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Aguilar v. Zupan

United States District Court, D. Colorado

February 25, 2016



RAYMOND P. MOORE United States 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 Antonio Aguilar, on September 8, 2015. He has been granted leave to proceed in forma pauperis. (ECF No. 5). Respondents submitted a Pre-Answer (ECF No. 12) and an Answer (ECF No. 18). Applicant failed to file a Reply despite being given an opportunity to do so. After reviewing the record, including the Application, the Pre-Answer, the Answer, and the state court record, the Court finds and concludes that the Application should be denied and the case dismissed with prejudice.


On February 1, 2005, Applicant was convicted by a jury of first degree burglary, second degree burglary, theft, robbery and conspiracy to commit robbery in Jefferson County District Court Case No. 03CR2633. (ECF No. 1 & 12-7). The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. (ECF No. 12-7). Prior to the scheduled retrial, defendant pled guilty to second degree murder in exchange for dismissal of the felony murder charge. Id. On April 15, 2005, the trial court sentenced defendant to a total of fifty-seven years in prison. (Id.)

On direct appeal, Applicant challenged his lesser convictions and related sentence. On August 21, 2008, the Colorado Court of Appeals merged applicant’s first and second degree burglary convictions and affirmed the judgment in all other respects. (ECF No. 12-3). The Colorado Supreme Court denied certiorari on December 22, 2008. (ECF No. 12-5).

On January 8, 2010, applicant filed a pro se Crim. P. 35(c) motion alleging nine claims of ineffective assistance of counsel. (ECF No. 12 at 2 n.1). The district court issued a written order denying the claims without holding a hearing. The Colorado Court of Appeals affirmed the postconviction court’s order. (ECF No. 12-7). The Colorado Supreme Court denied certiorari on December 9, 2013. (ECF No. 12-9).

On December 16, 2013, applicant filed a motion to correct illegal sentence with the state district court. (ECF No. 12-1). He resubmitted the motion, with counsel, on February 3, 2014. (Id.) The motion was denied by the district court in a written order on February 7, 2014. (Id.) The Court of Appeals affirmed the denial, (ECF No. 12-12), and the Colorado Supreme Court denied certiorari on June 1, 2015, (ECF No. 12-14).

On July 8, 2015, applicant filed a “Petition for Post Conviction Relief” and “Direct Appeal 35c” with the state district court. (ECF No. 12-1 at 10). The motions were denied and the appeal is currently pending. (See ECF No. 12-1 at 9-10, ECF No. 12-15, ECF No. 12-16).

On April 1, 2013, Applicant initiated a habeas action pursuant to 28 U.S.C. § 2254 in this court. See Aguilar v. Tamme, 13-cv-00494-MSK. In that case, Chief Justice Marcia S. Krieger initially dismissed the application in part. (Id. at ECF No. 25). Subsequently, the entire case was deemed voluntarily dismissed. (Id. at ECF No. 35).

On September 8, 2015, Applicant filed the instant habeas motion pursuant to 28 U.S.C. § 2254, asserting the following nine claims for relief:

1. Double Jeopardy (jurisdiction) violation because the trial court allowed the felony murder charge to be retried following Mr. Aguilar’s burglary conviction at the first trial.
2. Due Process Violation because the prosecution’s testing of DNA evidence consumed the sample.
3. Due Process Violation because the trial court allowed an expert witness to testify about population frequency statistics.
4. Due Process Violation because the evidence was insufficient to support the convictions for robbery and theft.
5. Due Process Violation because the state was required to prove that applicant had the intent to commit theft, which was an essential element of the crime of burglary.
6. Due Process Violation because the prosecution was allowed to amend the burglary charge after the close of evidence.
7. Due Process Violation because of prosecutorial misconduct during closing argument.
8. Due Process Violation because the trial court failed to instruct the jury on the lesser included offense of criminal 9. Due Process Violation because there was no factual basis for the court to accept applicant’s guilty plea to second degree murder.

(ECF No. 1 at 5-6.)

In the Pre-Answer Response, Respondents conceded that the Application was timely under 28 U.S.C. § 2244(d). (ECF No. 12 at 6). On November 20, 2015, the Court dismissed claims one, two, three and eight of the Application as procedurally barred. (ECF No. 15). Accordingly, the Court addresses the merits of claims four, five, six, seven, and nine of the Application below.



Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

B. 28 U.S.C. § 2254

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). The applicant 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 the applicant 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. Additionally, we have recognized that an unreasonable application may occur if the state court either unreasonably extends, or unreasonably refuses to extend, a legal principle from Supreme Court precedent to a new context where it should apply.

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. In addition,

evaluating 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, 131 S.Ct. at 786 (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. Moreover, "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, 131 S.Ct. at 786 (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 ...

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