United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Richard P. Matsch, Senior Judge
Information filed on April 23, 2004, in the District Court,
Adams County, Colorado, charged Gabriel Alexander Acosta and
Chante Dillon with first degree murder for the killing of
Kimberly Dotson. A lawyer from the Adams County Public
Defender's Office appeared for Acosta on April 28, 2014.
motions hearing held on November 12, 2014, defense counsel
advised the court of a potential conflict of interest because
lawyers in that office had represented two of the state's
witnesses, the victim and the only eye-witness Patricia
Medina. The court appointed advisory counsel for Acosta to
discuss a waiver of those conflicts. At a hearing held on
November 23, 2014, that lawyer said he thought the conflicts
were not waivable but Acosta wanted to waive and the court
accepted his waiver.
court ordered separate trials with Dillon's case going
first and Acosta's trial immediately after her trial.
Medina failed to appear in response to subpoenas for two
hearings. As a result she was jailed. The court then ordered
the taking of her deposition to preserve her testimony for
use at the two trials if she did not appear for them. The
deposition for Dillon was taken on December 15, 2004, with
cross-examination by her appointed counsel. Acosta's
public defender cross-examined Medina on December 22, 2014.
At the conclusion of that deposition an attorney for Medina
requested her release which the court granted, requiring that
she post a $2, 500 personal recognizance bond and report to
her failure to report as ordered, an arrest warrant was
issued on January 20, 2005, and Medina was returned to jail.
She testified at Dillon's trial in March, 2015. Dillon
was convicted of manslaughter.
hearing on Thursday, March 31, 2015, four days before the
scheduled start of Acosta's trial on Monday, April 4,
2015, the public defender advised the court that a
non-waivable conflict had been discovered requiring his
court accepted counsel's statement that he could not
ethically disclose the conflict and granted his withdrawal.
The court then engaged in a colloquy with Acosta informing
him that he had the choice of proceeding pro se or
waiving his right to speedy trial to permit new appointed
counsel to prepare for trial which could not be done before
the trial to begin four days later. Given that choice, Acosta
waived speedy trial and the trial was rescheduled to begin on
August 29, 2005.
April 6, 2015, counsel for Medina asked the court to release
her because of the delay in the trial setting. The court
granted that request, released her on a $500 personal
recognizance bond and an order to report to supervised
release the following morning. She did not report as ordered.
Acosta was not present and no lawyer represented him at that
hearing. New counsel for Acosta entered their appearance on
April 8, 2015.
arrest warrant for Medina was issued on July 1, 2015. Medina
was not located and at Acosta's trial her testimony was
read to the jury from the deposition. It had been videotaped
but defense counsel requested the reading to enable him to
submit cross-examination from other transcripts.
was arrested in Denver on unrelated charges on September 1,
2015, the same day that the transcripts were read. The Denver
Sheriff advised the Adams County Sheriff of this arrest by
faxes sent on September 2 and September 6, 2015.
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254, Acosta claims that he was denied two of the
protections afforded by the Sixth Amendment to the United
States Constitution-the right to be confronted with the
witness against him and to have the assistance of counsel for
first claim is that if he had been represented by a lawyer at
the March 31, 2015, hearing on the withdrawal of the public
defender he would not have had to waive speedy trial and the
trial could have proceeded with a much shorter delay keeping
Patricia Medina in jail until she testified at trial. The
applicant contends that the trial judge assumed that not
enough time remained on the statutory speedy trial limit to
give newly appointed defense counsel an adequate opportunity
to prepare for trial. That assumption is said to be wrong
because more than 50 days remained according to Acosta's
was no counsel for Acosta present to object to the
court's release of the witness on April 6, 2015. The
transcript of that hearing shows that the judge considered it
unfair to keep her in jail for another five months. If
defense counsel could not have persuaded the judge that her
availability for trial was critical, at least he would have
assured that her release would have ...