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Acosta v. Raemisch

United States District Court, D. Colorado

March 30, 2017

GABRIEL ALEXANDER ACOSTA, Petitioner,
v.
RICK RAEMISCH, Exec Director, Colorado Department of Corrections, and CYNTHIA COFFMAN, Attorney General for State of Colorado, Respondents.

          MEMORANDUM OPINION AND ORDER

          Richard P. Matsch, Senior Judge

         An 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.

         At a 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.

         The court ordered separate trials with Dillon's case going first and Acosta's trial immediately after her trial.

         Patricia 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 supervised release.

         Upon 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.

         At a 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 withdrawal.

         The 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.

         On 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.

         An 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.

         Medina 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.

         In his 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 his defense.

         The 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 computation.

         There 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 ...


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