United States District Court, D. Colorado
BRIAN C. STRAUB, Applicant,
BARRY GOODRICH, BCCF Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER TO DISMISS IN PART AND FOR ANSWER
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE.
Straub initiated this habeas corpus action, pro se,
on January 9, 2014, challenging the validity of his
convictions in the District Court of Denver County, Colorado.
(Docket No. 1). He submitted an Amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, on
January 30, 2014. (Docket No. 4). Mr. Straub has paid the
$5.00 filing fee.
time of filing, the ineffective assistance of counsel (IAC)
claims asserted in the Amended Application were unexhausted.
Respondents argued in a pre-answer response (Docket No. 9)
that the Amended Application should be dismissed as a mixed
petition, pursuant to Rose v. Lundy, 455 U.S. 509,
520-22 (1982). On July 18, 2014, Magistrate Judge Boyd N.
Boland directed Applicant to show cause why the Amended
Application should not be dismissed as a mixed petition and
ordered both parties to address whether a stay of this action
was appropriate pursuant to Rhines v. Weber, 544
U.S. 269, 275-76 (2005). On September 30, 2014, Senior District
Judge Lewis T. Babcock entered an order staying this case
pending Applicant's exhaustion of his IAC claims in the
state courts. (Docket No. 18).
September 13, 2017, Mr. Straub filed a Brief (Docket No. 39)
notifying the Court that the Colorado Court of Appeals had
issued a decision affirming the state district court's
denial of post-conviction relief. Magistrate Judge Gordon P.
Gallagher thereafter ordered Respondents to file an amended
pre-answer response addressing all of Applicant's claims.
(Docket No. 40). Respondents filed an amended pre-answer
response (Docket No. 48), on November 3, 2017. Applicant
filed a reply (Docket No. 49), on November 20, 2017.
Straub's filings are construed liberally because he is
not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the court should not act as an advocate for pro se
litigants. See Hall, 935 F.2d at 1110. For the
reasons stated below, the Court will dismiss the Application,
State Court Proceedings
2, 2008, Mr. Straub was convicted of aggravated robbery and
second-degree kidnapping in Denver District Court Case No.
07CR2494. (Docket No. 1 at 1-2). He was sentenced to
consecutive 10-year terms for the offenses. (Id. at
1). Mr. Straub's convictions were affirmed on direct
appeal in People v. Brian C. Straub, No. 08CA1587
(Colo.App. March 8, 2012) (unpublished) (Straub I).
(Docket No. 4 at 29-44). The Colorado Supreme Court denied
his petition for certiorari review on January 7, 2013.
(Id. at 50). Applicant did not file a petition for
certiorari review in the United States Supreme Court.
September 10, 2014, after Mr. Straub initiated this federal
habeas proceeding, he filed a motion for post-conviction
relief pursuant to Colo. R. Crim. P. 35(c) (“Rule 35(c)
motion”) in the state district court. (Docket No. 17 at
53-69 and No. 17-1; see also No. 39 at 29). The
post-conviction motion was denied on December 14, 2014.
(Docket No. 39, at 29-32, 64). The Colorado Court of Appeals
affirmed in People v. Brian C. Straub, No. 15CA153
(Colo.App. Sept. 7, 2017) (unpublished) (Straub II).
(Id. at 33-62).
petition for rehearing was denied on November 2, 2017.
(Docket No. 48-2).
The Amended Application
Straub asserts the following claims for relief in the Amended
1. Due process violations under Brady v. Maryland,
373 U.S. 83 (1963), in that the prosecution failed to
(a) The existence of a database of vehicle license plate
numbers entering and leaving DIA parking facilities, which,
had it been reviewed prior to trial, would have shown that a
vehicle registered to Applicant and his father entered DIA at
the approximate time of the robbery, which in turn would
corroborate Applicant's alibi defense
(Docket No. 4 at 4, 9-13);
(b) Criminal histories of three prosecution witnesses
(id. at 4, 13-14).
2. Prosecutorial misconduct, specifically:
a. Suggesting, through cross-examination of defense witnesses
and in closing argument, that Applicant had a burden of
proving his innocence (id. at 5, 14-21);
b. Commenting, during cross-examination of Applicant, on
Applicant's invocation of the Fifth Amendment privilege
of remaining silent (after speaking with police)
(id. at 17).
3. Ineffective assistance of counsel, in that counsel failed
a. investigate the license plate database at DIA, which
counsel knew about prior to trial (id. at 5, 22-23);
b. object to the prosecution's late disclosure of the
database (id. at 22);
c. investigate the criminal backgrounds of three prosecution
witnesses (id. at 5-6, 23-24);
d. adequately prepare to undermine or rebut the
prosecution's evidence that DNA in a ski mask found at
the scene matched Applicant's (id. at 6, 24-25);
e. object to prosecution questions of alibi witnesses MH and
SF, which suggested that their lack of corroboration for
their alibi testimony undermined the credibility of their
testimony (id. at 25);
f. object to prosecution questions and argument suggesting
Applicant had a burden to prove his ...