UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

__________________________ ____________________ MARIO CHAVEZ,
Pe titioner - Appellant,

v. VINCENT HORTON, Warden; NEW MEXICO ATTORNEY GENERAL,
Re spondents - Appellees. No. 23-2084 (D.C. No. 1:19-CV -01151-KWR-LF) (D. N.M.)

__________________________ ____________________ ORDER

__________________________ ____________________ Before BACHARACH , BALDOCK , and MORITZ , Circuit Judges.

__________________________ ____________________ This case grew out of a fatal s hooting in New Mexico. The shooting led to state-court convictions of Mario Chavez for first-degree murder, armed robbery in the second degree, and tampering with evidence. Following the convictions , Mr. Chavez unsuccessful ly appealed and sought habeas relief in both state court and fe deral district court. He wants to appeal the rulings in federal c ourt on his claims involving

 violation of the Confrontation Clause,

 trial errors, and

 ineffective assistance of counsel. FILED United States Court of Appeals Tenth Circuit 

### May 24, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 12 To appeal, however, he needs a certi ficate of appealability. 28 U.S.C. § 2253(c)(1)(A). We decline to issue the certificate.
1. The availability of a certificate is affect ed by statutory limitations on habeas relief. To justify a certificate, Mr. Ch avez must “[make] a substantial showing of the denial of a constituti onal right.” 28 U. S.C. § 2253(c)(2). When a district court rejects a clai m on the merits, th e petitioner “must demonstrate that reasonable jurists would find the district court’s assessment of the cons titutional claims de batable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We appl y this standard against the backdrop of Mr. Chavez’s underlying burden to justify habeas relief. See Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (stating that when deciding whether to grant a certific ate of appealability, th e court “look[s] to the District Court’s application of [the Antiterrorism an d Effective Death Penalty Act] to petitione r’s constitutional claims and ask[s] whether that resolution was debatable among st jurists of reason”). This burden is heavy when th e state court has rejected a constitutional claim on the merits. In that ci rcumstance, federal law requires the petitioner to s how that the state court’ s decision was contrary to, or an unreasonable application of , Supreme Court precedent. 28 U.S.C. Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 23 § 2254(d)(1). 1 A decision is considered unreasonable only if every fair-minded jurist would have “‘reach[ed] a different conclusion.’” Andrew v. White , 62 F.4th 1299, 1317 ( 10th Cir. 2023) (quoting Brown v. Davenport , 596 U.S. 118, 144 (2022)), pet. for cert. docketed (U.S. Jan. 25, 2024) (No. 23- 6573). But these st atutory limi tations apply only when the state court ha d reached the merits of the federal claim. See Gipson v. Jordan , 376 F.3d 1193, 1196 (10th Cir. 2004). Mr. Chavez argues that the federal district court shouldn’t have applied these limitations because the state court hadn’t considered the merits of his constitutional claims. For this argument, Mr. Chavez bears the burden. See Simpson v. Carpenter , 912 F.3d 542, 583 (10th Cir. 2018) (“The petitioner bears the burden of showing a claim was not adjudicated on the merits in state court.”). But in federal district court, Mr. Chavez hadn’t made this argument in his habeas petition or his supplements to the pet ition. He instead waited until his reply brief to ar gue that the state court ha d overlooked the merits of his constitutional clai ms. The federal district court concluded that the reply brief had been too late for Mr. Chavez to make this argument. See,

1 A petitioner may also obtain ha beas relief by demonstrating that a state court’s decision on a federal claim “was ba sed on an unreasonable determination of the fact s in light of the eviden ce presented in the State court proceeding .” 28 U.S.C. § 2254 (d)(2). But Mr. Chav ez does not point to an unreasonable factual determinatio n in state court. Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 34 e.g. , United States v. Beebe , 807 F. Supp. 2d 1045, 1054 (D. N.M. 2011) (stating that the District of New Mexico “normally does not entertain arguments raised for the fi rst time in a reply brief”). If we were to entertain an appeal on this issue, Mr. Chavez would bear the burden of showing that the federal district court had abused its discretion in deciding that the reply brief was too late. See United States v. Coyote , 963 F.2d 1328, 1332 (10th Cir. 1992) (reviewing a decision on waiver for an abuse of discretion). Mr. Chavez doesn’t deny that he needed to make this argument before his reply brief. But he insist s that he raised the argument in his habeas petition when he referred to state-court documents and recounted the procedural history. The federal district court rejected Mr. Chavez’s reliance on state-court documents, re asoning that he had referred to hundreds of pages rather than poin t to specific docu ments. Mr. Chavez questions this reasoning, but the federa l district court ha d no obligation to scour the state-cour t record in order to find where the pe titioner had raised this argument. See SIL-FLO, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1514 (10th Cir. 1990) (stating that we didn’t need to scou r a voluminous transcript when the appellant failed to give spec ific record cites). And Mr. Chavez’s recitation of the procedural history didn’t constitute a separate argument. Apart from these procedural shortcomings, however, Mr. Chavez hasn’t shown a failure of the state cour t to decide the merits of his claims. Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 45 Even when a state court doesn’t mentio n the federal basis for a claim, we presume that the court decided the merits of the federal claim. See Simpson v. Carpenter , 912 F.3d 542, 583 (10th Cir. 2018). A nd Mr. Chavez hasn’t made a colorable showing to rebut that presumption. 2 Mr. Chavez thus hasn’t shown that reasonable jurists could debate the district court’s ruling on waiver or its application of the st atutory limitations on habeas relief.
2. Mr. Chavez has not presented a reasonably debatable habeas claim involving violation of the Confrontation Clause or a related claim of ineffective assistance. Mr. Chavez claims that the state co urt committed two violations of the Sixth Amendment’s Conf rontation Clause. The fi rst claim grew out of an alleged conversation hour s after the murder. At th at time, a codefendant (Mr. Eloy Montano) allegedl y told his wife that he thought he had been set up by Mr. Chav ez. Mr. Montano didn’t testify at the trial, but the wife was allowed to testify about this statem ent. The second cl aim involves the introduction of Mr. Montano’s en tire interrogatio n by the police.

2 In Mr. Chavez’s stat e habeas procee dings, the state supreme court issued summary orders denying certiorari. But we presume that the court rested on the same reasons give n by the state district court. See Ylst v. Nunnemaker , 501 U.S. 797, 802–04 (1991) (presuming th at “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders uphold ing that judgment or re jecting the same claim rest upon the sa me ground”). Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 56 2.1. Mr. Chavez doesn’t pr esent a reasonably debatable habeas claim involving violation of the Confrontation Clause. The Confrontation Clause would be violated only if Mr. Montano’s out-of-court statements had been “testimonial.” Crawford v. Washington , 541 U.S. 36, 59, 68 ( 2004). And even if the statements could be characterized as testimonial , Mr. Chavez would need to show that a Supreme Court opinion had clearly established this characterization. See
28 U.S.C. § 2254(d)(1); see also House v. Hatch , 527 F.3d 1010, 1015 (10th Cir. 2018) (requiring “federal habeas courts to deny relief that is contingent upon a rule of la w not clearly es tablished”).
For Mr. Montano’s statement to his wife, Mr. Chavez doesn’t identify a Supreme Court opinion clea rly establishing the statement as testimonial . A statement is ge nerally considered testimonial when the declarant makes a formal declaration in order to establish past events potentially bearing on a future prosecution. United States v. Morgan , 748 F.3d 1024, 1038 ( 10th Cir. 2014). Even if we were to consider the arguments in Mr. Chavez’s supplemental habeas petition, he hasn’t cited any Supreme Court opinions suggesting that a codefendant’s statemen t to a spouse, prior to any contact from law enforcement, woul d be characterized as testimonial . So the state court’s consideration of this Confrontation Clause claim didn’t violate Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 67 clearly established Supreme Court precedent. And Mr. Chavez hasn’t shown a reasonably debatable argument to the contrary. Mr. Chavez also argues that introduction of Mr. Montano’s entire interrogation violat es the Confrontation Clause . Mr. Chavez initially tried to use parts of Mr. Montano’s in terrogation while challenging the admissibility of other part s. But the state court f ound that the defense had then withdrawn its challenge under th e Confrontation Clause by offering the entire interr ogation into evidence. Given that finding, the federal district court ruled that Mr. Chavez had not justified relief under the habeas standard. Mr. Chavez doesn’t pr esent a colorable ba sis to question that ruling.
2.2. Mr. Chavez doesn’t pr esent a reasonably debatable habeas claim involving ineffective as sistance of counsel. Mr. Chavez also claims that his counsel at trial and on appeal provided ineffective assist ance in failing to raise the Confrontation Clause. For this claim, Mr. Chav ez acknowledges th at his trial coun sel invoked the Confrontation Clause when challenging the admissibility of Mr. Montano’s statement to his wife. But Mr . Chavez claims that his

 trial attorney should have raised the Confrontatio n Clause when objecting to the intr oduction of Mr. Mont ano’s interrogation and

 appellate counsel shou ld have raised the Confrontation Clause when appealing th e conviction. The state court ruled that Mr . Chavez’s trial counsel had Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 78  addressed the Confrontation Clause and

 made reasonable strategic decisions regarding the use of Mr. Montano’s interrogation. The state court also ruled that Mr. Ch avez’s appellate c ounsel had made a reasonable strategic decisi on to forgo challenging the admissibility of the entire interrogation. For habeas relief, Mr. Chavez needed to show that the state court’s decisions had been contrary to, or an unreasonable application of, a Supreme Court opinion addressing ineffective assistance of counsel

. 28 U.S.C. § 2254(d)(1); see also Part 2.1, above. The state court applied the Supreme Court’s seminal opin ion on ineffective assistance: Strickland v. Washington , 466 U.S. 668 (1984). There the Court had required a showing of both deficient legal representation and prejudice. Id. at 687–88, 694. So Mr. Chavez had to show the state co urt’s application of Strickland had been unreasonable. Mr. Chavez didn’t explain in the di strict court how the state court had unreasonably applied Strickland or another Supreme Court precedent. Mr. Chavez insists th at he made this showing in his state-court filings. But the federal district court reasoned that Mr. Chavez hadn’t properly incorporated those documents. And Mr . Chavez provides no authority for his apparent assumption that the fede ral district court needed to excavate the voluminous state-court record to see where he had made this showing. Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 89 See Part 1, above. Absent any discussion of the relevant habeas standard, Mr. Chavez couldn’t ha ve met his burden. See Part 1, above. So the federal district court’s rejection of his in effective-assistance claims wasn’t reasonably debata ble or wrong.
3. Mr. Chavez doesn’t pr esent a reasonably debatable habeas claim of a denial of due pr ocess from multiple tr ial errors or a related failure to provide effectiv e assistance of counsel. In the habeas petition, Mr. Chavez also claimed a denial of due process from multiple trial errors. The district cour t rejected this claim, ruling that Mr. Chavez had not shown a failure of the state court to reasonably apply a Suprem e Court opinion. Mr. Ch avez hasn’t shown how a reasonable jurist could question the correctness of that ruling. Mr. Chavez also presents a related ineffective-assistance claim based on these trial errors. To prevail, Mr. Chavez would need to show that the state court’s rejection of this claim had been unreasonable or contrary to the Supreme Court’s test for ineffective assist ance of counsel

. See Parts 1 & 2.2, above. But he hasn’t made a co lorable showing under this standard.
* * * We thus deny a certificate of ap pealability and di smiss the appeal. Entered for the Court

Robert E. Bacharach Circuit Judge Appellate Case: 23-2084 Document: 010111055030 Date Filed: 05/24/2024 Page: 9