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Vreeland v. Zupan

United States District Court, D. Colorado

December 20, 2016

DELMART E. J. M. VREELAND, III,
v.
DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

          PHILIP A. BRIMMER United States District Judge

         I. BACKGROUND

         Applicant 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.

         On 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.

         After 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.

         This 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.

         The 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 rights;
3) Trial court denied a competency hearing violating due process rights;
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.][1], and when they first met Applicant in violation of the Sixth and Fourteenth Amendments.

Docket No. 8 at 14-16, 20.

         Respondents 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 8, 2016.

         Subsequently, 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.

         The 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.
We affirm.
I. Background
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.

         II. ANALYSIS

         A. Standard of Review

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

         A claim 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 (1991).

         Even “[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.

         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 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.

House, 527 F.3d at 1018.

         The 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] 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. 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 (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.

         The 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)).

         Finally, 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.

         The 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).

         If a 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).

         B. Merits of Claims

         1. Claim One

         In 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.

         In 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.
A. Law
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. Id.
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, ¶ 15.
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 discovery.
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 continuance.
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 not violated.

Docket No. 17-2 at 2-8.

         In the 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. at 22-23.

         Applicant 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. Id.

         Applicant 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.

         Applicant 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.

         The 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:

         On 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.

         On 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. Vreeland?
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 important, okay?
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.

         Ms. 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.

         Steinberg 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.

         However, 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).

         Then on 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.

         On 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 correct?
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.

         Following 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.

         On 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.

         At the 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 was denied.
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 trial.

Jan. 27, 2006 Hr'g at 36.

         On 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. Id.

         On 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.

         Henry's 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 can make.
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 issues.
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.

         Mr. 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 proceedings?
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 ...

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