United States District Court, D. Colorado
ANTONIO N. MANZANARES, Applicant,
STATE OF COLORADO, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. No.
ORDER FOR ANSWER IN PART, DISMISSAL IN PART, AND STATE COURT RECORD
PHILIP A. BRIMMER United States District Judge
Applicant currently is in the custody of the Colorado Department of Corrections and is incarcerated at the Arkansas Valley Facility in Ordway, Colorado. Applicant, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254, Docket No.1, challenging his conviction and sentence in Criminal Case No. 08CR1866 from the District Court of Weld County, Colorado. On August 11, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C.
§ 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those affirmative defenses in this action.
Respondents filed their Pre-Answer Response, Docket No. 8, on August 24, 2015. Applicant failed to submit a Reply within the time allowed.
Applicant raises seven claims. The claims are as follows:
(1) The trial court erroneously granted the prosecutor's challenge for cause and effectively provided the prosecution an additional peremptory challenge in violation of Applicant's constitutional right to due process, a fair trial, and an impartial jury;
(2) The trial court allowed Apen packs" to be admitted as evidence to prove aggravating prior convictions, which violated Applicant's right to confrontation;
3) The trial court committed reversible and structural error when it denied Applicant a jury trial regarding the habitual criminal counts and “second offense” counts in violation of the Sixth and Fourteenth Amendments;
4) The ninety-six year sentence constitutes cruel and unusual punishment and is grossly disproportionate because none of Applicant's previous convictions are grave and serious;
5) The trial court held a preliminary hearing six months after Applicant was arrested in violation of his right to due process;
6) The trial court allowed a video that had a wrong date and time on it to be admitted as evidence in violation of Applicant's right to confrontation; and
7) The trial court violated Applicant's constitutional rights when it did not dismiss the public defender based on ineffective assistance of counsel.
Docket No. 1 at 5-6 and 10.
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 should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Respondents concede the action is timely and Claims Four and Five are exhausted. Respondents, however, contend that (1) Claims One and Three are not cognizable in a federal habeas action; (2) Claim Two is unexhausted; and (3) Claims Six and Seven are procedurally defaulted and, therefore, these claims are barred from federal habeas review.
A. Noncognizable Claims
1. Claim One
In this claim, Applicant asserts that his rights to a fair trial, due process, and an impartial jury were violated when the trial court granted the prosecution's challenge for cause and, in doing so, allowed the prosecution an additional peremptory challenge to the prosecution. Docket No. 1 at 5.
Respondents argue that Applicant does not allege, and never has alleged in any state court proceeding, that a biased juror sat on the jury in his criminal trial. Docket No. 8, at 6. Respondents assert Applicant's claim in state court was that
"[e]rroneously granting a challenge for cause [had] the effect of granting one
side an additional peremptory challenge." Id. (citing Docket No. 8-4, Ex. D, at 12).
The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant the right to an impartial jury. See Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Irvin v. Dowd, 366 U.S. 717, 722 (1961). If a
"juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,
" the juror should be dismissed for cause. Wainwright v. Witt, 469 U.S. 412, 424 (1985) (internal quotation marks omitted), see also United States v. Scull, 321 F.3d 1270, 1278 (10th Cir. 2003). However, in deciding whether the jury was impartial, the Court focuses on the jurors who ultimately deliberated and decided Applicant's fate. See Ross, 487 U.S. at 86.
"[T]here is no freestanding
constitutional right to peremptory challenges." Rivera v. Illinois, 556 U.S. 148, 157 (2009) (citing Martinez-Salazar, 528 U.S. 304, 311 (2000)). The U.S. Supreme Court has characterized peremptory challenges as
"a creature of statute, " Ross, 487 U.S. at 89, and has made clear that a state may decline to offer them at all. Georgia v. McCollum, 505 U.S. 42, 57 (1992). A peremptory challenge is a benefit
"beyond the minimum requirements of fair [jury]selection." Frazier v. United States, 335 U.S. 497, 506 (1948). The states, therefore, retain discretion to
"determine the number of peremptory challenges allowed and to define their
purpose and the manner of their exercise." Ross, 487 U.S., at 89.
Applicant does not challenge the partiality of the jurors who ultimately deliberated and decided his case. His claim clearly challenges the trial court's manner in which it exercised its discretion to determine the number of peremptory challenges allowed to each party. Claim One therefore does not state a violation of Applicant's federal constitutional rights and will be dismissed as noncognizable in a federal habeas action.
2. Claim Three
In Claim Three, Applicant asserts that he was denied a jury trial on the habitual criminal counts and “second offense” counts in violation of his Sixth and ...