United States District Court, D. Colorado
ORDER DENYING WRIT OF HABEAS CORPUS
Richard P. Matsch, Senior District Judge.
Duran is serving a sentence of life in prison having been
found guilty of First Degree Kidnapping and other crimes by a
jury in the District Court, El Paso County, Colorado in
March, 2007. In this Application for Habeas Corpus under 28
U.S.C. § 2254 Duran seeks to vacate that conviction
alleging that it was the result of ineffective assistance of
trial and appellate counsel in violation of the Sixth
Amendment to the United States Constitution. The particular
failures of adequate performance were alleged in a motion for
post-conviction relief under Crim. P. 35(c) filed by present
counsel which was denied without a hearing by an order
entered on May 2, 2013, by District Judge Thomas Kennedy, who
was not the trial judge.
order was affirmed on appeal by the Colorado Court of Appeals
on October 8, 2015.
motion included a lengthy and detailed account of the facts
of the case from Duran's perspective with excerpts from
trial transcripts. There was a stipulation agreeing to those
asserted facts for the purpose of determining whether an
evidentiary hearing would be required.
appeals court ruled that because counsel did not include the
trial transcripts in the record on appeal the presumption of
regularity applied and because Judge Kennedy wrote in his
order that “all of the alleged errors were a matter of
record” and the appeals court presumed that the record
included trial transcripts. There is no indication that the
district judge had read the transcripts. The order apparently
relied on records other than transcripts and it was agreed
that the court would consider the defendant's summary
included in the motion.
Colorado Court of Appeals referred to the rules of appellate
procedure in its order that counsel's failure to include
trial transcripts prevented review of the district
judge's findings and conclusions.
respondents assert that Duran's application should be
dismissed because of procedural default.
Coleman v. Thompson, 501 U.S. 722 (1991) the Supreme
Court held that respect for state courts required the denial
of habeas corpus by a federal court when the state appellate
court denied review because the notice of appeal was filed
late. That denial was an application of a procedural rule by
the Virginia Supreme Court.
United States Supreme Court reviewed its precedents
establishing the doctrine that claims of Constitutional error
in habeas corpus proceedings will not be addressed if they
were rejected by a judgment that rests on independent and
adequate state procedural grounds.
Court recognized an exception to that doctrine in
Martinez v. Ryan, 566 U.S. 1 (2012) holding that a
federal habeas court may excuse a procedural default of an
ineffective assistance of trial counsel claim when
post-conviction counsel failed to raise it and the claim
could not be asserted on direct appeal.
qualification of Coleman was narrowed by the Court
in Davila v. Davis, 137 S.Ct. 2058 (2017) holding
that ineffective assistance of post-conviction counsel does
not provide cause to excuse the procedural default of claims
of ineffective assistance of appellate counsel because there
is no constitutional right to post-conviction
procedural default doctrine is related to the statutory
requirement that the applicant must exhaust the remedies
available in the state courts. 28 U.S.C. §
Colorado Court of Appeals relied on C.A.R. 10(b)(c) in
denying review of Judge Kennedy's ruling for the lack of
failure of post-conviction counsel to comply with that rule
could not be raised as ineffective assistance under
claims of ineffective assistance of trial counsel in this
application have been procedurally defaulted and must be
of the severity of the sentence imposed on the conviction for
first degree kidnapping and the failure of Judge Kennedy to
grant an evidentiary hearing or review the trial transcripts
it can be said that Duran has never had an opportunity to
present those claims fairly. Accordingly, they are reviewed
here to adjudicate them if the determination of procedural
default is reversed on appeal.
Duran and Doris Duran were married but separated in June,
2006. On the night of June 26, Ms. Duran drove to the marital
home in Colorado Springs, Colorado, after working her shift
as a Deputy Sheriff for El Paso County. Their relationship
was contentious and she had obtained a protective order
against Duran a few days earlier. She testified that when she
got out of her car Duran, armed with a handgun, grabbed her
by the arm, took her purse and forced her into his
automobile, a Chevy Tahoe and drove south on Highway I-25.
Fearful of being shot she said he would do anything he
wanted. She said that he made her undress and perform oral
sex. Duran drove about 60 miles to a remote location near
Boone in Pueblo County.
Colorado Court of Appeals described the following events.
Defendant stopped the car at a dark location near Boone. The
fearful victim said she would do anything. She suggested they
could reconcile and feigned willingness to have sex.
Defendant told the victim to get on top of him; when she said
she was in pain, he told her to get in the back seat and
masturbate. The couple then had intercourse, which the victim
testified was not consensual.
The Sheriff's Office called the victim's cell phone
and pager. Defendant, seeing the numbers, expressed concern
about being caught. The victim promised to lie and not tell
anyone what had happened.
Defendant began driving back and threw his gun (which was
never found) over a bridge. The victim convinced him to stop
at a convenience store for water. He went inside, leaving the
keys in the ignition. The ...