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Parrino v. Archuleta

United States District Court, D. Colorado

April 6, 2015



LEWIS T. BABCOCK, Senior District Judge.

This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") filed pro se by Applicant Michael Salvatore Parrino. Respondents have filed an Answer to Application for Writ of Habeas Corpus (ECF No. 22) ("the Answer") and Mr. Parrino has filed Applicant's Reply to Respondents' Answer to Application for Writ of Habeas Corpus (ECF No. 23) ("the Traverse"). After reviewing the record, including the Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice. An appropriate order follows.


Mr. Parrino is challenging the validity of his conviction and sentence in Larimer County District Court case number 00CR996. The factual background of Mr. Parino's crimes and convictions was summarized by the Colorado Court of Appeals as follows.

A man wearing a hood over his head and brandishing a silver.45 caliber handgun robbed a 7-Eleven store. As the robber exited the store, he was confronted by two police officers, with whom he exchanged gunfire before he fled down a dark alley.
A police SWAT team conducted a door-to-door search of the area. The police came upon defendant lying underneath a blanket in a nearby apartment. Inasmuch as they mistakenly believed the robber was of a different race, however, they did not detain defendant. Subsequently, upon learning that the robber was a member of defendant's race, the police returned to the apartment. Although defendant was no longer there, the police found some clothing matching that worn by the robber, as well as a loaded.45 caliber handgun and the duffel bag in which the robber had placed the stolen money. Defendant's fingerprints were on the' gun and on an ammunition magazine found in the duffel bag.
Defendant lived with his brother. A police search of their residence uncovered numerous stolen guns, including an AK-47 assault rifle similar to one seen in the duffel bag prior to the robbery. The guns were found in the brother's bedroom. Police also found a "money plan, " written primarily by the brother and containing the details of an armed robbery he planned to commit. The brother denied that the money plan concerned the 7-Eleven robbery or that he was in any way involved in it. The brother admitted to possessing the stolen guns and agreed to testify against defendant in return for a deferred judgment and sentence on a class 4 felony charge of theft by receiving in relation to the guns.
At trial, the brother testified how, after picking defendant up in a car in the vicinity of the robbery in the midst of the police search, defendant had told him in detail about the robbery. Although defendant's theory of defense was that the brother committed the robbery, the jury found defendant guilty as charged.
As charged, aggravated robbery was a per se crime of violence. On special interrogatories, the jury also made a finding requiring crime of violence sentencing on the assault counts. Consequently, the trial court sentenced defendant to four consecutive twenty-two-year terms of imprisonment on the robbery and assault counts, pursuant to § 18-1.3-406, C.R.S. 2003 (formerly § 16-11-309). The court sentenced him to two terms of three years imprisonment on the menacing and trespassing counts, to run concurrently with the consecutive terms.

People v. Parrino, No. 02CA1676, slip op. at 1-3 (Colo.App. Sept. 16, 2004) (ECF No. 8-13 at 3-5) (Parrino I). On March 7, 2005, the Colorado Supreme Court denied Mr. Parrino's petition for writ of certiorari on direct appeal.

On June 6, 2005, Mr. Parrino filed in the trial court a postconviction motion pursuant to Colorado Crim. P. Rule 35(c) asserting ineffective assistance of counsel. On June 16, 2005, the trial court summarily denied the Rule 35(c) motion (ECF No. 8-10 at 2). On February 1, 2007, the Colorado Court of Appeals (CCA) affirmed in part, reversed in part, and remanded with directions ( See ECF No. 8-8) (Parrino II). The CCA concluded that a remand was warranted for the trial court to hold an evidentiary hearing on whether Mr. Parrino's trial counsel was ineffective and to make findings of fact and conclusions of law ( Id. at 4).

Mr. Parrino was appointed alternate defense counsel to represent him during the remand proceedings (ECF No. 8-8 at 8-9; ECF No. 8-4 at 4). Following an evidentiary hearing, the trial court issued a written order denying Mr. Parrino's motion for postconviction relief, finding that Mr. Parrino's ineffective assistance of counsel claim lacked merit (ECF No. 8-7). Mr. Parrino appealed and the CCA affirmed the trial court's denial of his Rule 35(c) motion on January 3, 2013 (ECF No. 8-4 (Parrino III). On August 5, 2013, the Colorado Supreme Court denied Mr. Parrino's petition for writ of certiorari in the state court postconviction proceedings (ECF No. 8-2 at 2).

On July 25, 2014, Mr. Parrino filed his federal habeas corpus Application asserting three claims for relief. In claim one, Mr. Parrino contends that he received ineffective assistance of trial counsel based upon a financial conflict of interest (ECF No. 1 at 5, 9-11). In claim two, he asserts that he received ineffective assistance of postconviction counsel because counsel "deliberately sabotag[ed] my State Evidentiary Hearing" ( Id. at 12-17). He explains that claim two is not an "official claim" but rather an "exception for a federal evidentiary hearing" in this Court ( Id. ). In claim two, Mr. Parrino also contends that the prosecution engaged in misconduct during the remand proceedings ( Id. ). In claim three, Mr. Parrino alleges he is innocent of one of the counts for assault on a peace officer because his conviction for two counts of assault on one peace officer was "duplicitous" ( Id. at 18). The Court previously entered an Order to Dismiss in Part (ECF No. 21) dismissing claim 3 as unexhausted and procedurally barred.


The Court must construe the Application and other papers filed by Mr. Mendoza liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Mr. Parrino bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) ( per curiam ).

A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562 U.S. 86, 98 (2011). In particular, "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Id. at 99. Thus, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.

The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Parrino seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018.

If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

A state-court decision is contrary to clearly established federal law if: (a) "the state court applies a rule that contradicts the governing law set forth in Supreme Court cases"; or (b) "the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent." Maynard [ v. Boone ], 468 F.3d [665, ] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405). "The word contrary' is commonly understood to mean diametrically different, ' opposite in character or nature, ' or mutually opposed.'" Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but ...

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