F I LED

United States Court of Appeals

Tenth Circuit

April 17, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EUGENE VELARDE,

Petitioner - Appellant,

v.

LARRY REID, Warden, Centennial

Correctional Facility; JOHN

SUTHERS, Attorney General of the

State of Colorado,

Respondents - Appellees.

No. 06-1545

(D.C. No. 03-CV-00615-RPM)

(D. Colo.)

ORDER DENYING A CERTIFICATE

OF APPEALABILITY

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Eugene Velarde, a Colorado state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. For substantially the same reasons set forth by the

district court, we DENY a COA and DISMISS.

Velarde challenges his April 9, 1993 conviction, following a jury trial, for

distribution of a controlled substance and conspiracy to distribute a controlled

substance. He was sentenced under Colorado’s habitual criminal statute to life

imprisonment. Velarde sought relief on direct and collateral appeal in Colorado
 The Antiterrorism and Effective Death Penalty Act conditions a 1

petitioner’s right to appeal a denial of habeas relief under § 2254 upon a grant of

(continued...)

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state court before bringing a timely habeas petition in federal court. Although he

sought relief on additional grounds in his habeas petition to the district court,

Velarde limits his application for COA from this court to two claims: (1) He was

improperly denied his Sixth Amendment right of confrontation when the trial

court admitted tapes recorded by a Drug Enforcement Agency (“DEA”)

informant, Norma Lopez, of the charged drug transaction; and (2) His trial

counsel’s performance was constitutionally deficient due to counsel’s decision not

to impeach the credibility of Lopez.

A writ of habeas corpus as to either of Velarde’s claims may not issue

unless the state court adjudication: “(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; or (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). In

order to issue a COA, we must conclude 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)

(quotations omitted).1
(...continued) 1

a COA. 28 U.S.C. § 2253(c)(1)(A).

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We turn first to Velarde’s argument that the admission of the Lopez

recordings violated his Sixth Amendment right under the Confrontation Clause. 

Although the government intended for Lopez to testify, she was murdered days

after the charged transaction. Accordingly, it was forced to rely on tape

recordings of the transaction that were made by Lopez via a DEA-installed wire

transmitter. We are hamstrung in our review of this claim by Velarde’s failure to

include in the record the trial court’s written order denying his motion to suppress

the recordings. However, the transcript of the court’s pretrial discussion with

counsel indicates the court believed the recordings to be hearsay, but considered

them sufficiently reliable, as “real-world transactions [that] have the ring of truth

to them,” to be admitted under Colorado’s residual hearsay exception. See Colo.

R. Evid. 807. On direct appeal the Colorado Court of Appeals affirmed on

alternate grounds, holding that the recordings were admissible as res gestae

evidence. Relying on People v. Quintana, 882 P.2d 1366 (Colo. 1994) and People

v. Arnold, 826 P.2d 365 (Colo. Ct. App. 1991), the court of appeals determined

that the recordings were not hearsay, because they “were not offered for their

truth, but rather to illustrate the character of the charged crime – distribution of a

controlled substance and conspiracy to distribute.” 
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“In considering a Confrontation Clause claim on habeas . . . we review a

state court decision by assessing whether it is reasonably supported by the record

and whether its legal analysis is constitutionally sound.” Paxton v. Ward, 199

F.3d 1197, 1209 (10th Cir. 1999). “As a general matter, federal habeas corpus

relief does not lie to review state law questions about the admissibility of

evidence, and federal courts may not interfere with state evidentiary rulings

unless [they] rendered the trial so fundamentally unfair as to constitute a denial of

federal constitutional rights.” Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir.

2001) (quotations and citations omitted). 

Several aspects of the recordings’ admission as res gestae evidence give us

pause, including: (1) the trial court’s failure to instruct the jury that they were

being admitted only as res gestae, see Quintana, 882 P.2d at 1379 (Erickson, J.,

concurring) (noting that res gestae was not at issue before the trial court); (2) the

fact that the recordings were made by an informant with a motive to direct the

conversations; and (3) the heavy reliance placed on the recordings as direct

evidence of the charged crime.

Nevertheless, we may not overturn the trial court’s decision to admit the

recordings absent some showing that their admission violated Velarde’s federal

constitutional rights, and no such showing has been made. Rather, the Colorado

Court of Appeals’ holding that the recordings were admissible as res gestae

evidence is a reasonable construction of Quintana. There is no question that the
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recordings are “linked in time and circumstances with the charged crime,” and

could be used to provide the jury “with a full and complete understanding of the

events surrounding the crime.” Quintana, 882 P.2d at 1373 (quotations omitted). 

Velarde cites no Supreme Court or other federal case that casts doubt on

Quintana, nor are we aware of any Supreme Court case defining the constitutional

parameters of the admissibility of res gestae evidence. As a general matter,

contemporaneous recorded statements have long been considered admissible as

“verbal acts” of the declarant. See Mut. Life Ins. Co. v. Hillmon, 145 U.S. 285,

296 (1892) (“Such declarations are regarded as verbal acts, and are as competent

as any other testimony, when relevant to the issue. Their truth or falsity is an

inquiry for the jury.”). In short, we can discern no basis to grant Velarde COA on

this claim.

We next turn to Velarde’s ineffective assistance claim. As noted by the

district court, this claim is procedurally defaulted because it was not raised in

state court proceedings and is now barred under Colorado law. See Colo. Rev.

Stat. § 16-5-402. We are precluded from reviewing claims defaulted on adequate

state procedural grounds unless Velarde demonstrates “cause and prejudice or a

fundamental miscarriage of justice.” Smith v. Mullin, 379 F.3d 919, 925 (10th

Cir. 2004). Because Velarde does not present evidence sufficient to meet these

standards, we are foreclosed from considering this claim on the merits. See

Cannon v. Gibson, 259 F.3d 1253, 1265-66 (10th Cir. 2001). 
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Velarde’s request for a COA is DENIED and his petition is DISMISSED. 

Because we conclude that Velarde presents a “reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal,” McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation omitted), we

GRANT his motion to proceed on appeal in forma pauperis. 

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge