United States District Court, D. Colorado
SAMUEL V. MARTINEZ, Applicant,
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
S. Krieger Chief United States District Judge
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.
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
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.
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
[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.
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
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
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.
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
Standard of review
Court reviews the objected-to portions of the Recommendation
de novo. Fed.R.Civ.P. 72(b).
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