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Duran v. Archuleta

United States District Court, D. Colorado

August 10, 2017

LOU ARCHULETA, Warden of Fremont Correctional Facility, and CYNTHIA COFFMAN, Attorney General, State of Colorado, Respondents.


          Richard P. Matsch, Senior District Judge.

         Jaime 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.

         That order was affirmed on appeal by the Colorado Court of Appeals on October 8, 2015.

         The 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.

         The 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.

         The 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.

         The respondents assert that Duran's application should be dismissed because of procedural default.

         In 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.

         The 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.

         The 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.

         That 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 counsel.[1]

         The 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. § 2254(b)(1)(A).

         The Colorado Court of Appeals relied on C.A.R. 10(b)(c) in denying review of Judge Kennedy's ruling for the lack of trial transcripts.

         The failure of post-conviction counsel to comply with that rule could not be raised as ineffective assistance under Davila.

         The claims of ineffective assistance of trial counsel in this application have been procedurally defaulted and must be dismissed.

         Because 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.

         Jamie 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.

         The 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 ...

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