warrants in the county in

which the probationer is found.

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We review de novo whether a petitioner is precluded under Stone v. Powell

from litigating a Fourth Amendment claim in a § 2254 habeas proceeding. 

Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992). Here, the record reflects

that Mr. Cappelli raised his Fourth Amendment claim in the state courts. He was

afforded two hearings in the Colorado trial court on his motion to quash the

probation officer’s revocation complaint. The trial court determined that probable

cause existed for the arrest warrant. The Colorado Court of Appeals affirmed the

trial court’s determination of probable cause. And, Mr. Cappelli waived his

argument that the state courts “ignored the plain language of the Fourth

Amendment.” Aplt. Reply Br. at 6. Even if he had not waived this argument, he

points to no authority mandating reversal but ignored by the state court, and we

have found none. Cf. Gamble, 583 F.2d at 1163 (disapproving state court’s

application of principles “flatly condemned by the United States Supreme

Court”). Accordingly, the district court correctly determined that Mr. Cappelli is

not entitled to habeas corpus relief on his Fourth Amendment claim.
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III. Conclusion

The judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby

Senior Circuit Judge