United States District Court, D. Colorado
DELMART E. J. M. VREELAND, III,
DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS
A. BRIMMER United States District Judge
Delmar E. J. M, Vreeland, III, filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 that challenges the validity of his criminal
conviction in Case No. 04CR706 in the District Court for
Douglas County, Colorado. Applicant originally filed the
Application on August 6, 2014, but then, pursuant to the
August 11, 2014 Order to Amend, he filed an Amended
Application, Docket No. 8, on September 29, 2014. The
September 29 Amended Application, which asserts thirty-two
claims, of which one has five subparts, is the operative
pleading in this action.
September 29, 2014, Magistrate Judge Gordon P. Gallagher
directed Respondents to file a Pre-Answer Response and to
address the affirmative defenses of timeliness under 28
U.S.C. § 2254(d), and exhaustion of state court remedies
under 28 U.S.C. 2254(b)(1)(A), if Respondents intended to
raise either or both in this action.
granting both parties extensions of time, Respondents filed a
Pre-Answer Response and Applicant filed a Reply. Magistrate
Judge Gallagher reviewed the Response and Reply and directed
Applicant to show cause why the action should not be
dismissed as a mixed petition. On March 4, 2015, counsel
entered an appearance on Applicant's behalf and requested
a ninety-day extension of time to respond to the Order to
Show Cause. Magistrate Judge Gallagher granted the request
for an extension of time, but allowed Applicant only sixty
days to respond. Applicant filed a Response, Docket No. 32,
on May 1, 2015, and Respondents filed a Reply, Docket No. 34,
on May 19, 2015.
Court, upon review of the Response to the Order to Show Cause
and Applicant's Reply, filed an Order to Dismiss in Part
and for Answer on December 21, 2015. See Docket No.
46. In the December 21 Order, the Court determined that
Claims Six through Nine, Eleven through Twenty-Six, subpart
(a) of Twenty-Seven, Twenty-Nine, and Thirty are procedurally
barred from federal habeas review. Docket No. 46 at 19. The
Court further determined that Claims Four, Thirty-One, and
Thirty-Two are not cognizable in a federal habeas action, and
subparts (b)-(e) of Claim Twenty-Seven and Claim Twenty-Eight
are unexhausted. Id.
remaining claims are as follows:
1) Trial court forced Applicant to jury trial without counsel
and notification in violation of Sixth Amendment;
2) Trial court forced Applicant to trial without counsel even
though Applicant was incompetent violating due process
3) Trial court denied a competency hearing violating due
5) Jury instructions did not include the date and location of
the crime violating due process rights; and
10) Trial court failed to limit the use of certain evidence
under “CRE 404(B) and C.R.S. § 16-10-301” by
the jury regarding the age of state witnesses, [J.O. and
L.A.], and when they first met Applicant in
violation of the Sixth and Fourteenth Amendments.
Docket No. 8 at 14-16, 20.
then were directed to file an answer that fully addresses the
merits of Claims One through Three, Five, and Ten.
Id. at 20. Respondents requested an extension of
time to file an answer, which was granted. Prior to
Respondents filing an answer, Applicant filed a Motion to
Amend or Reconsider Ruling. See Docket No. 53. In
the Motion to Amend or Reconsider, Applicant requests that
the Court alter, amend, or reconsider the December 21 ruling
and allow Applicant to litigate his actual innocence claim
“in conjunction with his claims that he was forced to
trial without counsel, and while incompetent, in violation of
his Sixth Amendment rights” in this action.
See Docket No. 53 at 7-8. Respondents filed a
Response to Motion to Reconsider, Docket No. 55, on January
25, 2016, and Applicant filed a Reply to State's Response
to Motion to Amend or Reconsider, Docket No. 59, on February
Respondents filed an Answer on February 16, 2016, addressing
the merits of Claims One through Three, Five, and Ten. Docket
No. 60. Applicant filed a Reply to the Answer, Docket No. 65,
on March 31, 2016, and an Amended Reply, Docket No. 68, on
April 21, 2016. The case was stayed from March 16, 2016 until
May 2, 2016 because Applicant appealed this Court's
denial of his request for bail and the state court records
were not available to this Court until the Tenth Circuit
returned the records following the disposition of
Applicant's appeal. The Court, on September 9, 2016,
denied the Motion to Amend or Reconsider Ruling.
factual background of Applicant's crimes and convictions
is summarized in the opinion of the Colorado Court of Appeals
(CCA), addressing his direct appeal as follows:
Defendant, Delmart Michael Edward Vreeland, appeals the
judgment of conviction entered upon jury verdicts finding him
guilty of inducement of child prostitution, solicitation of
child prostitution, sexual exploitation of children, sexual
assault, contributing to the delinquency of a minor, and
distribution of a controlled substance.
Defendant promised to pay two teenage boys if they allowed
him to photograph them in their underwear and post the
photographs on a pornographic website. After providing the
teenagers with alcohol and cocaine, defendant took
photographs of the boys and sexually assaulted them.
Docket No. 17-2 at 2.
Standard of Review
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
(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;
(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). Applicant bears the burden of proof
under ' 2254(d). See Woodford v. Visciotti, 537
U.S. 19, 25 (2002) (per curiam).
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. (collecting cases). 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. at
99. “Where there has been one reasoned state judgment
rejecting a federal claim, ” federal habeas courts
should presume that “later unexplained orders upholding
that judgment or rejecting the same claim rest upon the same
ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803
“[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. at 98. 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, this 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.
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 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.
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.
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
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.
Court's inquiry pursuant to the Aunreasonable
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. The Supreme
Court has also stated:
[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]
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. at 102. 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.” v. Pinholster, 563 U.S. 170, 181
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
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.
Court reviews claims asserting factual errors pursuant to 28
U.S.C. “2254(d)(2). See Romano v. Gibson, 278
F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows the Court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable
determination of the facts in light of the evidence presented
to the state court. Pursuant to § 2254(e)(1), the Court
must presume that the state court's factual
determinations are correct and Applicant bears the burden of
rebutting the presumption by clear and convincing evidence.
“The standard is demanding but not insatiable . . .
[because] '[d]eference does not by definition preclude
relief.'” Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
the Court's analysis is not complete “[e]ven if the
state court decision was contrary to, or involved an
unreasonable application of, clearly established federal
law.” Bland v. Sirmons, 459 F.3d 999, 1009
(10th Cir. 2006). “Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the
Court] must apply the harmless error standard of Brecht
v. Abrahamson, 507 U.S. 619 (1993) . . . .”
Id.; see also Fry v. Pliler, 551 U.S. 112,
121-22 (2007) (providing that a federal court must conduct
harmless error analysis under Brecht anytime it
finds constitutional error in a state court proceeding
regardless of whether the state court found error or
conducted harmless error review). Under Brecht, a
constitutional error does not warrant habeas relief unless
the Court concludes it “had substantial and injurious
effect” on the jury's verdict. Brecht, 507
U.S. at 637. “[A] 'substantial and injurious
effect' exists when the court finds itself in 'grave
doubt' about the effect of the error on the jury's
verdict.” Bland, 459 F.3d at 1009 (citing
O'Neal v. McAninch, 513 U.S. 432, 435 (1995)).
“Grave doubt” exists when “the matter is so
evenly balanced that [the Court is] in virtual equipoise as
to the harmlessness of the error.” O'Neal,
513 U.S. at 435.
Court makes this harmless error determination based upon a
review of the entire state court record. See Herrera v.
Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
“In sum, a prisoner who seeks federal habeas corpus
relief must satisfy Brecht, and if the state court
adjudicated his claim on the merits, the Brecht test
subsumes the limitations imposed by AEDPA.” Davis
v. Ayala, 576 U.S.__, 135 S.Ct. 2187, 2199 (2015)
(citing Fry, 551 U.S. at 119-120).
claim was not adjudicated on the merits in state court, and
if the claim also is not procedurally barred, the Court must
review the claim de novo and the deferential standards of
§ 2254(d) do not apply. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004).
Merits of Claims
Claim One, Applicant asserts that he was forced to represent
himself at trial over his objections and in violation of his
Sixth Amendment rights. Docket No. 8 at 14. Applicant further
asserts that he refused to waive counsel, did not waive
counsel, but was forced to go to trial without counsel over
his objections. Id.
addressing this claim, the CCA found as follows:
II. Right to Counsel
Defendant contends that his constitutional right to counsel
was violated because he was forced to represent himself
during trial. We disagree.
The fundamental right to the assistance of counsel is
constitutionally guaranteed by the Sixth Amendment. U.S.
Const. amend. 6; see Colo. Const. art. II, §
16; People v. Alengi, 148 P.3d 154, 159 (Colo.
2006). A defendant also has a correlative constitutional
right to self-representation. Alengi, 148 P.3d at
159. That right may be asserted affirmatively or by inference
when the defendant declines to be represented by counsel.
Before proceeding pro se, a defendant must knowingly,
intelligently, and voluntarily waive his constitutional right
to counsel. People v. Bergerud, 223 P.3d 686, 693
(Colo. 2010); People v. Krueger, 2012 COA 80, ¶
13. A defendant may waive assistance of counsel either
expressly or impliedly through his or her conduct.
Alengi, 148 P.3d at 159. An implied waiver occurs
when the defendant is deemed to have forfeited the right to
counsel, as opposed to having made a deliberate decision to
forgo the right. Id.
“Courts must ascertain whether, under the totality of
the circumstances, a defendant's conduct evinces a
voluntary, knowing, and intelligent waiver of right to
counsel.” Id. “A defendant's pattern
of obstreperous, truculent, and dilatory behavior may be
deemed relevant as to whether such conduct has been
undertaken with full awareness of the consequences of doing
so.” Id.; see also People v. Tellez,
890 P.2d 197, 198 (Colo.App. 1994) (“the defendant
cannot delay his [or her] trial indefinitely under the guise
of seeking counsel”).
Whether a defendant effectively waived his right to counsel
is a mixed question of fact and law that we review de novo.
Bergerud, 223 P.3d at 693; Krueger, ¶
B. Trial Court Proceedings
Five attorneys, in succession, represented defendant before
trial, and each requested and was granted permission to
withdraw from that representation. After the trial court
granted the fourth attorney's request to withdraw,
defendant said he did not want to be represented by counsel
and that he wanted to proceed pro se. The court then gave
defendant a thorough Arguello advisement regarding
his decision to represent himself. See People v.
Arguello, 772 P.2d 87, 95-96 (Colo. 1989). Defendant
repeatedly said he wanted to represent himself.
Defendant reaffirmed his decision to represent himself at the
next two pretrial hearings. On February 22, 2006, defendant
asked for a continuance and waived his right to speedy trial
so that he could hire advisory counsel to help him review
At a pretrial hearing three weeks before the new trial date,
defendant again asked for a continuance to hire advisory
counsel to help him review discovery. The prosecution
expressed concern that although defendant appeared pro
se and said he wanted to represent himself, he was, at
the same time, writing letters to the court saying he wanted
to be represented by counsel. During the hearing, defendant
affirmed that he wanted to represent himself and said he
wanted to hire advisory counsel to help him when he testified
at trial. The court denied defendant's request for a
Two weeks before trial, defendant's fifth attorney
entered an appearance and asked for a continuance to prepare
for trial. The court granted the request over the
prosecution's objection. The court expressed concern
“that there is a manipulative aspect of this that is
very obvious to the Court.” The court found that the
“past history of this case, as articulated by [the
prosecutor], speaks to the issue of there being an attempt to
avoid the ultimate resolution of this case before a
jury.” A few days before trial, defendant's fifth
attorney filed a motion to withdraw. The court granted
counsel's motion to withdraw, finding a conflict of
interest had arisen. The court then considered, and denied,
defendant's motion for a continuance.
The court noted that during defendant's competency
evaluation, the interviewer determined that defendant had
“a working knowledge of the legal system that surpassed
[that of] most individuals” and “a distinctly
acute understanding of the proceedings against him.”
The interviewer's diagnostic impression of defendant was
that he “appears to use the means available to him in
the moment to accomplish his goals, including threatening
suicide, threatening litigation, and intimidating those
around him.” The interviewer concluded that
defendant's “ability to work with his attorney to
develop the best defense possible is not an issue.” The
court found that defendant was “highly intelligent,
” had a long history of conflict with his counsel, and
had attempted to intimidate the court through use of
profanity. The court also found that defendant “has an
extremely high interest in exercising control, manipulating
and dominating.” The court summarized defendant's
history with counsel as follows:
What's clear to the Court is that the pattern in this
case is quite stark and is quite clear: Mr. Vreeland, while
having the ability to certainly retain counsel, retains
counsel, inescapably enters into a conflict, fires that
lawyer, and has to seek to retain new counsel; it's
occurred with [the former attorneys].
The court found that defendant, “when he was pro
se, was adamant, adamant in his desire to represent
himself” and that his “pro se pleadings reflect a
persistent, adamant desire to represent himself.” The
court further found that defendant “has obviously
manifested a desire to represent himself in the past, ”
including after extensive Arguello advisements.
On the morning of trial, a sixth attorney tried to enter a
“conditional entry of appearance, ” in which he
agreed to enter an appearance if the court granted a
continuance for him to prepare for trial. The court denied
the “conditional” entry of appearance because no
such motion exists under Colorado law. The court also denied
defendant's motion to continue the trial based on his
past manipulation of the process. Counsel did not enter an
appearance to represent defendant; instead, he acted as
defendant's advisory counsel during trial.
C. Analysis and Conclusion The record amply supports the
trial court's findings that defendant waived his right to
counsel. See Alengi, 148 P.3d at 159. Defendant said
repeatedly that he wanted to proceed pro se,
including after extensive Arguello advisements about
the consequences of his decision to do so. In addition,
defendant repeatedly said both orally and in writing that his
intention was to represent himself and that counsel had been
“forced upon him.” In addition, the totality of
the circumstances shown in the record also demonstrates that
defendant's actions impliedly waived his right to
counsel. See Id. Most, if not all, of the delay in
bringing the case to trial was a result of defendant's
repeated failure to maintain a working relationship with
counsel. See Tellez, 890 P.2d at 198. In addition,
the record shows that defendant had a pattern of threatening
counsel, filing meritless motions, and firing counsel as the
date of trial approached. Such behavior supports the
conclusion that defendant, who is “highly intelligent,
” was manipulating the legal system with full awareness
of the consequences of what he was doing. See
Alengi, 148 P.3d at 159.
Accordingly, we conclude defendant's right to counsel was
Docket No. 17-2 at 2-8.
Reply, Docket No. 68, at 22-23, Applicant argues that he
revoked his waiver of counsel and reasserted his right to
counsel in June of 2006. Applicant further argues that the
trial court allowed and encouraged Applicant's
reassertion of the right to counsel when it allowed Joseph
Scheideler to enter as counsel of record. Docket No. 68 at
22. Applicant contends that from June 2006 forward he did not
waive, expressly or implicitly, his right to counsel, and the
trial court never warned Applicant that the earlier waiver of
the right would somehow be revived against him. Id.
also asserts that the first attorney was hired by his family
only for the purpose of the bond hearing and the second
attorney was appointed by the trial court, but withdrew when
she learned Applicant was hiring private counsel.
Id. at 17. Applicant further asserts that there was
no indication of conflict, wrongdoing, or manipulation with
either of these attorneys. Id. Applicant also
contends that his third attorney moved to withdraw based on a
“cryptic” irreconcilable differences, but there
was no indication, allegation, or finding of manipulation or
misconduct by Applicant. Id. As for the fourth
attorney, Applicant asserts that his withdrawal was based on
vague and uncertain factual circumstances, which included his
representation of another defendant, but no findings were
made to determine that Applicant caused the withdrawal.
concedes the withdrawal of the fifth attorney did include a
factual dispute, but he asserts the trial court refused to
investigate the details of the dispute and imputed the blame
for withdrawal on Applicant. Id. at 17-18. Applicant
contends he did not waive his right to counsel when the fifth
attorney withdrew, but he reasserted his right to counsel and
made clear he could not try the case pro se.
Id. at 18.
asserts, when he hired a sixth attorney and that attorney
requested a continuance to prepare for trial, the trial
court's denial of the continuance violated
Applicant's right to counsel. Id. at 28-29.
Applicant claims the trial court ruled that he had waived his
right to counsel without first warning him that his conduct
might lead to a waiver and without conducting an actual
hearing. Id. Applicant also contends that he was
represented by his fifth attorney up to November 17, 2006,
when he withdrew eleven days before trial. Id. at
25. Applicant further contends that at this time he expressed
to the trial court he could not try the case by himself.
Applicant states that the only time he expressed a
willingness to proceed pro se was when his fourth
attorney withdrew on February 8, 2006. Id.
Court has reviewed the state court record to clarify when
each attorney entered an appearance on Applicant's behalf
and then subsequently withdrew, and the circumstances
surrounding the withdrawals. The Court finds as follows:
October 18, 2004, Declan J. O'Donnell entered an
appearance on behalf of Applicant in Criminal Case No.
04CR706 in the District Court for Douglas County, Colorado.
Case No. 04CR706 Court File at 000055. Mr. O'Donnell
filed a motion to withdraw as Applicant's attorney on
October 25, 2004 because Applicant had (1) misrepresented his
named as Barry Clayton Steeves; (2) posted a $100, 000 surety
bond for a $15, 000 fee, which the monies were from a stolen
credit card; (3) absconded from Colorado; (4) a no bond hold
in Michigan; (5) numerous warrants pending for theft; and (6)
caused the retainer to be executed on fraudulent grounds.
Id. at 000107. The motion to withdraw was granted on
December 3, 2004. Id. at 000126. A notice of the
motion to withdraw was waived because Applicant had absconded
and his whereabouts were unknown. Id.
February 3, 2005, Magistrate Judge Marker, in the County
Court for Douglas County, Colorado, determined Applicant was
indigent and ordered a private attorney, Juliet Miner,
appointed because a co-defendant was represented by the
public defender. Id. at 000141. Ms. Miner entered an
appearance on February 8, 2005 and filed a motion for
discovery. Id. at 000142. At a bond hearing on
February 17, 2005, Ms. Miner informed the trial court that
Applicant had asked her to withdraw as his attorney because
he was hiring a private attorney and she was “not doing
what he believes he needs to be doing.” Feb. 17, 2005
Hr'g Tr. at 2. Judge Marker then had a colloquy with
Applicant as follows:
THE COURT: All right, Mr. Vreeland what are your intentions
regarding hiring your own counsel?
MR. VREELAND: I hired my own counsel before I was even
brought here. But both Courts had told me that I don't
have a right to contact them and we both know that that's
been on the record. So what I did is I filed a motion up in
the Federal Court in Denver. I, I have the right to have my
own counsel, I have the right to retain, I hired Steve
Goodwin and I hired Tom Henry. Both this Court and Judge King
said I don't have the right to communicate with them. So
now what I'm doing is I'm using someone else, I'm
going to retain Steinberg and I'm going to have Tom Henry
- - THE COURT: And how do you plan on doing that Mr.
MR. VREELAND: How do I plan on what?
THE COURT: Hiring Mr. Steinberg?
MR. VREELAND: My family's going to hire them why, I
don't think how I retain somebody is important, the fact
that-- THE COURT: Okay, well don't tell me what's
MR. VREELAND: Your Honor I'm hiring my own attorney and
there's nothing you can do about it, that's that.
I'm hiring my own counsel.
THE COURT: Okay, we're done.
MR. VREELAND: That's it, you're right.
THE COURT: Ms. Miner you will have to continue representing
him until someone else answers, all right?
Id. at 3-4.
Miner appeared on Applicant's behalf at the February 24,
2005 hearing, during which the preliminary hearing was
continued until Mr. Steinberg had been retained and would
hopefully appear. Feb. 24, 2005 Hr'g Tr. at 3. On March
8, 2005, Harvey A.
entered an appearance, on behalf of his firm, and requested
discovery. Case No. 04CR706 Court File at 000143. On March
10, 2005, an entry of appearance was made by Adam Tucker, an
attorney in Mr. Steinberg's firm. Mar. 10, 2005 Hr'g
Tr. at 2-3. On March 11, 2005, Applicant submitted a letter
to Judge Marker and asked that he be allowed to waive counsel
and enter a plea because of the conditions of his
confinement. Id. at 000151-57.
on May 12, 2005, Applicant appeared at the preliminary
hearing with Mr. Steinberg and Mr. Leach, apparently another
attorney from Mr. Steinberg's firm. May 12, 2005 Prelim.
Hr'g. At the end of the hearing, Applicant chose to speak
on his behalf, against the recommendation of his attorney,
id. at 144 (page 31 of the hearing transcript),
regarding the $1 million dollar bond the court was setting.
Applicant was argumentative with the judge, accused her of
being prejudicial because she had been a district attorney,
and asked the judge to recuse herself, even though he was
represented by counsel at the time. Id. at 153-54
(pages 40-41 of the hearing transcript).
May 12, 2005, May 27, 2005, and June 15, 2005, Mr. Steinberg
filed three motions to reduce bond. Case No. 04CR706 Court
File at 000189, 193, 195. On June 17, 2005, a motion for
extension of time to brief the issuance of bail was filed by
Matthew T. Berumen on behalf of Applicant. Id. at
000197. On July 26, 2005, Mr. Steinberg filed a motion to
withdraw and a notice of withdrawal. Id. at
000202-204. In the motion to withdraw, Mr. Steinberg asserts
that he and Applicant had developed irreconcilable
differences with regard to Mr. Steinberg's
representation. Id. at 204. In the notice of
withdrawal, Mr. Steinberg informed Applicant, in particular,
that (1) a hearing would be scheduled on the motion to
withdraw; (2) he had a right to object to the withdrawal; and
(3) withdrawal will be allowed if approved by the court.
Id. at 000202-203.
September 13, 2005, a hearing was held to address Mr.
Steinberg's motion to withdraw. The colloquy between the
court, Mr. Steinberg, and Applicant was as follows:
THE COURT: And you have a motion to withdraw?
MR. STEINBERG: Correct.
THE COURT: Anything you care to add?
MR. STEINBERG: No, Your Honor.
THE COURT: Mr. Vreeland, your position with respect to the
motion to withdraw?
MR. VREELAND: He needs to withdraw.
THE COURT: That request is granted.
MR. STEINBERG: Thank you.
MR. VREELAND: Can I ask you a question?
THE COURT: Go ahead.
MR. VREELAND: About a month ago I had two attorneys, two
firms, ask Mr. Steinberg for the discovery and legal
materials but he won't give up either. I won't use
the words he used. You have told me not to swear to the
court. He refused to give up anything.
THE COURT: It sounds to me like you are having an issue with
Mr. Steinberg and the retention of discovery; is that
MR. VREELAND: That and money that I gave him. There is [a]
man from the Supreme Court his name is -- I can't
remember. He is an attorney for counsel regulation. He told
me to bring it up to the Court. What happen so far is he
started a complaint. Harvey, he refuses to give up any of the
money at all. He kept way more money than he was supposed to
keep. He is refusing to give up discovery. It's been way
over a month since this happened.
THE COURT: With respect to that issue, thank you for bringing
it to my attention. If there are disciplinary issues they
will resolve that. With respect to the discovery question, if
you retain new counsel and the court appoints new counsel to
represent you, they will get discovery either through Mr.
Steinberg or through the DA's Office.
MR. VREELAND: They have and they are being denied.
THE COURT: Who is your new lawyer?
MR. VREELAND: Shawn [sic] Young and Tom Henry.
Sept. 13, 2005 Hr'g Tr. at 2-3.
the September 13 Hearing, the next hearing was held on
September 22, 2005, during which attorney Sean Young appeared
on behalf of Matthew Berumen. The colloquy between the court
and Mr. Young at the September 22 hearing was as follows:
THE COURT: All right. Mr. Young, are you entering your
appearance then on behalf of Mr. Vreeland at this point?
MR. YOUNG: Actually, I'm not. I'd like to see the
document that entered our appearance on this in the first
place, because he originally had Harvey Steinberg on this
case, and I don't know how our law firm got on the case.
We had him for a bond issue on a separate issue, and somehow
our name got on the record for this case, which is a criminal
case, and obviously there's some sort of entry, because
now today Mr. Thomas Henry --- I'm entering appearance
for Mr. Henry and appearing for him today. He's recently
been licensed in the State of Colorado, and entering
appearance for him and trying to withdraw ourselves, because
we never entered our appearance on this specific case.
THE COURT: All right. Well, actually, we don't have you
entering on this case.
MR. YOUNG: Okay, good.
THE COURT: We have Mr. Steinberg, who the Court permitted to
withdraw last time, and Mr. Vreeland indicated to the Court
that you would be his lawyers on this case. So my clerk
contacted you advising the matter was set over today for
appearance of counsel.
Sept. 22, 2005 Hr'g Tr. at 2-3.
September 21, 2005, Thomas E. Henry made an entry of
appearance as counsel for Applicant. Case No. 04CR706 Court
File at 000263. Mr. Henry, thereafter, filed several motions
for the presiding judge to recuse, a motion for continuance,
a motion to evaluate Applicant's competency, a motion for
an independent evaluation, discovery motions, request that
author of laboratory report testify, a motion to dismiss for
violation of speedy trial rights, motion to allow independent
examination, motion to dismiss for violation of
attorney/client privilege, a motion for dismissal of habitual
criminal counts, and a motion to specify Rule 404 evidence.
Id. at 000264, 266, 276, 282, 294, 300, 305, 306,
308, 311, 313, 316, 319, 324, 326, 328, 331, 333, and 338.
January 27, 2006 hearing, Mr. Henry, in support of the motion
for speedy trial, stated as follows:
In this particular sequence of events starting back at the
end of January, February, March, April, there were numerous
examples where if there was an attorney present, the
defendant made the assertion that he wanted to represent
himself and proceed without counsel, which in each instance
There were instances where he was represented by the public
defender, and in each instance where the public defender
asked - either that she wasn't prepared or hadn't
received the discovery or some reason, the defendant
continually asserted that he would represent himself to
proceed, and that despite those representations, the Court
would turn down or deny his permission to represent himself,
and without proper advisement to the defendant would deny or
continue the proceeding without the defendant's
acknowledgement of what effect that may have on his speedy
Jan. 27, 2006 Hr'g at 36.
January 31, 2006, Applicant filed a letter addressed to Judge
King requesting that he be able to represent himself. Case
No. 04CR706 Court File at 344. He asserted that he had asked
to represent himself many times and his right to
self-representation constantly had been denied in violation
of his speedy trial rights. Id. Applicant further
stated that he had filed motions pro se since
February 2005 and this issue needed to be addressed.
February 8, 2006, the trial court addressed the request of
Applicant's third attorney (Mr. Henry) for permission to
withdraw as counsel for Mr. Vreeland. Feb. 8, 2006 Hr'g
Tr. at 3. At issue in Mr. Henry's request to withdraw was
a criminal report prepared by the sheriff's office,
reflecting Applicant's assertion that Mr. Henry had tried
to blackmail Applicant for the money that allegedly had been
stolen by another of Mr.
clients. Id. at 4. According to Mr. Henry, Applicant
denied the allegations and told Mr. Henry he had to do what
he had to do. Id. at 5. The prosecution then
addressed the issue as follows at the hearing:
MR. VAHLE: Judge, I don't have a lot of argument as to
whether or not he should be allowed to withdraw. I want the
record to be very clear, though, as to how this came about.
Lieutenant McMahon is here. If the Court wishes, I can either
add to the offer of proof which counsel has put on the
record, which I think is --what he stated is all true. Or I
can call Lieutenant McMahon to detail the circumstances. But
I think given the nature of the litigation in this case,
there needs to be a very clear record of how this came about.
THE COURT: If you wish to make an offer proof, you may.
I've heard from Mr. Henry; I don't dispute Mr.
Henry's statements in any way, shape, or form with
respect to what occurred. He's indicated to the Court he
has a conflict. I'm not even permitted to really inquire
into the conflict. If counsel indicates he's got one,
then that's probably about all the further inquiry that I
MR. VAHLE: And, Judge, if I may make just a little more
record. I've talked to Lieutenant McMahon, and my
understanding is about mid-December Mr. Vreeland approached
him and wanted to level a complaint against Mr. Henry. He did
tell Lieutenant McMahon that Mr. Henry was trying to
blackmail him. He provided him some documentation, including
some sort of power of attorney documents that were -- have
Mr. Henry's name and address on them allegedly prepared
for the transfer of some moneys.
There was this statement, as Mr. Henry discussed, that Mr.
Vreeland and Mr. Wanta, Leo Wanta, had been involved in some
crime, had some access to a bank account, and how somehow Mr.
Henry and Mr. Wanta were attempting to blackmail Mr.
Vreeland. He requested that Lieutenant McMahon have the FBI
look into that.
Lieutenant McMahon did follow up on that request, did ask the
FBI to investigate. The FBI, after some discussions -- and I
think there was some trouble getting ahold of him -- frankly
refused to come and speak with Mr. Vreeland having spoken
with him on numerous occasions about other matters and,
frankly, finding him to be incredible said, “We
don't even want to talk to him.” So there was no
investigation I know of by the FBI.
That material was then turned over to Dea Aragon. There was
some discussion in earlier hearings about the timing of this
material coming up. I think that's important for future
That material was turned over to Dea Aragon on the 12th of
January. Dea Aragon had surgery and had her gallbladder
removed on the 13th of January, returned to her office on the
25th of January, and reviewed that material for the first
time on the 26th of January. And it was provided to the
district attorney's office on the 27th, and then provided
that morning to counsel.
So that's all the record I want to lay. I don't have
any position as to the issue.
Feb. 8, 2006 H'rg Tr. at 6-8.
Henry then confirmed his desire to withdraw after the
prosecution made the above offer of proof. Id. at 8.
The trial court asked Applicant if he wanted to have counsel
represent him, to which Applicant responded,
“No.” Id. Applicant also responded
“yes” to the court's question if he wanted to
proceed pro se and stated that he wanted to
“finish the motions today, please.” Id.
The Court then provided the Arguello advisement to
Applicant as follows:
THE COURT: Mr. Vreeland, do you understand that you have the
right to be represented by counsel throughout these
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that if you cannot afford an
attorney, that one will be provided to you free of charge?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that I will appoint counsel if
you want an attorney to represent you?
THE DEFENDANT: Yes, I do.
THE COURT: Previously you've been advised of the charges
against you. Do you recall the advisement of the charges that
are currently pending against you?
THE DEFENDANT: Yes, I do.
THE COURT: And I believe there has been -- do you recall
being advised of the potential punishment with respect to the
charges that are pending against you?
THE DEFENDANT: Oh, yes, I do.
THE COURT: And there's been the addition of some habitual
criminal counts. Have you been advised with respect to the
potential consequences of the habitual criminal counts and
the punishment with respect to that?
THE DEFENDANT: Yes, I do.
THE COURT: All right. Do you have any formal legal training?
THE DEFENDANT: A little bit.
THE COURT: How much is a little bit?
THE DEFENDANT: I have 17 different certifications.
THE COURT: How far have you gone in school?
THE DEFENDANT: Bachelor's.
THE COURT: Are you under the influence of any drug,
medication, or alcohol that would affect your ability to
understand these proceedings?
THE DEFENDANT: No, I do not.
THE COURT: Do you wish to consult with the public defender
before you make a decision to waive counsel and ...