Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 30, 2026 _________________________________ Christopher M. Wolpert Clerk of Court KEVIN A. LARSON,
Petitioner - Appellant,
v. No. 25-1233 (D.C. No. 1:24-CV-01979-SKC) SHANE STUCKER; THE ATTORNEY (D. Colo.) GENERAL OF THE STATE OF COLORADO,
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________
Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________
Kevin A. Larson, a Colorado prisoner, seeks a certificate of appealability (COA)
under 28 U.S.C. § 2253(c)(1)(A) to appeal the district court’s denial of his 28 U.S.C.
§ 2254 petition for habeas corpus relief. We deny a COA.
I. Background
In 2014, Mr. Larson was charged with five crimes involving sexual abuse and
exploitation of a minor. He entered a plea agreement under which he would maintain his
innocence pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970), while pleading
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 2
guilty to one of the charged crimes. However, he later withdrew that plea, after the
prosecution gave notice it would present evidence of aggravating circumstances which
could increase the minimum term of his sentence. He was then convicted by a jury on all
five charged crimes and sentenced to an indeterminate term of 36 years to life.
Mr. Larson appealed and the Colorado Court of Appeals (CCA) affirmed his
conviction. People v. Larson (Larson I), No. 17CA0774, 2018 WL 11714832
(Colo. App. Aug. 30, 2018) (unpublished). The Colorado Supreme Court denied
certiorari. Mr. Larson then sought post-conviction relief, which the state district court
denied. The CCA again affirmed. People v. Larson (Larson II), No. 22CA1105,
2023 WL 12061341, at *1 (Colo. App. Oct. 19, 2023) (unpublished). And the Colorado
Supreme Court again denied certiorari. Mr. Larson then filed a § 2254 petition. The
district court denied his petition and denied a COA. He now requests a COA from this
court.
II. Legal Standards
To appeal, Mr. Larson must first obtain a COA by making “a substantial showing
of the denial of a constitutional right.” § 2253(c)(2). This requires him to show that
“reasonable jurists could debate whether (or, for that matter, agree that) [his] 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) (internal quotation marks omitted).
In addition, because the Colorado courts rejected all three of Mr. Larson’s habeas
claims on their merits, our evaluation of his COA application incorporates the
2 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 3
“deferential treatment of state court decisions” under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Pacheco v. Habti, 62 F.4th 1233, 1247 (10th Cir.
2023) (internal quotation marks omitted). Mr. Larson may obtain relief only if the state
courts’ resolution of his claims was either “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” § 2254(d)(1), or “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding,” § 2254(d)(2).
In applying this standard, “deference and reasonableness are our watchwords.”
Meek v. Martin, 74 F.4th 1223, 1248 (10th Cir. 2023). We must “give the benefit of the
doubt” to the state courts’ merits decisions. Klein v. Martin, 146 S. Ct. 589, 596 (2026)
(internal quotation marks omitted). To obtain § 2254 relief, Mr. Larson “must show far
more than clear error”; he “must instead establish that the state court blundered so badly
that every fairminded jurist would disagree with the decision.” Id. (brackets and internal
quotation marks omitted). 1
III. Discussion
A. Claim One—Exclusion of Alternate Suspect Evidence
Before trial, Mr. Larson sought to introduce evidence to show three former
boyfriends of the victim’s mother could also have committed the crimes. The trial court
1 We liberally construe Mr. Larson’s pro se filings but do not act as his advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
3 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 4
excluded this proffered evidence as irrelevant. Mr. Larson argues its evidentiary ruling
violated his right to present a complete defense.
The CCA rejected this claim on its merits. 2 It reasoned Mr. Larson’s proffered
evidence showing that the other men “lavished gifts and attention on the victim” and she
“acted out around” one of them provides only circumstantial evidence they “might
have had a motive or opportunity to commit sexual crimes” and is “insufficient to create
a non-speculative connection” to the crimes for which Mr. Larson was convicted.
Larson I, 2018 WL 11714832, at *3. As to evidence the other men were previously
charged with sexual offenses against the victim and another child, the CCA concluded
that absent a showing of similarity to the crimes Mr. Larson was accused of, the prior
conduct and charges “[did] not give rise to a non-speculative connection between an
alternate suspect and the crimes charged in [Mr. Larson’s] case.” Id.
The district court concluded the CCA’s decision was reasonable. It recognized the
Supreme Court has held that evidence related to alternate suspects “‘may be excluded
where it does not sufficiently connect the other person to the crime, as for example,
where the evidence is speculative or remote, or does not tend to prove or disprove a
material fact in issue at the defendant’s trial.’” R. at 418 (quoting Holmes v. South
2 Mr. Larson argues for a COA based on an apparent non-substantive typographical or scrivener’s error in the district court’s order, which incorrectly stated “[t]he CCA concluded that the trial court did abuse its discretion.” R. at 414 (emphasis added). This provides no basis for relief. The district court went on to quote in full the CCA’s reasoning for affirming the trial court’s ruling, including the statement “[the CCA] cannot conclude that the trial court abused its discretion.” Id. at 416 (quoting Larson I, 2018 WL 11714832, at *3). 4 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 5
Carolina, 547 U.S. 319, 327 (2006)). It agreed with the CCA that Mr. Larson’s proffered
evidence was speculative, concluding “[a]t most, [it] tends to show that, in addition to
Mr. Larson, other men might [also] have sexually abused the victim. That does not mean
Mr. Larson didn’t commit the crimes for which he was tried and convicted.” R. at 418.
Reasonable jurists would not debate that ruling. Mr. Larson does not identify a
Supreme Court holding the CCA unreasonably applied. See Martinez v. Quick, 134 F.4th
1046, 1056 (10th Cir.) (“In reviewing under § 2254(d)(1), we must first determine the
relevant clearly established law, which comes exclusively from the holdings of the
Supreme Court, not its dicta.” (internal quotation marks omitted)), cert. denied, 146 S. Ct.
385 (2025). Arguing the evidence should have been admitted, he relies on the Colorado
Rules of Evidence and Colorado court cases. This could at most show the CCA
erroneously applied Colorado law. But Mr. Larson cannot obtain federal habeas relief
based on a violation of state law. See § 2254(d)(1); Davis v. Workman, 695 F.3d 1060,
1078 (10th Cir. 2012) (“[E]ven if the state rule[s] [were] violated, [a habeas petitioner]
cannot obtain relief on that ground under § 2254, which limits review to claims based on
federal law.”). And the very broad statements he cites discussing a defendant’s right to
present a defense cannot support relief under § 2254(d)(1). See Martinez, 134 F.4th
at 1064 (“[H]oldings that speak only at a high level of generality do not supply clearly
established federal law under AEDPA.” (internal quotation marks omitted)). 3
3 Mr. Larson argues the district court erred by stating he had not “explain[ed] how the alternate suspect evidence would support his defense against the crime charged,” because he contends his briefing on direct appeal and in state post-conviction proceedings had explained in detail how this evidence tends to show his innocence. Aplt. Opening Br. 5 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 6
B. Claim Two—Right to Confront Victim’s Mother
The trial court allowed the victim’s mother to invoke her Fifth Amendment
privilege. It held hearings which established that federal officials wanted her to be
prosecuted based on information discovered in the investigation of Mr. Larson. The trial
court concluded her testimony could “lead to some type of pimping” or similar charges
and ruled no party could call her as a witness except to ask general questions about
“demographic information.” Larson I, 2018 WL 11714832, at *4. Mr. Larson argues its
ruling violated his Sixth Amendment rights to confront and question witnesses against
him and prevented him from presenting exculpatory testimony.
The CCA rejected this claim, applying the rule that “before a court may compel a
witness to respond . . . it must be ‘perfectly clear’ that the witness’s answers ‘cannot
possibly’ have a tendency to incriminate.’” Id. (quoting People v. Blackwell, 251 P.3d
468, 474 (Colo. App. 2010)).
The district court concluded the state courts had “reasonably concluded [the]
Mother had a real and appreciable fear of self-incrimination were she to testify.” R. at
423. It found the state courts’ factual findings “amply supported by the record, which
was carefully developed . . . over the course of two separate hearings,” and that
Mr. Larson had not shown the CCA’s decision was contrary to or unreasonably applied
any clearly established federal law. R. at 424. It also rejected Mr. Larson’s argument
at 6. However, he cannot satisfy Rule 28 of the Federal Rules of Appellate Procedure merely by incorporating or referring to arguments made in earlier proceedings. See Rocky Mountain Wild v. Dallas, 98 F.4th 1263, 1304 n.20 (10th Cir. 2024). 6 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 7
that the mother should have been required to invoke the Fifth Amendment on the witness
stand in response to questions, observing this court has “‘repeatedly held that neither the
prosecution nor the defense may call a witness to the stand simply to compel [her] to
invoke the privilege against self-incrimination.’” R. at 425 (quoting United States v.
Rivas-Macias, 537 F.3d 1271, 1275 n.3 (10th Cir. 2008) (collecting cases)).
Reasonable jurists would not debate the district court’s ruling. The CCA’s
decision was consistent with established federal law. Compare Larson I, 2018 WL
11714832, at *4 with United States v. Chalan, 812 F.2d 1302, 1310 (10th Cir. 1987)
(“A trial judge should order the witness to answer questions only if it is ‘perfectly clear,
from a careful consideration of all the circumstances in the case, that the answers cannot
possibly’ tend to incriminate the witness.” (ellipsis and brackets omitted) (quoting
Hoffman v. United States, 341 U.S. 479, 488 (1951)). Mr. Larson repeats his general
contention that the trial court’s ruling is unfair and violated the Sixth Amendment. But
he does not identify any Supreme Court precedent that is inconsistent with the CCA’s
decision. Nor does he argue the state courts’ factual determinations were unreasonable.
C. Claim Three—Ineffective Assistance of Counsel
In his third habeas claim, Mr. Larson argues he received ineffective assistance of
counsel when he chose to withdraw from the plea agreement.
Some background on applicable sentencing law is needed to understand this claim.
Under the plea agreement, Mr. Larson pled guilty to the class 4 felony of internet sexual
exploitation of a child. That crime is defined as a “sex offense,” for which Colorado law
requires imposition of a “‘an indeterminate term’” in correctional custody. Larson II,
7 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 8
2023 WL 12061341, at *3 (quoting Colo. Rev. Stat. § 18-1.3-1004(1)(a)). The length of
the indeterminate term must be “at least the minimum of the presumptive range” set by
statute. The maximum length is “the [defendant’s] natural life.” Id.
As indicated in the plea agreement, Mr. Larson’s presumptive sentencing range—
which would establish the minimum length of his indeterminate prison term—would
have been two to six years. However, the prosecution gave notice it intended to present
evidence of extraordinary aggravating circumstances. If the sentencing court found
such circumstances, it could increase the minimum length of the sentence, up to twice
the high end of the presumptive range, or twelve years. See id. (citing Colo. Rev. Stat.
§ 18-1.3-401(6) and Vensor v. People, 151 P.3d 1274, 1279 (Colo. 2007)).
Mr. Larson’s ineffective assistance claim is predicated on Alleyne v. United States,
570 U.S. 99, 116 (2013), which held that under the Sixth Amendment “facts that increase
mandatory minimum sentences must be submitted to the jury.” Mr. Larson argues
Alleyne would have made it unconstitutional for the sentencing court to increase the
minimum length of the sentence contemplated in his plea agreement based on a judicial
fact-finding of aggravating circumstances. He therefore argues his plea counsel was
constitutionally ineffective because she did not advise him he could have maintained the
guilty plea but objected under Alleyne to any increase of the minimum length of his
sentence. If plea counsel had so advised him, he argues, he would not have withdrawn
from the plea agreement and would have received a sentence much shorter than was
imposed after he was convicted on all charges.
8 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 9
The CCA rejected this claim on post-conviction appeal, holding plea counsel was
not ineffective. See Larson II, 2023 WL 12061341, at *4. It observed the Colorado
Supreme Court had upheld the constitutionality of the procedure for increasing the
minimum length of an indeterminate sentence in Vensor. See id.; Vensor, 151 P.3d at
1280 (holding that because an indeterminate sentence “must include a maximum sentence
equal to . . . the offender’s natural life, the lower term . . . whether or not it is beyond the
presumptive range . . . cannot constitutionally entitle [a defendant] to a jury
determination” of aggravating circumstances). And the CCA observed “no court had
held that Vensor was no longer good law” at the time Mr. Larson withdrew his plea.
Larson II, 2023 WL 12061341, at *4. It therefore concluded that objecting to sentencing
based on Alleyne (and contrary to Vensor), would have been “a novel claim.” Id.
Applying a rule that “[i]n the Strickland context, attorneys are not required to anticipate
changes in otherwise dispositive authority in the controlling jurisdiction,” the CCA
concluded plea counsel had not been ineffective for “failing to advise [Mr. Larson] that
they could assert a novel legal argument if they proceeded to sentencing on his guilty
plea.” Id.
The district court concluded the CCA’s decision was not contrary to or an
unreasonable application of any controlling federal law. It found Alleyne “readily
distinguishable” because while Alleyne addressed a statutory mandatory minimum
sentence, Mr. Larson’s case involves “Colorado’s unique indeterminate sentencing
scheme for felony sex offenses” and “the applicable range of the lower term of years,”
for a sentence that would still “require[] an upper ceiling of [Mr. Larson’s] natural life.”
9 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 10
R. at 434. It therefore concluded that although “the rule that Mr. Larson argues for may
be a logical extension of Alleyne . . . . the law applicable to [his] claim was not clearly
established.” R. at 434–35.
Reasonable jurists would not debate the district court’s ruling. As it recognized,
Alleyne addressed application of a mandatory minimum sentence, 18 U.S.C.
§ 924(c)(1)(A)(ii), i.e., a provision that increased “the floor of a sentencing range.”
570 U.S. at 112. In contrast, the sentencing provision applicable to Mr. Larson provides
that a sentencing court “may impose a sentence . . . greater than the presumptive range,”
if it finds extraordinary aggravating circumstances. Colo. Rev. Stat. § 18-1.3-401(6)
(emphasis added); see also Lopez v. People, 113 P.3d 713, 719–20 (Colo. 2005) (stating
“[s]ection 18-1.3-401(6) does not mandate a restricted or increased sentencing range
based on judicial fact-finding,” but gives the sentencing judge “full discretion to sentence
within [a] widened range”). So reasonable jurists would not debate the district court’s
conclusion that Alleyne does not offer clearly established law for Mr. Larson’s habeas
claim. See Meek, 74 F.4th at 1251 (recognizing that under the “threshold” inquiry of
“whether there exists clearly established federal law,” the court must “construe [the
Supreme Court’s] holdings narrowly, and will not extract clearly established law from the
general legal principles developed in factually distinct contexts” (internal quotation
marks omitted)). 4
4 If Mr. Larson’s habeas claim were that he was sentenced in violation of Alleyne, then he might have a reasonably debatable argument that Alleyne’s facts are sufficiently “closely-related or similar” to provide clearly established law, and that the CCA “unreasonably refuse[d] to extend[] a legal principle from [Alleyne] to a new context 10 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 11
Instead, because Mr. Larson’s habeas claim is ineffective assistance of counsel,
the relevant clearly established law arises from Strickland v. Washington, 466 U.S. 668
(1984). This requires Mr. Larson to show his “‘counsel’s representation fell below an
objective standard of reasonableness,’” overcoming “a ‘strong presumption’ that [the]
representation was within the ‘wide range’ of reasonable professional assistance.”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at 688,
689). Our review of his claim under § 2254(d) is also “doubly deferential,” Dunn v.
Reeves, 594 U.S. 731, 738 (2021), giving “deference to both [Mr. Larson’s] counsel and
the state court,” id. at 739. “Because the Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a defendant has not satisfied
that standard.” Shinn v. Kayer, 592 U.S. 111, 119 (2020) (brackets and internal quotation
marks omitted). In the habeas context, the “question is not merely whether counsel
performed reasonably under Strickland; instead, it is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Martinez, 134 F.4th
at 1057 (brackets and internal quotation marks omitted).
Given this highly deferential review, reasonable jurists would not debate whether
the CCA’s decision unreasonably applied Strickland when concluding Mr. Larson’s
counsel performed reasonably by providing representation consistent with the then-
where it should apply.” House v. Hatch, 527 F.3d 1010, 1017, 1018 (10th Cir. 2008) (recognizing “‘extension of legal principle’” as one of “two analytic strands” of “the ‘unreasonable application’ prong of § 2254(d)(1)” (internal quotation marks omitted)). But his habeas claim is for ineffective assistance of counsel under Strickland, not for violation of Alleyne itself. 11 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 12
controlling holding of Vensor, and was not instead required to make an argument for
extending Alleyne, or advise Mr. Larson he could do so. Compare Larson II, 2023 WL
12061341, at *4 (stating “counsel’s performance is not deficient if [they] fail to advance
novel legal theories or arguments that have merit in hindsight but are not supported by
the then-existing precedent, fail to anticipate changes in the law, or fail to argue for an
extension of precedent”) with United States v. Babcock, 40 F.4th 1172, 1177 (10th Cir.
2022) (stating counsel “are not ineffective because they fail to conceive, research, and
raise every novel argument that has a chance to prevail”) and Scott v. Hepp, 62 F.4th 343,
348 (7th Cir. 2023) (“failure to object to an issue that is not settled law within [the
jurisdiction] is not unreasonable [representation] by defense counsel” (brackets and
internal quotation marks omitted)).
Mr. Larson maintains an argument based on Alleyne would not have been “novel,”
because Alleyne was decided three years before he withdrew his plea and had already
been cited many times during the intervening years. Aplt. Opening Br. at 16. But he
does not identify any case decided before he withdrew his plea agreement that indicated
Alleyne had either abrogated Vensor or applies to Mr. Larson’s sentencing. 5 So he has
not shown his counsel’s actions were objectively unreasonable, given the circumstances
present at the time of the representation. See Babcock, 40 F.4th at 1177.
5 Mr. Larson also has not cited any case decided more recently that has held Alleyne abrogated Vensor or makes the application of § 18-1.3-401(6) to increase the minimum length of an indeterminate sentence unconstitutional. 12 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 13
Mr. Larson’s other arguments also do not show a COA is warranted. To the extent
he claims the clearly-established law misapplied by the CCA was his general right to due
process, that undeveloped argument does not show the CCA debatably misapplied clearly
established law. See Harrington, 562 U.S. at 101 (“The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.”). He suggests
his counsel should have “moved to enforce the signed plea agreement” by claiming a
violation of Alleyne. Aplt. Opening Br. at 20. And he argues the trial court’s rulings
allowing him to withdraw his guilty plea and granting his request to replace plea counsel
based on having been “misadvised regarding the plea agreement” show her representation
was deficient. Id. at 21. But these arguments are still predicated on the claim that
effective representation required plea counsel to provide different representation based on
Alleyne. For the reasons discussed above, a COA is not warranted on that claim.
D. Denial of Request to Appoint Counsel
Mr. Larson also argues the district court “[f]ailed to respond” to a motion he filed
to reconsider the denial of his motion to appoint counsel. Id. at 25. He attached a copy
of a motion to reconsider to his opening brief and COA application. That motion, dated
January 24, 2025, does not appear to have been filed in the district court’s docket. See
R. at 4–5. We will construe his argument as appealing the district court’s decision not to
appoint counsel. He does not need a COA to appeal that ruling. See Harbison v. Bell,
556 U.S. 180, 194 (2009). But we review it only for an abuse of discretion. See Rachel
v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). The district court reasonably exercised its
13 Appellate Case: 25-1233 Document: 21-1 Date Filed: 03/30/2026 Page: 14
discretion, considering factors we have held relevant to the decision whether to appoint
counsel. 6 See id.
IV. Conclusion
We deny a COA. We grant Mr. Larson’s second motion to proceed without
prepayment of the filing fee (Dkt. No. 13) and deny his first motion (Dkt. No. 12) as
moot. We affirm the district court’s denial of Mr. Larson’s motion(s) to appoint counsel
and otherwise dismiss this matter.
Entered for the Court
Carolyn B. McHugh Circuit Judge
6 The district court’s January 10, 2025 order denying Mr. Larson’s motion to appoint counsel was not made part of the record on appeal but we take judicial notice of its contents. See United States v. Richardson, 136 F.4th 1261, 1269 n.7 (10th Cir. 2025). 14