FILED 

United States Court of Appeals 

Tenth Circuit 

UNITED ST ATES COURT OF APPEALS 

TENTH CIRCUIT 

May 31, 2005 

PATRICK FISHER 

Clerk 

BERNARD CASTRO, 

Petitioner-Appellant, 

V. 

JIM KEITH, JOE ORTIZ, and JOHN 

SUTHERS•, the Attorney General of 

the State of Colorado, 

Respondents-Appellees. 

No. 04-1440 

(D.C. No. 03-MK-962 (PAC)) 

(D. Colo.) 

ORDER AND JUDGMENT•• 

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges. 

Bernard Castro, a former state prisoner proceeding pro se, appeals from the 

denial of his 28 U.S.C. § 2254 habeas petition raising two claims contesting his 

conviction for criminally negligent homicide and one claim contesting his 

sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000). During the 

• Pursuant to Fed. R. App. P. Rule 43(c)(2), John Suthers is substituted as 

Attorney General of the State of Colorado for Ken Salazar. 

•• The case is unanimously ordered submitted without oral argument pursuant 

to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.l(G). This order and judgment is 

not binding precedent, except under the doctrines of law of the case, res judicata, 

and collateral estoppel. The court generally disfavors the citation of orders and 

judgments; nevertheless, an order and judgment may be cited under the terms and 

conditions of 10th Cir. R. 36.3. 

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pendency of the habeas proceedings the Supreme Court issued its decision in 

United States v. Blakely, 124 S.Ct. 2531 (2004). The district court denied 

Castro's petition, and granted a certificate of appealability ("COA") only as to the 

sentencing issue. For substantially the same reasons set forth by the district court, 

we DENY Castro's request for a COA for the remaining two issues. 1 As to the 

sentencing issue for which the district court granted a COA, the state defendants 

have moved for a dismissal of this issue as moot. Our review confirms that the 

sentencing issue is moot, and the appeal of that issue is therefore DISMISSED. 

Vv' e must first address the jurisdictional argument. Castro contends that the 

trial court, not a jury, made findings of aggravated circumstances under the 

Colorado sentencing scheme in violation of his rights under the Sixth and 

Fourteenth Amendments. The state defendants argue that Castro's claims 

1 Castro's petition was filed after April 24, 1996, the effective date of the 

Antiterrorism and Effective Death Penalty Act ("AEDP A"); as a result, AEDP A's 

provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.l 

(10th Cir. 1999) (citing Lindh v. Murphy. 521 U.S. 320 (1997)). AEDPA 

conditions a petitioner's right to appeal a denial of habeas relief under § 2254 

upon a grant of a COA. 28 U.S.C. § 2253(c)(l)(A). A COA may be issued "only 

if the applicant has made a substantial showing of the denial of a constitutional 

right." § 2253(c)(2). This requires Castro to 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) (quotations omitted). Because the district court denied Castro a COA 

for the first two issues, he may not appeal the district court's decision absent a 

grant of COA by this court. 

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attacking his sentence are moot, as Castro has completed his sentence and has 

been unconditionally released from custody during the pendency of the habeas 

proceedings. 2 We agree. In Carafas v. La Vallee, the Supreme Court held that a 

petitioner's challenge of his conviction is not rendered moot by the fact that the 

underlying sentence has expired because certain collateral consequences flowing 

from the conviction give the petitioner "a substantial stake in the judgment of 

conviction which survives the satisfaction of the sentence imposed on him." 391 

U.S. 234, 237 (1968). However, in Lane v. Williams, 455 U.S. 624, 631 (1982), 

the Court clarified that the Carafas rule does not apply when the petitioner 

purports to challenge his sentence and the sentence has been fully served. 

Because Castro has been unconditionally discharged from custody after having 

completed his sentence, his habeas claim attacking his sentence is moot. 3 

We turn next to Castro's two claims attacking his conviction, for which the 

2 Because Castro was serving his sentence when he filed his § 2254 petition, 

he has satisfied the "in custody" requirement of§ 2254. See Spencer v. Kemna, 

523 U.S. 1, 7 (1998). 

3 Although his sentence appeal is moot, we discern no error in the district 

court's evaluation of Castro's claim attacking his sentencing under Apprendi and 

Blakely. At the time the Colorado Court of Appeals evaluated Castro's 

sentencing arguments, its interpretation of Apprendi was not unreasonable. 

Further, we have held that Blakely did not announce a watershed rule of criminal 

procedure that would apply retroactively to initial habeas petitions such as 

Castro's. United States v. Price, 400 F.3d 844, (10th Cir. 2005). Further, 

Castro's claim does not fall within the "capable of repetition, yet evading review'' 

exception to the mootness doctrine because there is no reasonable expectation that 

Castro would be subject to the same action again. See Spencer, 523 U.S. at 17. 

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district court did not issue a COA. The district court determined that some of 

Castro's claims were exhausted, and some were not. Nevertheless, after 

according the appropriate AEDPA deference, the district court evaluated the 

mixed petition and denied Castro's claims on the merits under 28 U.S.C. 

§ 2254(b)(2), and denied a COA as to these two claims. We discern no error in 

the district court's evaluation of these claims. 

Under AEDPA, if a claim is adjudicated on the merits in state court, we 

will grant habeas relief only if that adjudication 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 "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)(l)-(2). After 

careful review of Castro's application, the district court's order denying relief, 

and the material portions of the record on appeal, we conclude that Castro's 

claims are without merit. 

In his § 2254 petition, Castro claims first that the untimely preliminary 

hearing, and improper transfer of the case between divisions of the trial court, or 

between County and District court amount to violations of his Due Process right 

under the Fifth and Fourteenth Amendments, i.e. that the cumulative effects of 

these alleged procedural errors rendered his trial procedurally unfair. In a 

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comprehensive twenty page opinion, adopting two recommendations by the 

magistrate judge, the district court found that Castro had failed to establish any 

fundamental unfairness arising from the alleged procedural defect, and further 

that he had failed to establish that the Colorado Court of Appeals' factual finding 

that Castro's second trial was timely commenced within six months following the 

mandate of the prior appeal was in error. We agree that Castro has failed to make 

the required showing of a violation of a federally protected right or an 

unreasonable application of the facts in light of the evidence in the state 

proceedings. 

Secondly, Castro claims that the state trial court made several evidentiary 

errors, specifically in excluding testimony from two surgeons who would have 

testified as to Castro's serious medical and physical disabilities and permanent 

injuries; excluding testimony concerning the victim's boxing skills, and refusing 

to give a jury instruction regarding the victim's fists being deadly weapons; and 

admitting a deceased witness's prior testimony. The district court evaluated each 

evidentiary claim and found that Castro had failed to establish the violation of a 

federally protected right. Additionally, the district court reevaluated the 

admission of the deceased witness's prior testimony which had been done under 

Roberts v. Ohio, 448 U.S. 56 (1980), after the Supreme Court issued Crawford v. 

Washington, 541 U.S. 36 (2004). After evaluating Crawford, which was issued 

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during the pendency of the habeas proceedings, the district court found that the 

trial court had not erred under either the Roberts or Crawford standard because 

Castro had an actual opportunity and similar motive to cross examine the 

deceased witness at the first trial. On our review of both the record and the 

district court order denying relief, we conclude that Castro has failed to make "a 

substantial showing of the denial of a constitutional right" to justify a COA on 

these claims. § 2253(c)(2). 

Accordingly we DISMISS the sentencing claim as moot, and DENY a 

COA on the remaining two claims. 

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ENTERED FOR THE COURT 

Carlos F. Lucero 

Circuit Judge 

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