Wallin v. Miller, 17-1167

Wallin was convicted of second-degree assault in Colorado and sentenced to 14 years; the Colorado Court of Appeals affirmed the conviction but remanded for resentencing because he lacked counsel at the original sentencing; he was resentenced to 14 years with counsel.
Wallin filed a 28 U.S.C. § 2254 habeas petition raising 21 claims; the district court denied all claims; on initial appeal the Tenth Circuit granted a COA on five claims and held two were procedurally barred, remanding three claims for further proceedings.
On remand the district court denied the three remanded claims on the merits (admission of victim’s confidential medical information, admission of allegedly involuntary statements, and abuse of subpoena power); Wallin appealed and sought a COA from this Court.
Wallin argued chiefly that the district court was required to hold an evidentiary hearing on the remanded claims; he did not expressly request a hearing below and did not identify conflicting evidence necessitating a hearing.
The Tenth Circuit concluded Wallin failed to make the substantial showing required for a COA, declined to grant a COA on the remanded claims, rejected additional issues raised on appeal as moot, procedurally barred, or waived, denied IFP status, and dismissed the appeal.

Issue	Wallin's Argument	State's Argument	Held
Certificate of appealability (COA) for remanded claims	District court erred by not holding an evidentiary hearing; appellate review warranted	Wallin did not make the required substantial showing or identify conflicting evidence; no hearing requested below	COA denied; no reasonable jurist would find district court’s assessment debatable or wrong
Admission of victim’s confidential medical information	Admission violated rights and warranted relief	District court properly reviewed and denied claim on the merits	Denied on the merits; COA not warranted
Admission of allegedly involuntary statements	Statements were involuntary and inadmissible	Statements were properly admitted; claim denied below	Denied on the merits; COA not warranted
Abuse of subpoena power	Subpoena use was abusive and prejudicial	No reversible abuse shown; claim rejected below	Denied on the merits; COA not warranted
Other trial errors (expert testimony, phone call admission, witness observing trial, sentencing counsel conflict, pre-sentence credit, prejudicial photos)	Various assertions that trial rulings were erroneous	Many claims were previously decided, procedurally barred, moot, or waived; improper service on AG also an issue	Most claims rejected as moot, procedurally barred, or waived; no relief granted

Erickson v. Pardus, 551 U.S. 89 (per curiam) (pro se pleadings construed liberally)
Frost v. Pryor, 749 F.3d 1212 (10th Cir. 2014) (notice of appeal can be construed as COA request)
Slack v. McDaniel, 529 U.S. 473 (standard for COA when claims denied on merits)
Anderson v. Attorney Gen. of Kansas, 425 F.3d 853 (10th Cir. 2005) (purpose of evidentiary hearing is to resolve conflicting evidence)
Coppedge v. United States, 369 U.S. 438 (IFP on appeal may be denied where appeal is frivolous)