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Al-Chalati v. Raemisch

United States District Court, D. Colorado

June 2, 2015

MUHAMMED NAZIR AL-CHALATI, Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, JAMES FALK, Warden, Sterling Corr. Facility, and JOHN SUTHERS, Attorney General of the State of Colorado, Respondents.

OPINION AND ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

JOHN L. KANE, District Judge.

On November 1, 2006, Applicant Muhammed Nazir Al-Chalati ("Applicant" or "Defendant") was convicted of two counts of solicitation to commit first degree murder in Adams County District Court, and sentenced to two concurrent twenty year sentences. Doc. 1 at ¶ 1. After exhausting the state court appeals process, see Doc. 1 at ¶¶ 2-3, Defendant filed an application for a writ of habeas corpus on May 19, 2014, alleging that his confrontation clause rights were violated and that he received ineffective assistance of counsel at his trial. For the reasons that follow, Defendant's application is DENIED.

Background

In its unpublished opinion on Defendant's direct appeal, see Doc. 1-2, the Colorado Court of Appeals ("CCA") recited the following background facts:

Defendant and his girlfriend (the victim) had a sometimes violent romantic relationship on and off beginning in 2003. As pertinent here, there were three incidents that resulted in defendant being charged with criminal offenses related to the victim.
In the first incident, which occurred on December 20, 2003, the victim told defendant she no longer wanted to be in a relationship with him. Later that day, defendant used a key to enter the victim's home, without her permission, and demanded she return jewelry he had given her. After refusing, the victim attempted to call 911, but defendant took the telephone from her, removed the batteries, and also took her cell phone. The victim repeatedly asked defendant to leave; he refused. She then attempted to leave the apartment, but defendant would not let her. Defendant also threw the victim against the wall and choked her. The victim was eventually able to leave the apartment. This incident resulted in multiple criminal charges against defendant.
In the second incident, which occurred on July 2, 2004, the victim was at a bar and defendant, who was just outside the bar, repeatedly called her cell phone. He also looked over the fence surrounding the patio of the bar and said he was not going to leave until the victim spoke with him. These actions violated a protection order. Defendant was charged with multiple criminal charges arising out of this incident.
In the third incident, which occurred on September 24, 2004, the victim received several phone calls from defendant, who requested her presence at court the following day. He threatened to break down her door and harm her and her dogs if she did not show. The victim called the police, and, while she was on the phone with them, defendant arrived at her house and yelled at her. This incident resulted in defendant being charged with multiple criminal charges.
In addition, defendant, in the presence of others, threatened to kill the victim.
In August 2005, defendant was detained at an Immigration and Customs Enforcement (ICE) facility pending deportation. Defendant's cellmate, who was an ICE informant, told an ICE agent that defendant had asked if he knew where to buy a gun with a silencer and stated that he wanted to kill the victim. The cellmate was instructed by the ICE agent to play along and tell defendant that he knew someone who would kill the victim. An undercover police officer, acting as a killer for hire, spoke with defendant while he was being held at the ICE facility, attempting to set up the murder. Defendant met with the undercover officer, and, during a recorded conversation, he showed the officer a picture of the victim. They spoke once more by telephone before defendant was arrested on October 13, 2005 for solicitation of murder, removed from the ICE facility, and taken to a county jail.
At the county jail, defendant attempted to hire his new cellmate to kill the victim. This cellmate also reported the matter to the guards. Defendant told the cellmate where the victim lived and worked, what kind of car she drove, and when she would be working alone. Defendant was charged with a second solicitation for first degree murder.

Procedural History

On November 1, 2006, Defendant was convicted by a jury in Adams County District Court of two counts of solicitation to commit first-degree murder, and was sentenced to two concurrent twenty year sentences. Doc. 1 at ¶ 1. Defendant appealed his conviction and his sentence, and the Colorado Court of Appeals affirmed both in an unpublished decision on June 25, 2009. Doc. 1 at ¶ 2. The Colorado Supreme Court denied certiorari on November 16, 2009. Id.; Doc. 1-4.

On March 11, 2010, Defendant filed a motion for reconsideration of his sentence under Colorado Rule of Criminal Procedure 35(b), and that motion was denied on March 17, 2010. See Docs. 1-5; 1-6. On February 22, 2011, Defendant filed a motion for a new trial under Colorado Rule of Criminal Procedure 35(c), arguing that his trial counsel had been ineffective, and that motion was denied on September 2, 2011. Doc. 1-8. The CCA affirmed the denial of Defendant's Rule 35(c) motion on February 28, 2013, and the Colorado Supreme Court denied Defendant's petition for a writ of certiorari on May 19, 2014. Doc 1-10; 1-12. Also on May ...


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