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Ortega v. Leiba

January 18, 2007

DELFINO ORTEGA, APPLICANT,
v.
RON LEIBA, WARDEN, A.V.C.F., AND THE ATTORNEY GENERAL OF THE STATE OF COLORADO, RESPONDENTS.



The opinion of the court was delivered by: Judge Edward W. Nottingham

ORDER AND MEMORANDUM OF DECISION

Petitioner Delfino Ortega seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2006). Petitioner, a state prisoner currently facing a life sentence, was convicted in state court of two counts of first degree murder, one of which was reversed on appeal. He now challenges the constitutionality of the trial court's: (1) admission of polygraph evidence; (2) determination that the improper admission of hearsay testimony was harmless with regard to one of his convictions; (3) denial of his motion to sever; and (4) jury instruction concerning the prosecution's burden of proof. This matter is before the court on Petitioner's "Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254," filed October 3, 2005. Jurisdiction is premised upon 28 U.S.C. § 2254 (2006).

FACTS

1. Factual Background

a. Overview

Under 28 U.S.C. § 2554(e), when a federal district court addresses "an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1) (2006). The following synopsis is taken from the Colorado Court of Appeal's ("CCOA") opinion summarizing the prosecution's evidence. (Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Ex. 1, Part 1 at 62 [People v. Ortega, 01CA1925 (Colo. Ct. App. May 29, 2003) (unpublished) (hereinafter "CCOA Decision")] [filed Oct. 3, 2005] [hereinafter "Pet'r's App."].) Petitioner, a barber, was approached by his customer, Tom Phillips ("Phillips"), about whether Petitioner knew anyone who could set up a robbery and kill Phillips' wife, Ann Phillips. (Id.) Petitioner agreed to do the job for $10,000. (Id.) After having several conversations with Phillips, Plaintiff carried out the killing and the staged robbery. (Id.) More than a year later, Phillips was asked several times by his friend, Joe Bonicelli ("Bonicelli"), whether he knew anyone who could get rid of his wife, Eloise Bonicelli. (Id.) After speaking with Petitioner, Phillips told Bonicelli that Petitioner would "take care of the situation for $10,000." (Id.) Phillips then put Bonicelli and Petitioner in contact with each other. (Id.) A few months later, Wilfred Marquez, whom Petitioner engaged through one of his co-workers at the barbershop, entered the Bonicelli home, fatally shot Eloise Bonicelli, and wounded her nephew, John Gambrell. (Id.)

b. Evidence

Plaintiff was tried and convicted for both murders. This court's independent review of the trial record shows the evidence directly supporting Plaintiff's conviction for the Phillips murder was centered upon the testimony of Phillips, who accepted an offer of immunity conditioned upon him telling the truth. (State Record of People v. Ortega, 00CR3433 [Colo. Dist. Ct. 2001] at v. 12, pp. 1472--43, 1517--18 [hereinafter "State R."].) Phillips testified that he had entered into an agreement to pay Petitioner $10,000 to murder Ann Phillips on the night of March 25, 1974. (Id.) The plan, according to Phillips, was that a car would follow him as he drove home with his wife from their jointly owned bar; the car would then signal Phillips to pull over by means of a blinking red light, and, in the course of a robbery, Ann Phillips would be shot fatally and Phillips would be shot non-fatally. (Id. at v. 12, pp. 1472--76.) On March 25, 1974, after leaving their bar, Ann Phillips was in fact fatally shot after she and her husband were pulled over by a car with a red flashing light; Phillips was knocked unconscious by a blow to the head. (Id. at v. 11, pp. 1187, 1303; v. 12, pp. 1485, 1492--93, 1557.) Phillips testified that after he received insurance money for his wife's death, he paid Petitioner $10,000 in cash for the murder. (Id. at v. 12, pp. 1496--97, 1542.) Petitioner's fingerprints were found on the passenger's side door of the Phillips' vehicle. (Id. at v. 12, pp. 1617--18, 1635, 1644.)

The following evidence directly supported Petitioner's conviction for the Bonicelli murder. Phillips testified that in the early 1970's, his friend, Bonicelli, asked if Phillips knew anyone who would kill his wife for him. (Id. at v. 12, pp. 1502--03.) Phillips, in turn, asked Petitioner if he knew someone who would commit the murder. (Id.) According to Phillips, Petitioner eventually said that he would take care of the situation for around $10,000, at which point Phillips put Petitioner and Bonicelli in contact. (Id. at v. 12, pp. 1506--08.) On November 23, 1975, a man came to the door of the Bonicelli home and said that he wanted to rent an apartment. (Id. at v. 13, pp.1745--46.) The man shot Gambrell, Eloise Bonicelli's nephew, in the chest; Gambrell was able to run to the basement and call the police. (Id. at v. 13, pp. 1175--76, 1896.) Eloise Bonicelli was shot in the chest and died. (Id. at v. 11, p. 1202.) Mr. Gambrell later identified the shooter as looking like Freddie Fender, a country western singer. (Id. at v. 13, p 1756.) Initially, he chose Petitioner's photo as "a good look-alike," but later identified Marquez as the shooter. (Id. at v. 13, pp. 1756--60.)

According to the testimony of Richard Butierres, Bennie Valdez's step-son, Valdez worked at Petitioner's barber shop in the 1970's, and Marquez was a friend of Valdez. (Id. at v. 15, pp. 2259, 2261, 2379--80.) Further, while in prison, Butierres learned from Marquez that he and Valdez took the contract for the Bonicelli murder from Petitioner, and that Petitioner never paid Marquez for the hit. (Id. at v. 15, pp. 2261--64.) At Petitioner's trial, Marquez's ex-girlfriend testified that soon after the Bonicelli murder, Marquez called her and told her he had just finished doing a job for $10,000 and, before leaving town, wanted to stop by and give her and their child some money. (Id. at v. 13, pp. 1841--42.) Another prosecution witness, Jerry Romero, was an acquaintance of Marquez and testified that when he asked Marquez whether he had killed Bonicelli, Marquez laughed and said he had. (Id. at v. 14, p. 2055.) When the prosecution asked Romero whether he remembered telling a detective that Petitioner hired Marquez through Valdez to kill Bonicelli, Romero testified he did not recall making those statements, but that he had spoken with a detective and did not think the detective would lie about what he had told him at the time. (Id. at v. 14, pp. 2060--63.) Later in the trial, the detective testified that Romero said Marquez stated: (1) Petitioner hired Marquez to murder Bonicelli; (2) Petitioner owed Marquez money for the job; and (3) when Marquez went to Petitioner for the money, Petitioner refused to pay "[b]ecause detectives had too much heat on and the guys that owed the money weren't paying it." (Id. at v. 14, pp. 215--59.)

After release from prison, Butierres engaged in a taped conversation with Petitioner. (Id. at v. 15, pp. 2278--79; Exhibit 147; Bench Exhibit V.) Petitioner said his only role, if any, in the Bonicelli and Phillips murders was "put[ting] people together." (Id., Exhibit 147; Bench Exhibit V at 54.) Specifically, Petitioner stated:

I didn't, I didn't have nothin' to do with all that stuff. I just put people together. And [Bonicelli] knows 'em from the shop, too, you know? That's all I tried to do. See, a lot of times I didn't even want to know. I put people together and let them take care of their own fucking business. I didn't want to get involved. A lot of that stuff I didn't want to get involved in. [']Cause [Bonicelli] met 'em in the shop. A lot of people met in the shop. (Id., Exhibit 147; Bench Exhibit V at 54.)

2. Procedural History

Petitioner was convicted by jury in the District Court of El Paso County, State of Colorado, on two counts of First Degree Murder for the death of Ann Phillips and Eloise Bonicelli. (Id., at v. 18, p. 11.) The trial court imposed consecutive life sentences of imprisonment for those two counts. (Id. at v. 20, pp. 18--20.) Petitioner directly appealed his judgment of conviction to the CCOA, arguing the trial court erred in: (1) admitting certain hearsay statements under the co-conspirator exception; (2) denying his motion to sever the two murder counts; (3) denying his motion for a mistrial after the admittance of prejudicial polygraph evidence; (4) failing to properly instruct the jury concerning the burden of proof; and (5) allowing Phillips to testify under the guise of total immunity without proper establishment under the statutory guidelines. (Pet'r's App., Ex. 1, Part 2 at 9 [Pet'r's CCOA Br.].) The CCOA reversed Petitioner's conviction for the Bonicelli murder, because it had been based, in part, on inadmissible hearsay evidence. (Id., Ex. 1, Part 1 at 67--69 [CCOA Decision].) The court affirmed Petitioner's conviction for the Phillips murder, concluding that admission of improper hearsay evidence was harmless as to that count. (Id., Ex. 1, Part 1 at 69--70 [CCOA Decision].)

Petitioner initiated post-conviction proceedings in the Colorado Supreme Court, arguing the same claims as before the CCOA, but omitting the immunity claim. (Id., Ex. 1, Part 1 at 5--18, 38--49 [Pet'r's Colo. Sup. Ct. and U.S. Sup. Ct. Pets. for Cert.].) The Colorado Supreme Court denied certiorari on February 9, 2004, and the United States Supreme Court denied certiorari on October 4, 2004. (Id., Ex. 1, Part 1 at 1--3, 20--21 [Colo. Sup. Ct. and U.S. Sup. Ct. Cert. Denials].) On October 3, 2005, Petitioner filed an application for a writ of habeas corpus with this court, arguing the same claims as before the Colorado Supreme Court. (Pet'r's App.) On November 23, 2005, Respondents filed an answer. (Answer to Application for Writ of Habeas Corpus [filed Nov. 23, 2005] [hereinafter "Answer"].) On December 19, 2005, Petitioner filed a reply in support of his Application. (Pet'r's Reply [filed Dec. 19, 2005] [hereinafter "Pet'r's Reply"].)

ANALYSIS

1. Preliminary Matter: Exhaustion

"A threshold question that must be addressed in every habeas case is that of exhaustion." Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). Federal habeas corpus relief is not available to a state prisoner unless all state court remedies have been exhausted prior to the filing of the petition. 28 U.S.C. § 2254(b) (2006); Harris, 15 F.3d at 1554. "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 526 U.S. 838, 843 (1999).

In this case, Respondents contend Petitioner failed to exhaust his claims that his Fifth and Fourteenth Amendment rights under the United States Constitution were violated by that the trial court's failure to grant his motion for: (1) mistrial after admission of the improper polygraph evidence; and (2) severance of the two murder counts. (Answer at 10--13.) Specifically, Respondents argue Petitioner "did nothing to alert the state appellate courts that he wished them to address serious claims that [these] trial occurrences violated his constitutional rights." (Id. at 12--13.) Petitioner counters that his constitutional claims were sufficiently set forth upon direct appeal. (Pet'r's Reply at 1--2.)

As Respondents point out, to exhaust a claim for habeas corpus review, "'the proponent must have presented the federal claim to the state courts unveiled.'" (Answer at 11--12 [quoting Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir. 1989)].) A petitioner must make his assertion of a federal claim plainly apparent by, for instance, utilizing "specific constitutional language, constitutional citation, appropriate federal precedent, substantive constitutional analogy, argument with no masking state-law character, and the like- such as would in all likelihood alert a reasonable jurist to the existence of a federal question." Id. Moreover, "it is . . . well settled . . . that casual mention of an issue in a brief is cursory treatment insufficient to preserve this issue on appeal." Kopst v. Kozakiwicz, 1 F.3d 176, 182 (3d Cir. 1992).

In the instant case, Petitioner clearly stated in his first appellate submission and every submission thereafter that his claims regarding the polygraph evidence and severance were, in part, constitutional in character. In ...


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