from the United States District Court for the District of
Colorado (D.C. No. 1:16-CV-02266-RPM)
Anthony J. Shaheen (Christopher A. Chrisman and Jessica M.
Schmidt with him on the briefs), Holland & Hart LLP,
Denver, Colorado, for Petitioner - Appellant.
A. Crane, Senior Assistant Attorney General, Criminal Appeals
Section (Cynthia H. Coffman, Attorney General, with him on
the brief), Denver, Colorado, for Respondents - Appellees.
KELLY, PHILLIPS, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
Gabriel Acosta and his girlfriend, Chante Dillon, killed
their roommate, Kimberly Dotson, after Ms. Dotson wrecked
their car. Mr. Acosta and Ms. Dillon duct-taped, beat, and
suffocated Ms. Dotson to death, then bagged her body in trash
bags and threw her in a dumpster. They were both charged with
Medina was the only eyewitness to the murder. Before Mr.
Acosta's trial, Ms. Medina described the killing in a
recorded statement to the police, in two criminal depositions
at which she was cross-examined, and at Ms. Dillon's
trial, where she was again subjected to cross-examination.
But Ms. Medina was deemed unavailable to testify at Mr.
Acosta's trial, so the transcripts of her testimony were
read to the jury.
Acosta was convicted in Adams County, Colorado of
first-degree murder and sentenced to life without parole. The
Colorado Court of Appeals (CCA) affirmed his conviction. Mr.
Acosta then sought habeas relief in federal court under 28
U.S.C. § 2254. He claims he was denied his right to
confront witnesses against him and to the assistance of
counsel, both in violation of the Sixth Amendment. The
district court denied relief. Exercising jurisdiction under
28 U.S.C. §§ 1291 and 2253, we affirm.
place our analysis in context, we begin with a summary of (A)
the pretrial proceedings, (B) the state-court trial, (C) Mr.
Acosta's direct appeal, and (D) the district court's
ruling on Mr. Acosta's petition.
information filed on April 23, 2004, in Adams County,
Colorado, charged Mr. Acosta with first-degree murder for the
slaying of Ms. Dotson. On April 28, 2004, Christopher Decker,
an attorney with the Adams County Division of the State
Public Defender's Office, appeared as counsel for Mr.
trial neared, Ms. Medina failed to appear in response to
subpoenas for two hearings. So, she was jailed. And pursuant
to Colorado Rule of Criminal Procedure 15, the trial court
ordered the taking of Ms. Medina's deposition to preserve
her testimony for use at Mr. Acosta's and Ms.
Dillon's trials in the event she failed to appear again.
The court recognized that while taking a deposition in a
criminal case is an extraordinary remedy, this is "a
situation in which a witness has indicated her unwillingness
to appear at trial."
Medina's deposition on December 15, 2004, she was
cross-examined by Ms. Dillon's counsel, and when she was
again deposed on December 22, 2004, she was cross-examined by
Mr. Acosta's counsel. Ms. Medina's testimony provides
the horrific details of how Mr. Acosta and Ms. Dillon
hog-tied Ms. Dotson's hands and legs together and covered
her mouth with duct tape; how they punched and kicked her to
death; how they wrapped her body in trash bags; and how they
discarded her body in a dumpster.
the depositions were completed, Ms. Medina's attorney
moved for her release. The court granted the request on the
condition that Ms. Medina post a $2, 500 personal
recognizance bond and report to supervised release. Ms.
Medina failed to report to supervised release, so a warrant
for her arrest was issued on January 20, 2005. She was later
arrested and kept in custody until she testified at Ms.
Dillon's trial in March 2005. Ms. Dillon was convicted of
Acosta's trial was scheduled to begin on Monday, April 4,
2005. At a hearing held on March 31, 2005, Mr. Decker advised
the trial court that a non-waivable conflict requiring his
withdrawal had arisen. The trial court accepted counsel's
statement that he could not ethically disclose the conflict
and thus granted his motion to withdraw as Mr. Acosta's
court then engaged in a colloquy with Mr. Acosta during which
it gave him the choice of proceeding without counsel or of
waiving his right to speedy trial to allow newly appointed
counsel to prepare for trial-which the court concluded could
not be done in the four days remaining before the scheduled
trial date. Mr. Acosta waived speedy trial so he could be
appointed new counsel, and his trial was rescheduled to begin
on August 29, 2005.
April 6, 2005, Ms. Medina's counsel asked the trial court
to release Ms. Medina because Mr. Acosta's trial had been
rescheduled. The court stated: "As I have indicated
before, I am not going to keep Ms. Medina in jail forever on
this case. But at the same time, Ms. Medina, you know, every
time I release you, you disappear on us. Ms. Medina, what are
we going to do about this?" In response, Ms.
Medina's counsel stated that if Ms. Medina does not
report, then the court "can put her back in jail."
The court agreed that it would. It then asked whether Ms.
Medina had a place to live in the meantime. Ms. Medina said
she could stay with her brother. Satisfied with her response,
the court released Ms. Medina on a $500 recognizance bond,
ordered her to report for supervised release the next day,
and stated that this would be "a test on both you and me
to find out whether you're going to honor what I have to
say." The court then assured Ms. Medina that the
district attorney would provide her with transportation to
the court to ensure her attendance at trial. Mr. Acosta was
not present at the April 6th hearing. Nor was a lawyer
present on his behalf. New counsel for Mr. Acosta entered
their appearances on April 8, 2005.
Medina did not report for supervised release the following
day. Nor did she go to her brother's as she said she
would. Instead, Ms. Medina stayed in a Denver motel for a
night before leaving town. Upon returning to Denver, she had
no permanent residence and bounced from one motel to another.
arrest warrant for Ms. Medina issued almost three months
later on July 1, 2005. Despite some efforts to locate
her-which are detailed below-she was not found before Mr.
Acosta's trial. The trial court ruled that Ms. Medina was
"unavailable" and allowed her deposition
transcripts to be read to the jury. Ms. Medina was arrested
in Denver on unrelated charges on September 1, 2005, the same
day the transcripts were read to the jury. The Denver Sheriff
informed the Adams County Sheriff of Ms. Medina's arrest
by fax on September 2, 2005, and again on September 6, 2005.
There is no indication anyone who participated in the Adams
County investigation into Ms. Dotson's murder knew about
Ms. Medina's arrest before September 7, 2005.
Acosta's trial began on August 29, 2005. The prosecution
called four lay witnesses and eight law enforcement
witnesses. Brenda Masters testified that Ms. Dotson came to
her house the day before the murder. Ms. Dotson told Ms.
Masters she was scared that Mr. Acosta was going to kill her
because she had wrecked his car.
Medina met Mr. Acosta in jail. Mr. Medina testified that Mr.
Acosta told him he "killed some chick and threw her in a
trash can" and the police "found his hand print and
Acevedo testified that when he went to the apartment the day
after Ms. Dotson was slain, Mr. Acosta and Ms. Dillon
admitted they killed Ms. Dotson and said they needed help
with the body. Mr. Acevedo also attested that he saw Ms.
Dotson's body wrapped in black bags and that he witnessed
Mr. Acosta and Ms. Dillon put the lifeless body in the trash.
prosecution also presented evidence that eight of Mr.
Acosta's fingerprints and seven of his palm prints were
on the trash bags in which Ms. Dotson's body was wrapped,
and that four of his fingerprints were on a roll of tape that
was used. Although Ms. Medina was unavailable to testify at
trial, her deposition testimony featured prominently. The
prosecution referenced her testimony during its opening
statement, had her testimony read to the jury during its
case-in-chief, and relied on her testimony during closing
arguments to demonstrate Mr. Acosta was guilty of first- and
second-degree murder. The jury convicted Mr. Acosta of
first-degree murder and the court sentenced him to life
Acosta appealed the judgment of conviction, alleging numerous
violations of the Sixth Amendment. As relevant here, Mr.
Acosta maintained the use of Ms. Medina's deposition
testimony at trial violated his Confrontation Clause rights
because Ms. Medina was not actually unavailable. According to
Mr. Acosta, the prosecution simply failed to put forth
sufficient effort to find her before trial. He also argued
that he was denied the right to counsel at two critical
stages during his case: (a) on March 31, 2005, when he waived
his right to a speedy trial, and (b) on April 6, 2005, when
Ms. Medina was released from custody.
the CCA held that the prosecution "engaged in good
faith, reasonable efforts to produce [Ms. Medina] at trial,
and that she was unavailable for Confrontation Clause
the CCA held that Mr. Acosta was not denied his right to
counsel (a) at the March 31, 2005 hearing because the trial
court adequately advised him of his rights; or (b) at the
April 6, 2005 hearing because that hearing was a
ministerial-not a critical-stage of the criminal proceeding
and thus neither Mr. Acosta nor his counsel was required to
details from the CCA's decision are provided below in
connection with the legal issues presented.
Federal District Court
September 8, 2016, Mr. Acosta filed his 28 U.S.C. § 2254
Petition for a Writ of Habeas Corpus. As he did before the
CCA, Mr. Acosta argued he was denied the right to confront
witnesses against him and to the assistance of counsel.
district court first ruled the hearings held on March 31 and
April 6, 2005, were critical stages of the proceeding and
therefore "the rulings of the [CCA] were unreasonable
determinations of fact and unreasonable applications of the
law." The court next concluded the CCA's
determination that the prosecution engaged in good-faith
efforts to produce Ms. Medina "is an unreasonable
determination of the facts." But the court denied