F I L E D

United States Court of Appeals

May 18, 2006

ROBERT SCHWARTZ,
Petitioner - Appellant,
v.
DONICE NEAL, Warden of the
Arrowhead Correctional Facility;
ATTORNEY GENERAL OF THE
STATE OF COLORADO,

No. 05-1418
(D. Ct. No. 03-CV-1423-ZLW-CBS)
(D. Colo.)

Respondents - Appellees.

ORDER

Before TACHA, Chief Circuit Judge, ANDERSON, and HARTZ, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
Petitioner-Appellant Robert Schwartz, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) and leave to proceed in forma pauperis (IFP) to
challenge the District Courts denial of his petition for writ of habeas corpus under 28
U.S.C. 2254. Exercising jurisdiction under 28 U.S.C. 1291 and 2253 (c)(1), and
construing Mr. Schwartzs pro se application liberally, see Cummings v. Evans, 161 F.3d

610, 613 (10th Cir. 1998), we DENY his request for a COA, DENY his request to
proceed IFP, and DISMISS this appeal.
I. BACKGROUND
In 1989, Mr. Schwartz was convicted on three counts of sexual assault on a child
and three counts of aggravated incest. On appeal, a division of the Colorado Court of
Criminal Appeals reversed Mr. Schwartzs conviction and remanded the case for a new
trial. In 1993, prior to trial, Mr. Schwartz pleaded guilty to three counts of sexual assault
on a child by one in a position of trust and three counts of aggravated incest. He was
sentenced to thirty years imprisonment.
After sentencing, Mr. Schwartz filed a petition for state post-conviction relief
pursuant to Colo. R. Crim. P. 35(c), which the trial court denied. Mr. Schwartz then
appealed both the trial courts denial of his Rule 35(c) motion, as well as his sentence.
The Colorado Court of Appeals affirmed his sentence but remanded the case to the trial
court to make findings on the Rule 35(c) claims. In the interim, Mr. Schwartz sought
review of his sentence and filed a petition for writ of certiorari to the Colorado Supreme
Court; that court denied review on December 2, 1997. The trial court then held a hearing
on Mr. Schwartzs Rule 35(c) motion and again denied his claims.
In September 1998, Mr. Schwartz filed a motion pursuant to Colo. R. Crim. P.
35(b), seeking a reduction of his sentence. The trial court denied the motion as time
barred and on a motion for reconsideration denied his claims on the merits. The Colorado
Court of Appeals affirmed and the Colorado Supreme Court denied Mr. Schwartzs
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petition for writ of certiorari in August 2001. Mr. Schwartz then moved for
reconsideration of the trial courts denial of his Rule 35(b) motion. The trial court denied
the motion; the Colorado Court of Appeals affirmed; and the Colorado Supreme Court
denied his petition for certiorari in March 2004.
Mr. Schwartz filed this petition for writ of habeas corpus in July 2003, raising
thirteen claims of error.1 The magistrate judge issued recommendations and findings, and
concluded that none of Mr. Schwartzs claims constituted a basis for habeas relief. The
District Court reviewed and adopted the findings of the magistrate judge, dismissed Mr.
Schwartzs petition, and denied a COA. Mr. Schwartz now seeks a COA from this Court.
II. DISCUSSION
A.

Standard of Review
A COA can issue only if the applicant has made a substantial showing of the

denial of a constitutional right. 28 U.S.C. 2253(c)(2). Furthermore, [a]n application

Because the Colorado Supreme Court did not deny Mr. Schwartzs petition for
writ of certiorari as to his motion for a reduction of his sentence until March 2004, he had
not exhausted this claim when he filed this habeas petition. This Court therefore denied a
COA in 2003 on those grounds and dismissed that claim without prejudice.
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of reason would find it debatable whether the district court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In addition, the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) requires that, deferential treatment of state court decisions must be
incorporated into our consideration of a habeas petitioners request for COA. Dockins v.
Hines, 374 F.3d 935, 938 (10th Cir. 2004). Because we incorporate AEDPA deference
into our COA analysis Mr. Schwartz cannot obtain a COA unless we find that reasonable
jurists could debate whether the Colorado courts decision was not merely wrong but
unreasonable, either as a determination of fact or as an application of clearly established
federal law. Id. at 940. A state courts decision is contrary to clearly established federal
law if it, applies a rule that contradicts the governing law set forth in [the Supreme
Courts] cases or if it confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a different result. Price v.
Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 40506
2000)).
B.

Merits
Mr. Schwartz raised thirteen claims of error relating to, inter alia, the entering of

his guilty plea and judicial misconduct. The District Court adopted the magistrate judges
findings that all but one of his claims were unexhausted. In his application for COA to

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this Court, Mr. Schwartz raises the same issues he raised to the District Court.2 We have
reviewed the District Courts ruling, the record on appeal, and Mr. Schwartzs
submissions to this Court and we conclude that jurists of reason would not find debatable
whether the District Court was correct in its procedural ruling. See Slack, 529 U.S. at
484. Therefore, we deny Mr. Schwartzs request for a COA on those issues for
substantially the same reasons set forth in the magistrate judges report and
recommendation.
The only claim which Mr. Schwartz exhausted is his claim that the trial court
violated his right to due process by imposing a thirty-year sentence.3 We afford wide
discretion to the state trial courts sentencing decision, and challenges to that decision are
not generally constitutionally cognizable, unless it is shown the sentence imposed is
outside the statutory limits or unauthorized by law. Dennis v. Poppel, 222 F.3d 1245,
1258 (10th Cir. 2000). Indeed, our review generally ends once we determine the
sentence is within the limitation set by statute. Id.
Mr. Schwartz pleaded guilty to three counts of aggravated incest and three counts
of sexual assault on a child by one in a position of trust. These crimes are Class 3

Mr. Schwartz has also filed a brief in which he makes numerous claims of error
related to the District Courts denial of his COA. We construe this brief as an addendum
to his COA application. See Fed. R. App. P. 22(b)(2).
3

To the extent Mr. Schwartz argues that his sentence violates Colorado state law,
this claim is not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S.
62, 6768 ([I]t is not the province of a federal habeas court to re-examine state-court
determinations on state-law questions.).
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felonies under Colorado law and each carries a presumptive sentencing range of four to
sixteen years. See Colo. Rev. Stat. 18-1.3-401 (1)(a)(IV). The trial court sentenced him
to ten years imprisonment on each count of sexual assault, to be served consecutively,
and ten years imprisonment on each count of incest, to be served concurrently with the
other sentences. This resulted in a thirty-year sentence. The trial court acted within its
discretion to sentence Mr. Schwartz to serve the three sexual assault counts consecutively,
as they were charges relating to three separate incidents. See Qureshi v. District Court,
727 P.2d 45, 47 (Colo. 1986); People v. Baker, 703 P.2d 631, 632 (Colo. App. 1985).
Therefore, his sentence, which was within the limitations set by Colorado law, affords no
basis for relief under 28 U.S.C. 2254(d)(1). As such, we deny Mr. Schwartzs request
for a COA on this issue.
IV. CONCLUSION
For the foregoing reasons we DENY Mr. Schwartzs application for a COA,
DENY all other pending motions by Mr. Schwartz as moot, and DENY Mr. Schwartzs
request to proceed in forma pauperis.
ENTERED FOR THE COURT,

Deanell Reece Tacha

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