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Barajas v. Falk

United States District Court, D. Colorado

July 29, 2015



PHILIP A. BRIMMER, District Judge.

Applicant, Jesse Barajas, a state prisoner in the custody of the Colorado Department of Corrections, currently is incarcerated at the Limon Correctional Facility in Limon, Colorado. Applicant initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his conviction and sentence in the District Court for the City and County of Denver, Colorado, Case No. 03CR2922. He filed an Amended Application on July 18, 2014. Docket No. 8. Respondents filed an Answer on August 21, 2014, Docket No. 19, and the State Court records on August 25, 2014. Docket No. 20. Applicant filed a Reply to the Answer on September 25, 2014. Docket No. 23.

The Court must construe the Application liberally because Applicant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not "assume the role of advocate for the pro se litigant." See Hall, 935 F.2d at 1110. After reviewing the pertinent portions of the record in this case, including the Application, the Answer, the Reply, and the state court record, the Court concludes that the Application should be denied.


On July 8, 2003, the Denver District Attorneys Office charged Jesse Barajas in Case Number 03CR2922 with robbery. A count of third degree assault was added on July 22, 2003. Then, on July 11, 2003, Applicant was charged by Information in Case Number 03CR2921 with one count of theft over $500 from an at-risk adult. He was also charged in Case Number 03CR2923 with one count each of theft from the person and first degree aggravated motor vehicle theft. Six counts of habitual criminal were later added. These cases were subsequently consolidated for jury trial, which was held on August 16-19, 2004.

The prosecution's evidence in this case involved a woman who committed three purse snatchings. With respect to each incident, the prosecution proceeded against Mr. Barajas under a complicity theory, alleging that he drove the "get away car." In the first case, the prosecution presented evidence that a woman stole Kathryn Thompson's purse out of her grocery cart at an Albertson's grocery store on July 1, 2003. Ms. Thompson saw the woman get into a minivan and drive away. However, because the wind was blowing Ms. Thompson's hair in her face, she was unable to get a good look at the woman. Mr. Barajas was acquitted of this conduct.

In the second case, the prosecution presented evidence that a woman took Charlotte Gray's purse out of her shopping cart on July 2, 2003. Ms. Gray saw the woman running away with her purse and watched as she jumped into a van driven by a Hispanic man. Ms. Gray was shown a photographic lineup, but was not able to make any identification. With respect to the third purse snatching case, the State presented testimony from Dorothy Cramer that she was in a Wal-Mart parking lot on the afternoon of July 2, 2003 pushing her shopping cart to her car. According to Ms. Cramer, she set her purse down in her cart and began looking for her car keys when she felt someone tugging at her purse. Ms. Cramer saw a woman next to her pulling on her purse, who she described as "one tough broad." The purse strap eventually broke, at which point the woman took the purse and ran around the back of a van. The woman threw Ms. Cramer's purse into the driver's window. Ms. Cramer reached into the van and tried to grab the purse. The driver then opened the door, which had the effect of slamming it into Ms. Cramer. Ms. Cramer identified Mr. Barajas as the driver of the van.

Around 3:00 p.m. on July 3, 2003, Lakewood police officer Daniel Garcia located a van which matched the description of one that had been involved in the purse thefts. Garcia observed two men and a woman in the vehicle and attempted to stop it, but the van got away. Garcia identified Mr. Barajas as the driver of the van. The van was later located and the area was searched for parties matching the descriptions of the three occupants of the van Garcia had seen. Ultimately, police detained three individuals, one of whom was Mr. Barajas. The woman detained by the police was carrying two purses; other items associated with the thefts were found under a boat near where the arrests were made. The woman who committed the thefts was identified as Elizabeth Fresquez.

At trial, Ms. Fresquez explained that she had asked Mr. Barajas to drive her to various stores because she had been using drugs and was unable to drive herself. She stated that it was her idea to steal the purses and that she had not talked to Mr. Barajas about it before she did it.

On August 19, 2004, the jury found Mr. Barajas not guilty of theft from the person and first degree aggravated motor vehicle theft, but returned guilty verdicts on the charges of theft from an at-risk adult, robbery, and third degree assault involving Charlotte Gray and Dorothy Cramer. On July 13, 2005, the judge found Mr. Barajas to be a habitual criminal and sentenced him to consecutive terms of 24 years on the felony counts and to a concurrent term of two years jail on the misdemeanor conviction. The court ordered the sentences to run consecutively to the sentences imposed in 05CR1854 for a cumulative sentence of 224 years.[1]

Applicant filed a direct appeal to the Colorado Court of Appeals ("CCA") raising the following claims: 1) insufficient evidence of theft from a person; 2) insufficient evidence of robbery; 3) erroneous jury instruction on complicity; 4) insufficient evidence of habitual criminal; and 5) disproportionate sentence. Docket No. 11-2. The CCA affirmed his conviction in People v. Barajas, Colo.App. No. 05CA1853 (August 21, 2008) (unpublished) (" Barajas I" ). Docket No. 11-4. He filed a petition for certiorari in the Colorado Supreme Court ("CSC") (Docket No. 11-5), which was denied on January 5, 2009. Docket No. 11-6.

Subsequently, Mr. Barajas filed a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, alleging that his trial counsel was ineffective by failing to object to the complicity instruction and by failing to object to trying the habitual criminal charges to the court instead of a jury. After the district court denied the motion, Applicant appealed and, on February 14, 2013, the CCA affirmed the lower court. People v. Barajas, Colo.App. No. 10CA1776 (Feb. 14, 2013) (unpublished) (" Barajas II" ). Docket No. 11-10. Applicant's petition for certiorari was denied by the CSC on September 16, 2013. Docket No. 11-12.

Applicant filed the instant action on July 1, 2014, wherein he raised the following claims:

1. Whether the evidence was insufficient to convict him of robbery and to adjudicate him as an habitual criminal.
2. Whether the state trial court violated Barajas' Fourteenth Amendment due process rights when it gave the jury an instruction regarding complicity that erroneously instructed the jury to convict Barajas if it believed he committed "all or part of" the offense.
3. Whether trial counsel's failure to object to the erroneous complicity instruction constituted ineffective assistance.
4. Whether trial counsel's failure to request a jury trial on the habitual counts as required by United States Supreme Court precedent constituted ineffective assistance.

On August 21, 2014, Respondents filed an Answer on the merits. Docket No. 19. Applicant filed a Reply on September 25, 2014. Docket No. 23. The Application is ripe for review by this Court.


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

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. Barajas 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 unreasonably applies it to the facts. Id. at 407-08.

House, 527 F.3d at 1018.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. Furthermore,

[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.

Richter, 562 U.S. at 101 (internal quotation marks omitted). In conducting this analysis, the Court "must determine what arguments or theories supported or... could have supported[] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. In addition, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 562 U.S. at 102 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").

... As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 562 U.S. at 103.

This deference was explained in Renico v. Lett, 599 U.S. 766 (2010), where the Supreme Court reviewed the Court of Appeals for the Sixth Circuit's grant of a writ of habeas corpus to a defendant who was retried for murder following the trial judge's grant of a mistrial after the jury had deliberated for at least four hours following a relatively short, and far from complex, trial. The Michigan Supreme Court had concluded there was no violation of the Double Jeopardy Clause because the trial court exercised its sound discretion. The federal district court granted a writ of habeas corpus and the Sixth Circuit affirmed, both concluding that the trial court's declaration of a mistrial constituted an abuse of discretion because there was no manifest necessity. The Supreme Court reversed.

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so-the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of ...

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