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Martinez v. Travis Trani

United States District Court, D. Colorado

January 25, 2018

SAMUEL V. MARTINEZ, Applicant,
v.
TRAVIS TRANI, Co. State Penitentiary, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. v.

          OPINION AND ORDER ADOPTING RECOMMENDATION AND DENYING PETITION FOR WRIT OF HABEAS CORPUS

          Marcia S. Krieger Chief United States District Judge

         THIS MATTER comes before the Court pursuant to Mr. Martinez's Objections (# 58) to the Magistrate Judge's Recommendation (# 55) that Mr. Martinez's Amended Petition (# 21) for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied.

         FACTS

         The Recommendation recites the pertinent facts and Mr. Martinez has not lodged any objection to the accuracy of that recitation. Accordingly, the Court adopts the Recommendation's factual summary and recaps it only briefly here.

         In 2007, Mr. Martinez was arrested for allegedly robbing a gas station. During an interview with police, which was recorded on video, Mr. Martinez was shown surveillance photos of the robber, to which he responded “damn.” He nodded his head when asked if he had done it because of drugs, and he then asked to speak to an attorney.

         Mr. Martinez was charged with two counts of armed robbery and four counts of being a habitual criminal. He proceeded to trial. At trial, a portion of the video interview was played for the jury, and during closing arguments, Mr. Martinez's counsel argued to the jury that they should discount what Mr. Martinez said or did during the interview, noting that the police failed to ask him important questions to clarify what he meant by his statements or actions. In rebuttal argument, the prosecution argued that “there's something else missing [from the video]”:

[Mr. Martinez] looking at Detective Dawson and Detective Withe saying “you guys are nuts. Are you kidding me? That wasn't me. This wasn't me. I wasn't there. I didn't do this.” That's not how [Mr. Martinez] replied when he was confronted.

         The prosecutor continued, addressing a defense argument as to why Mr. Martinez would have agreed to participate in the video interview if he was truly guilty: “[he] was curious. [He] wanted to know what do you have on me. . . That's why he's not screaming ‘This wasn't me.'”

         Mr. Martinez was convicted on all counts and sentenced as a habitual criminal to 64 years in prison. He exhausted his appeals to the Colorado Court of Appeals and Colorado Supreme Court. He then filed the instant Amended Petition (# 21) for a writ of habeas corpus pursuant to 28 U.S.C. §2254. As pertinent here, only two of his claims were found to be exhausted and properly before the Court: (i) that the State violated his rights under the Fifth Amendment by commenting upon his silence during the video interview; and (ii) that he received ineffective assistance of trial counsel, insofar as counsel never advised him of the potential sentence he faced on the habitual criminal charges, such that he would have sought a plea deal instead of going to trial.

         The Court referred Mr. Martinez's Amended Petition to the Magistrate Judge for a Recommendation. The Magistrate Judge recommended (# 55) that the Petition be denied. Specifically, the Magistrate Judge found: (i) as to the Fifth Amendment claim, the Colorado Court of Appeals reasonably applied federal law in determining that Mr. Martinez had not yet invoked his Fifth Amendment rights during the time period at issue and in concluding that Mr. Martinez's own closing argument opened the door to commentary on what occurred (or didn't) during the interview; and (ii) as to the ineffectiveness claim, the Colorado Court of Appeals reasonably applied federal law in concluding that Mr. Martinez could not show prejudice from any error by counsel, insofar as there was no indication that a plea offer was ever made or that the court would have been likely to accept any plea deal.

         Mr. Martinez filed timely Objections (# 55) to the Recommendation. His particular arguments are fairly brief and highly generalized. He argued that “this persuasive district attorney” raising the issue of his silence during the interview must certainly “have [had] an immediate effect with human emotion, ” and questioned how one could conclude that “this tactic . . . did not affect the outcome of the trial.” As to the ineffectiveness claim, he suggested that his trial counsel be called upon to testify “that he misinformed me of what possible outcomes I faced.” Mr. Martinez also made a request that he be given “the opportunity to refile my 35(c) post conviction motion that [his prior counsel] submitted without conferring with me, ” suggesting that “there are many issues of relevance that were not raised.” ANALYSIS

         A. Standard of review

         The Court reviews the objected-to portions of the Recommendation de novo. Fed.R.Civ.P. 72(b).

         The Court finds no error in the Magistrate Judge's recitation of the standards governing habeas review, and this Court incorporates that recitation herein. It is sufficient to note that this Court considers only whether the state appellate court unreasonably applied the controlling federal law or whether the state court made an unreasonable error in ascertaining ...


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