Trujillo v. Plough et al

Filing 48

ORDER. the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 8 is DENIED. This case is DISMISSED WITH PREJUDICE. There is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). The Motion to Hold Respondents in Contempt of Court for Failure to Comply with a Court Order 37 is DENIED as moot. By Judge Robert E. Blackburn on 6/17/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 09-cv-01712-REB
JOHN GERALD TRUJILLO,
Applicant,
vs.
PAM PLOUGHE, Warden, CTCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Blackburn, J.

This matter is before me on the pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) [#8]1 filed on September 14,
2009, by Applicant John Gerald Trujillo. Respondents filed an Answer to Application for
Writ of Habeas Corpus (“Answer”) [#36], and Applicant filed a Traverse [#42].
After reviewing the pertinent portions of the record in this case including the
Application, the Answer, the Traverse, and the state court record [#27], I conclude that
the Application should be denied.
I. Background
Applicant originally was charged in the District Court of Jefferson County,
Colorado, in three separate cases with multiple crimes concerning the rape and
kidnapping of three different women. Before trial, the cases were consolidated in Case

1

[#8] is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use
this convention throughout this order.

No. 00CR2531. Following a jury trial in the District Court of Jefferson County, Colorado,
Applicant was convicted of second degree kidnapping, attempted first degree sexual
assault, third degree sexual assault, two counts of second degree kidnapping of a victim
of sexual assault, two counts of first degree sexual assault, attempted second degree
murder, attempted sexual assault, and sexual assault by unwanted sexual contact by
the actual application of physical force or violence. At the conclusion of the trial,
Applicant was found to be a sexually violent predator and was sentenced to a term of
120 years to life in prison.
Applicant’s convictions were affirmed on direct appeal. See People v. Trujillo,
No. 01CA1673 (Colo. App. Apr. 14, 2005) (unpublished). On October 17, 2005, the
Colorado Supreme Court denied certiorari review, and on April 25, 2006, Applicant filed
a motion for postconviction relief pursuant to Colo. R. Crim. P. 35(c), in which he
asserted several ineffective assistance of counsel claims. On April 27, 2007, the trial
court, in a written order, denied the Rule 35(c) motion. The written order was affirmed
on appeal. See People v. Trujillo, No. 07CA1456 (Colo. App. Sept. 18, 2008)
(unpublished decision) [# 16-10]. The Colorado Supreme Court denied certiorari review
of the Rule 35(c) motion on February 17, 2009. [# 16-12].
Applicant filed the original Application for Writ of Habeas Corpus on July 20,
2009, and was instructed by the Court to file an Amended Application that is in keeping
with Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Court and that goes beyond notice pleading, which amended application he filed on
September 14, 2009.

2

The Court then conducted a preliminary review and dismissed three subparts to
Claim Two. The two claims for relief that remain are a violation of Applicant’s Fifth
Amendment right to remain silent and a violation of his right to effective assistance of
counsel. In Claim Two, seven sub-parts remain at issue including trial counsel’s failure
to (a) depose Detective Vince Berrera; (b) obtain exculpatory DNA evidence of one of
the victims that would have proven the victim lied to police about her rape; (c) interview
prosecution witnesses and obtain their criminal histories; (f) object to the prosecution’s
pretrial motion regarding the stabbing of one of the victims prior to her meeting
Applicant; (h) make a closing argument and point out the contradictions and
inconsistencies in the prosecution’s case; (i) object to an all-white, predominately
female jury; and (j) call two rebuttal witnesses to testify.2
II. Analysis
A. Standard of Review
I must construe the Application liberally because Applicant is not represented by
an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, I cannot act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court,
unless the state court adjudication:

2

In the Answer, Respondents maintain that Subpart j of Claim Two is procedurally
defaulted. I considered Respondents’ Motion for Reconsideration, which addressed this issue,
and denied the Motion on September 10, 2010. Again, as I stated in the September 10, 2010,
Order, none of the grounds warranting a motion for reconsideration was circumstantiated by
Respondents.

3

(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d).
I review claims of legal error and mixed questions of law and fact pursuant to 28
U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question pursuant to § 2254(d)(1) is whether Applicant seeks to apply a rule
of law that was clearly established by the Supreme Court at the time his conviction
became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established
federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's
decisions as of the time of the relevant state-court decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice.
Although the legal rule at issue need not have had its genesis in the
closely-related or similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).
If there is no clearly established federal law, that is the end of my inquiry
pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is
implicated, I must determine whether the state court’s decision was contrary to or an
unreasonable application of that clearly established rule of federal law. See Williams,
529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) “the state court applies a rule that
contradicts the governing law set forth in Supreme Court
4

cases”; or (b) “the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that]
precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006) ] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’ ”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application
of clearly established federal law when it identifies the
correct governing legal rule from Supreme Court cases, but
unreasonably applies it to the facts. Id. at 407-08.
Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle
from Supreme Court precedent to a new context where it
should apply.
House, 527 F.3d at 1018.
My inquiry pursuant to the “unreasonable application” clause is an objective one.
See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.
Rather that application must also be unreasonable.” Id. at 411. “[A] decision is
‘objectively unreasonable’ when most reasonable jurists exercising their independent
judgment would conclude the state court misapplied Supreme Court law.” Maynard,
468 F.3d at 671.
In addition,
evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. It is not an unreasonable
application of clearly established Federal law for a state
5

court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 131 S. Ct. 770, 786, --- U.S. --- (Jan. 19, 2011) (internal
quotation marks and citation omitted). The Court “must determine what arguments or
theories supported or . . . could have supported[ ] the state court’s decision” and then
“ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id.
“Even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citation omitted). “Section 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Id. (citation omitted).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671.
Furthermore,
[a]s a condition for obtaining habeas corpus relief from a
federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 131 S. Ct. at 786-87.
I review claims of factual errors pursuant to 28 U.S.C. § 2254(d)(2). See
Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the state court decision was based
on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to § 2254(e)(1), I must presume that the state court’s factual determinations
6

are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and Applicant bears the
burden of rebutting the presumption by clear and convincing evidence, see Houchin v.
Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). “The standard is demanding but not
insatiable . . . [because] ‘[d]eference does not by definition preclude relief.’ ” Miller-El
v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
(2003)).
A claim, however, may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for rejecting the claim. Richter,
131 S. Ct. at 784. (“[D]etermining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning”). Furthermore, “[w]hen a federal
claim has been presented to a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” Id. at 784-85. Even
“[w]here a state court’s decision is unaccompanied by an explanation, the habeas
applicant’s burden still must be met by showing there was no reasonable basis for the
state court to deny relief.” Id. at 784.
In other words, I “owe deference to the state court’s result, even if its reasoning is
not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).
Therefore, I “must uphold the state court’s summary decision unless [the court’s]
independent review of the record and pertinent federal law persuades [it] that [the] result
contravenes or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Id. at 1178.
7

“[T]his ‘independent review’ should be distinguished from a full de novo review of the
applicant’s claims.” Id. Likewise, I apply the AEDPA deferential standard of review
when a state court adjudicates a federal issue relying solely on a state standard that is
at least as favorable to the applicant as the federal standard. See Harris v. Poppell,
411 F.3d 1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in
state court, and if the claim also is not procedurally barred, I must review the claim de
novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004).
B. Claim One
Applicant alleges in his first claim that the trial court violated his Fifth Amendment
right to remain silent. Applicant contends that the trial court consolidated the three
separate cases charging him with rape and ruled that if he elected not to testify
regarding any allegations, the prosecution would not be able to cross-examine him.
Applicant further contends that contrary to this ruling, the court allowed the prosecution
to cross-examine him beyond the subject matter of his direct examination, which
infringed on his right either to testify or to remain silent.
The CCA provided the following factual background for this claim:
Defendant was originally charged in three separate cases. Before
trial, the prosecution moved to consolidate the cases. It also moved to
admit evidence of all the incidents as similar transactions to show
“common plan, scheme, design, and modus operandi, motive, intent,
identity and to refute the potential defenses of consent and recent
fabrication.”
Defendant opposed the motions. He told the court that he wanted
to testify in the case involving L.D. to establish that the encounter was
consensual, but that he would not testify in the other cases.

8

The trial court ruled that the similar transaction evidence satisfied
the test for admissibility under People v. Spoto, 795 P.2d 1314 (Colo.
1990), and would be admitted for the purposes cited by the prosecution.
The court also granted the motion to consolidate. However, to ensure that
defendant was not prejudiced, it ruled that the prosecution would “not be
able to cross examine him on the allegations as to which [he] chooses not
to testify.”
Defendant sought reconsideration of the court’s rulings. The trial
court declined to alter its ruling regarding similar transaction evidence, but
agreed that the case involving L.D. would be tried separately from the
other two cases.
The prosecution then sought reconsideration of the latter ruling.
After noting that evidence of all three incidents would be admitted in any
event under the trial court’s “similar transactions” ruling, the district
attorney stated that, to alleviate any prejudice to defendant from
consolidation, he would not impeach defendant with his prior felony
conviction if defendant testified.
The trial court denied the prosecution’s motion to reconsider,
stating that it was “sticking with my previous ruling.” However, the court
told defense counsel that it would try all the cases together with counsel’s
consent if counsel decided to accept the district attorney’s offer. Defense
counsel responded: “Judge, I appreciate that. I have not had an
opportunity to discuss that with Mr. Trujillo and about all of the
ramifications. I will do that over the weekend.”
The record does not reflect any further proceedings regarding
consolidation; however, trial began shortly thereafter on the three
consolidated cases.
At trial, when defendant told the court that he wanted to testify only
regarding the L.D. matter, the district attorney asked the court to advise
defendant that he could be cross-examined on the other matters pursuant
to the court’s rulings. Defense counsel objected to any cross-examination
beyond the scope of defendant’s direct testimony. The district attorney
agreed that certain facts of the other two cases would be outside the
scope of cross examination, but argued that he was entitled to bring out
similarities among the offenses to impeach defendant’s credibility and
rebut his defense of consent. After further colloquy, the court advised
defendant that he could be cross-examined about “facts that are similar”
among the three cases, and defendant reaffirmed his intention to testify.

9

Defendant testified on direct examination that he and L.D. had had
consensual sexual intercourse, and he testified to facts that could have
given L.D. reason to frame him because of his previous work as a
confidential drug informant.
The prosecution’s cross-examination consisted primarily of
questions regarding the L.D. incident. However, after confirming that
defendant was claiming that L.D. had set him up, the district attorney
elicited testimony that defendant had told the police the other two victims
were also setting him up. The district attorney also established that the
other victims were similar in age to L.D. and, like L.D., had been drinking
when defendant contacted them at a bar, had been physically assaulted,
and had ridden in defendant’s truck.
Trujillo, No. 01CA1673 at 1-4.
The CCA went on to analyze the claim as follows:
We also reject defendant’s related contention that the trial court
violated the law of the case doctrine by altering prior rulings regarding the
permissible scope of cross-examination.
Prior relevant rulings by a trial court in the same case are generally
to be followed by that court unless doing so would result in error or unless
changed conditions make the prior ruling no longer sound. However,
when applied to a court’s power to reconsider its own prior rulings, law of
the case is a discretionary rule of practice because it merely expresses
the practice of courts generally to refuse to reopen what has been
decided. People v. Vialpando, 954 P.2d 617 (Colo. App. 1997); see
People ex rel. Gallagher v. District Court, 666 P.2d 550 (Colo. 1983).
Thus, the trial court here had discretion to modify its prior rulings if
changed conditions made the prior rulings no longer sound. However, we
do not agree with defendant that the trial court in fact did so.
Review of the record establishes that, throughout the pretrial and
trial proceedings, the trial court was consistently concerned about
protecting defendant from prejudice by not allowing cross-examination
regarding the other incidents except to the extent those incidents had
already been ruled admissible, that is, to show modus operandi and the
like and to rebut the defense of consent. The admissibility of the evidence
for those purposes has not been separately challenged by defendant on
appeal.

10

Consistent with its pretrial rulings, the court did not allow the
prosecutor to cross-examine defendant regarding the other two cases
except for the purposes for which evidence of those cases had previously
been ruled admissible. Further, when defendant offered direct testimony
about “being set up” to support his consent defense, it was neither
inconsistent with the court’s prior rulings nor contrary to permissible rules
regarding the scope of cross-examination to allow the prosecutor to bring
out on cross-examination that defendant had also claimed that he was set
up in the other two cases.
Thus, this case is significantly different from People v. Gay, 24
P.3d 624 (Colo. App. 2000), on which defendant relies. In Gay, reversal
was warranted because the trial court forgot its earlier ruling and
inadvertently ruled to the contrary, causing prejudice to the defendant.
Such is not the case here.
For similar reasons, we reject defendant’s contention that his
constitutional rights were violated because the trial court’s “alteration” of
its ruling placed him in the untenable situation of having to choose
between his right to testify and his right to remain silent. As noted above,
the court did not “alter” its ruling, and defendant’s decision to testify was
made following a lengthy discussion and advisement informing him that he
could be cross-examined about similarities among the three cases if he
elected to testify. Cf. Apodaca v. People, 712 P.2d 467 (Colo. 1985)
(trial court improperly burdened defendant’s right to testify in his own
defense when it refused to rule, in advance of defendant’s decision to
testify, on whether prosecution could use his prior rape conviction as
impeachment evidence).
Id. at 6-8.
Applicant argues that he impermissibly was forced to choose between his right to
remain silent and his right to speak on his own behalf and exculpate himself. In
McGautha, the Supreme Court explained that although “a defendant may have a right,
even of constitutional dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid requiring him to choose. The
threshold question is whether compelling the election impairs to an appreciable extent
any of the policies behind the rights involved.” McGautha v. California, 402 U.S. 183,

11

213 (1971), vacated in part on other grounds by sub nom. Crampton v. Ohio, 408
U.S. 941 (1972). By waiving his rights, a defendant is subject to cross-examination “on
matters reasonably related to the subject matter of his direct examination.” Id. at 215.
In Crampton, the Court cited to many examples where the defendant was forced
to choose between competing rights. See Brown v. United States, 356 U.S. 148
(1958) (one who takes the stand in his own behalf cannot then claim the privilege
against cross-examination on matters reasonably related to the subject matter of his
direct examination); Spencer v. Texas, 385 U.S. 554, 561, (1967) (a defendant who
takes the stand in his own behalf may be impeached by proof of prior convictions or
otherwise inadmissible evidence); United States v. Calderon, 348 U.S. 160, 164 n. 1
(1954) (a defendant whose motion for acquittal at the close of the State's case is denied
must decide whether to stand on his motion or put on a defense, with the risk that in so
doing he will bolster the State’s case enough to support a verdict of guilty); Williams v.
Florida, 399 U.S. 78 (1970) (upheld a Florida law requiring a defendant to choose
between abandoning his alibi defense or giving the State both an opportunity to prepare
a rebuttal and leads from which to start).
Here, Applicant complains that the trial court allowed cross-examination in one of
the three consolidated cases that was beyond the subject matter of his direct testimony.
Applicant maintains that at no time during direct examination did he address allegations
made by the victims named in his other two criminal cases or allude to these individuals
or their motives in naming him as an offender in those cases. As a result, Applicant
contends that he was forced to provide a defense to those allegations in violation of his
Fifth Amendment rights.
12

Nothing Applicant asserts in his Application or Traverse demonstrates a violation
of his Fifth Amendment rights. First, Applicant fails to address the admissibility of the
victims’ allegations based on modus operandi and rebuttal to his consent defense as is
allowed under Colo. R. Evid. 404(b). Second, the CCA’s factual determinations are
entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). I have reviewed
the transcript of the trial court as it pertains to this issue, in particular Applicant’s
decision to testify and the cross-examination of Applicant, and find as follows.
During a pretrial hearing, the trial court determined there were striking similarities
between all three cases that support a similar transaction and allow for use to establish
a common plan, a scheme, a design, identity, modus operandi, motive, and intent.
Trujillo, Case No. 00CR2531, Trial Tr. Vol. V, Mar. 9, 2001, at 51. The trial court also
found that the striking similarities were enough to refute an allegation of consent or an
allegation of recent fabrication. Id. Furthermore, the trial court determined that the
similar transactions related to a material fact, were independently significant to show Mr.
Trujillo’s bad character, had probative value, and were not substantially prejudicial
compared with the probative value. Id. at 52. Finally, the trial court found that no crossexamination would be allowed “on any allegations as to which Mr. Trujillo chooses not to
testify.” Id. at 53.
This Court finds nothing by the trial court that suggests the court reversed any
prior ruling regarding the admissibility of any similar transactions for the purpose of
refuting an allegation of consent. The trial court considered a subsequent motion to
severe by defendant that was granted, and the prosecution’s motion to reconsider the

13

motion to severe, during which no change was made to the trial court’s initial ruling on
admissibility of any similar transactions. See id., Vol. X and Vol. IX at 100-26.
In fact, during the discussion on the motion to severe, the prosecution reiterated
the rule set forth by the trial court during the previous pretrial hearing that similar
transactions could be addressed if Applicant testified. Vol. IX at 110-11. At this time,
trial counsel agreed that the trial court had determined the similar transactions were
admissible. Vol. IX at 116. The trial court indicated during the discussion regarding the
severance issue that the admissibility of the similar transactions was not a concern.
Vol. IX at 118. The trial court also ruled prior to Applicant’s direct examination, and at
the time of his right to testify advisement by the court, that the prosecution on crossexamination could “go into similarities and modus operandi,” but the prosecution must
be careful because the cross-examination on similarities could be “very close to error in
this case.” Vol. XVIII at 96.
The trial court instructed Applicant regarding the prosecution’s ability to ask him
about facts that were similar in each case, and Applicant stated he understood. Vol.
XVIII at 97. Trial counsel added to the record that he had explained to Applicant he had
three options: (1) not to testify; (2) testify subject to the court’s ruling; and (3) advise the
court that he desired to testify but could not because of the scope of the examination
the court was permitting. Vol. XVIII at 98. Applicant then responded “yes” to the court’s
question as to whether he wished to testify. Id.
Finally, during the prosecution’s cross-examination, Applicant was asked about
his allegation that the victims “set him up” in retaliation for informing on a drug dealer.
Id. at 132-155. He further was asked about certain similarities, including (1) the age of
14

each of the three victims; (2) if the victims had been drinking and if he met each of them
at a bar; (3) if his truck was involved in each of the attacks; and (4) if each victim was
physically assaulted. Id. The trial court determined the questioning was admissible as
a matter of witness credibility based on the similarity of the other sexual assaults. Id. at
130-31.
Based on the above findings, the trial court did not waiver from the first ruling it
gave on the admissibility of similar transactions. Furthermore, Applicant was well
informed of the consequences of his testifying and had the option to object to the trial
court’s ruling on the scope of examination allotted to the prosecution, but he declined to
object. Also, the subject matter of the cross-examination was within the similarities
requirements. Applicant’s decision to testify and the cross-examination that took place
subsequent to his testifying, as set forth above, did not impair to an appreciable extent
any of the policies behind the rights involved. See McGautha, 402 U.S. at 213.
This Court, therefore, finds that the CCA decision regarding Applicant’s Fifth
Amendment right to remain silent or to testify did not result in a decision that was
contrary to, or involve an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States and did not result in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. Claim One lacks merit and will be
dismissed.

15

C. Claim Two
Applicant alleges seven separate claims of ineffective assistance of counsel in
Claim Two. It was clearly established when Applicant was convicted that a defendant
has a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S.
668 (1984). To establish that counsel was ineffective, Applicant must demonstrate both
that counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. See id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
There is a “strong presumption” that counsel’s performance falls within the range of
“reasonable professional assistance.” Id. It is an applicant’s burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id.
Under the prejudice prong, an applicant must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. In assessing prejudice under Strickland
the question is whether it is reasonably likely the result would have been different.
Richter, 131 S.Ct. at 791-92. “The likelihood of a different result must be substantial,
not just conceivable.” Id. (citing Strickland, 466 U.S. at 693.)
Furthermore, under AEDPA, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard,” which is the
question we would ask if the claim came to us “on direct review of a criminal conviction
16

in a United States district court.” Richter, 131 S. Ct. at 785. “When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
“whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id. at 788.
If Applicant fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claim must be dismissed. See id. at 697. Also, ineffective
assistance of counsel claims are mixed questions of law and fact. See id. at 698.
(a) Depose Detective Vince Berrera
Applicant asserts that trial counsel was ineffective in not deposing Detective
Vince Berrera. Applicant contends that Detective Berrera had exculpatory evidence
regarding the relationship between the three victims and the drug dealers against whom
Applicant acted as an informant. With respect to this claim, the CCA found as follows:
We reject defendant’s argument that his defense counsel was
ineffective because he failed to obtain information from a drug task force
regarding his alleged involvement as a confidential drug informant.
The record indicates that defense counsel requested and obtained
the information. Counsel also introduced evidence that the person
defendant identified as being the target of his work as an informant had
been convicted of a drug offense. And defendant does not specify what
additional information there may have been or how it could have altered
the result of his trial. See [State of Colo. v.] Mills, 163 P.3d [1129, 1133
(Colo. 2007)] (defendant must show there is a reasonable probability that,
but for counsel’s errors, the result would have been different); see also
[State of Colo. v. Zuniga], 80 P.3d [965, 973 (Colo. App. 2003)] (a trial
court may deny postconviction relief where the allegations of ineffective
assistance of counsel are merely conclusory, vague, or lacking in detail).
Accordingly, the trial court did not err in denying defendant’s motion
for postconviction relief on this basis.
Trujillo, No. 07CA1456 at 8-9.

17

“The duty to investigate derives from counsel’s basic function . . . to make the
adversarial testing process work in the particular case.” Williamson v. Ward, 110 F.3d
1508, 1514 (10th Cir. 1997) (internal quotation marks omitted). “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. (internal quotation marks omitted). “[S]trategic choices
made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
690-91.
Here, the CCA found trial counsel did request and obtain information and
introduce evidence that Applicant was an informant and as a result of his work at least
one of the drug dealers was convicted of a drug offense. Applicant contends that the
information trial counsel received regarding his actions as an informant was incomplete
and the important information was not provided, which included that (1) he showed
Detective Barrera the bars where the drug dealers hung-out; and (2) he made several
phone calls setting-up drug deals and purchased drugs while wearing a wire. Applicant
further asserts that Detective Barrera’s testimony would have included a list of the
names of individuals and how they were connected to one another for purposes of
showing a motive for setting him up. Traverse at 6.
Although Applicant contends that Detective Berrera had first-hand knowledge of
the connection of the three victims to the drug dealers and that the drug dealers had
motive to set him up, he does not state with any specificity what Detective Berrera’s
18

testimony would have been. Applicant does not demonstrate or provide evidence of
how the relationship between each of the victims and the individuals against whom he
informed was the motivating factor for the victims to undergo the injuries they incurred.
His only assertions, although not stated in the Application in this case but in an
attachment in his brief on appeal to the CCA, see Pre-Answer Resp. App. H at 33-34
[#16-8], are included in an overview he compiled that identifies the relationship of
individuals who are friends of or related to the drug dealers against whom he informed.
The overview is self-serving and attenuated with respect to how the three victims may
have been connected to the drug dealers. The relationships of the people listed in
Applicant’s overview does not establish that the victims were motivated to set him up.
As for the information that Applicant claims his counsel did not receive, including
his showing Detective Berrera the bars where the dealers frequented and his wearing a
wire when he purchased drugs from the dealers, nothing with respect to this information
demonstrates the victims were motivated to set him up.
Even if trial counsel was ineffective in not pursuing exculpatory evidence from
Detective Barrera, nothing Applicant asserts about trial counsel’s lack of investigation of
his alleged informant acts shows that but for counsel’s unprofessional errors, the result
of the proceeding would have been different. Applicant fails to present clear and
convincing evidence to rebut the presumption of correctness applied to the CCA’s
finding.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
claim did not result in a decision that was contrary to, or involve an unreasonable
19

application of, clearly established Federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart a, therefore, lacks merit and will be dismissed.
(b) Obtain Exculpatory DNA
Applicant asserts that trial counsel was ineffective in failing to hire a forensic
expert to obtain exculpatory DNA evidence from the seat of his truck and to prove that
one of the victims lied about the type of vehicle she was in when she allegedly was
raped. Applicant further contends that a forensic expert would have testified regarding
the petechia on one of the victim’s neck and the age of the injuries she incurred, which
would have resulted in proving that the victim lied to the police about being raped.
Furthermore, Applicant appears to argue that a forensic expert testifying on his behalf
could have dissuaded the jury that a sexual assault took place based on the finding that
one of the victim’s had no trauma to the vaginal area or anus that is consistent with
sexual assault. With respect to this claim, the CCA found as follows:
We also reject defendant’s argument that his defense counsel was
ineffective for failing to have a DNA test conducted on the seat of his
pickup truck.
Defendant claims that if the test had been conducted, it would have
shown that one victim’s DNA was present on the seat of his personal
truck. According to defendant, this would prove that they had consensual
sex and would refute her testimony that defendant was driving his
employer’s truck and that the rape occurred outside the truck.
However, such evidence would not prove that the sex was
consensual, nor would it necessarily disprove the victim’s allegations
regarding the rape. See [State of Colo. v.] Long, 126 P.3d [284, 286
(Colo. App. 2005)] (court may deny postconviction motion if defendant’s
factual allegations fail to state a constitutional claim for relief).
20

Further, defendant did not allege that he told his trial counsel prior
to trial that he and the victim had consensual sex in his personal vehicle or
that her DNA could be found there. See [State of Colo. v.] Rodriguez,
914 P.2d [230, 295 (Colo. 1996)] (defense counsel’s failure to investigate
or present mitigating evidence does not constitute ineffective assistance of
counsel when the essential and foundational information required to
trigger such an investigation is withheld from the defendant’s counsel by
the defendant himself).
Accordingly, the trial court did not err in denying defendant’s motion
for postconviction relief on this basis.
Trujillo, No. 07CA1456 at 6-7.
Applicant’s claim is speculative. Even if trial counsel had sought testimony by a
forensic expert and determined that one of the victim’s DNA was found in his personal
truck it does not demonstrate that the sex he had with that victim was consensual or
that she lied about the rape. Trial counsel, also, was able on cross-examination of the
prosecution’s emergency doctor to present to the jury that no vaginal trauma was found
on one of the victims. Vol. No. XIV at 21-22. With respect to the age of the injuries to
one of the victims, the issue is found to lack merit as discussed below under Subpart (f).
Even if trial counsel was ineffective in not pursuing a forensic expert to testify,
nothing Applicant asserts about trial counsel’s failure to do so shows that but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Applicant has failed to present clear and convincing evidence to rebut the presumption
of correctness applied to the CCA’s finding.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
claim did not result in a decision that was contrary to, or involve an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
21

the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart b, therefore, lacks merit and will be dismissed.
(c) Interview Prosecution Witnesses Regarding Criminal Histories
Applicant asserts that trial counsel failed to interview the prosecution’s witnesses
and obtain criminal histories, which could have been used to impeach the credibility of
these witnesses. Applicant contends that one of the victims had a felony conviction for
methamphetamine possession and all three of the victims are drug addicts, which
makes them less credible. With respect to this claim, the CCA found as follows:
We are also not persuaded by defendant’s argument that his
defense counsel was ineffective by failing to investigate defendant’s
claims and the prosecution witnesses’ criminal histories. . . .
With respect to defendant’s second assertion, his counsel
attempted to interview the prosecution’s witnesses before trial, and he
obtained the witnesses’ criminal histories from the prosecution.
Furthermore, because the jury was already aware of one of the victim’s
criminal record, defendant fails to show how the result of his trial would be
different if his counsel had done what defendant suggests. See Mills, 163
P.3d at 1133 (defendant must show there is a reasonable probability that,
but for counsel’s errors, the result would have been different).
Accordingly, the trial court did not err in denying defendant’s motion
for postconviction relief on this basis.
Trujillo, No. 07CA1456 at 11-12.
Applicant’s claims are speculative. He fails to assert what information would
have been available that trial counsel did not obtain through his investigation, which
would have supported a finding that each of the victims were criminals and drug addicts.
Trial counsel during the cross-examination of the three victims, in an attempt to
discredit their memories of what happened on the night of the assault, did question each
22

one extensively about their drinking habits and made clear that each one had
frequented several bars on the nights the sexual assaults took place and had several
alcoholic drinks. See Trial Tr. Vol. XII at 103-51, Trial Tr. Vol. XIII at 222-36, and Trial
Tr. Vol. XVI at 45-106.
Furthermore, during direct examination, the prosecution questioned one of the
victims regarding her felony conviction for possession of a controlled substance and
noted that she received three years probation for the offense. Trial Tr. Vol XIII at 157.
Also, during direct examination the same victim stated that she had a DUI in 1990 and
that she did a line of cocaine with Applicant on the night that he assaulted her. Id. at
142 and 157. Other than the felony conviction and the DUI admitted by one of the
victims, Applicant fails to provide any evidence supporting his conclusory statement that
each of the victims were drug addicts or convicted criminals.
Nonetheless, the overwhelming evidence of the injuries to each of the women
and the other witnesses’ statements who saw the victims after the attacks made it
unbelievable that each of these women would go to such extremes to set up Applicant.
Nothing Applicant asserts about trial counsel’s failure to interview the
prosecution’s witnesses and to obtain criminal histories shows that but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Applicant fails to present clear and convincing evidence to rebut the presumption of
correctness applied to the CCA’s finding.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
claim did not result in a decision that was contrary to, or involve an unreasonable
23

application of, clearly established Federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart c, therefore, lacks merit and will be dismissed.
(f) Object to Prosecution’s Pretrial Motion
Applicant asserts that trial counsel was ineffective in conceding to a pretrial
motion by the prosecution that precluded evidence of a stab wound incurred by one of
the victims separate from and prior to the Applicant’s alleged assault on the victim.
Applicant contends that because trial counsel conceded to this motion only the stab
wound was precluded and any other injuries incurred by the victim when she was
stabbed were attributed to his assault. Applicant further contends that trial counsel
should have hired a medical expert to confirm that not only the stab wound but also
other injuries incurred by that victim happened days before his alleged assault.
Applicant concludes that had a medical expert testified regarding the injuries the jury
would have known that the victim was lying and that Applicant did not brutally and
sexually attack her. With respect to this claim, the CCA found as follows:
We reject defendant’s argument that his defense counsel was
ineffective because he confessed four of the prosecution’s pretrial
motions.
As an initial matter, we note that in his postconviction motion,
defendant only raised the issue of his trial counsel’s ineffective assistance
with respect to one pretrial motion: the prosecution’s motion in limine to
preclude evidence that a victim had been stabbed in a fight a few days
before her encounter with defendant. Therefore, we will only address
defendant’s claim with respect to that particular motion. See People v.
Blankenship, 119 P.3d 552,557 (Colo. App. 2005) (declining to consider
issues not raised in postconviction motion).

24

Defendant has failed to show how his trial counsel’s confession of
the pretrial motion regarding the stabbing states a constitutional claim for
relief. The victim’s prior stabbing was not attributed to defendant, and
defendant has failed to show how the evidence is relevant to whether he
raped that victim.
Accordingly, the trial court did not err in denying defendant’s
motion for postconviction relief on this basis. See Long, 126 P.3d at 286
(court may deny postconviction motion if defendant’s factual allegations
fail to state a constitutional claim for relief).
Trujillo, No. 07CA1456 at 7-8.
Applicant’s prior injuries claim also is speculative. Applicant does not
demonstrate or provide any evidence as to what other injuries the victim incurred at the
time she was stabbed that still would have been apparent at the time she was
assaulted. Furthermore, in the motion in limine filed by the prosecution to establish the
stab wound as nonrelevant and inadmissible evidence, the prosecution established that
the stabbing took place not just days prior but one to two weeks before the assault by
Applicant. See Trujillo, No. 00CR2531, State Court Flat File at 178-79. Moreover, the
emergency room doctor who examined the victim the night of the assault attributed to
Applicant testified regarding several of the victim’s injuries. Trial Tr. Vol. XIV at 4-18.
The testimony indicated the injuries he treated were contusions, redness on her cheek,
scratches on her back, a small cut on her right elbow, a two-by-four inch abrasion on
her left forearm, and soft-tissue injuries along the side her neck. Id. at 10-13. The
doctor also stated that she had muscle tremors and appeared to be frightened, anxious,
and tearful. Id. at 9-10 and 14. The sex-assault examining nurse testified that she felt a
bump on the back of the victim’s head. Id. at 147-48.

25

Applicant fails to submit any evidence that would support a finding that a medical
expert testifying on his behalf could have identified any of the above described injuries
as occurring prior to the assault by Applicant. Nothing Applicant asserts about trial
counsel’s failure to object to the prosecution’s pretrial motion regarding the stabbing of
one of the victim’s prior to the assault shows that but for counsel’s unprofessional
errors, the result of the proceeding would have been different. Applicant fails to present
clear and convincing evidence to rebut the presumption of correctness applied to the
CCA’s finding.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
claim did not result in a decision that was contrary to, or involve an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart f, therefore, lacks merit and will be dismissed.
(h) Make a Closing Argument
Applicant asserts that trial counsel failed to make a closing argument and identify
all the contradictions and inconsistencies in the prosecution’s case. He further
contends that he was prejudiced because of trial counsel’s silence. With respect to this
claim, the CCA found as follows:
We also reject defendant’s argument that his defense counsel was
ineffective because he failed to make a closing argument.
Defendant has cited no authority, nor have we found any, indicating
that defense counsel’s decision not to make a closing argument, without
26

more, constitutes ineffective assistance of counsel. Cf. Fox v. Ward, 200
F.3d 1286, 1296 (10th Cir. 2000) (“it is well-settled that the decision to
waive an opening or closing statement is a commonly adopted strategy,
and without more, does not constitute ineffective assistance of counsel”).
Further, considering the overwhelming evidence supporting
defendant’s convictions, defendant has not shown how his counsel’s
decision to waive closing argument altered the result. See Mills, 163 P.3d
at 1133 (defendant must show there is a reasonable probability that, but
for counsel’s errors, the result would have been different). He merely
asserts that his counsel could have used the closing argument to point out
“holes” in the prosecution’s case; but defendant fails to indentify [sic] any
of the alleged holes. See Zuniga, 80 P.3d at 973 (conclusory allegations
not sufficient).
Accordingly, the trial court did not err in denying defendant’s motion
for postconviction relief on this basis.
Trujillo, No. 07CA1456 at 10-11.
“[I]t is well-settled that the decision to waive an opening or closing statement is a
commonly adopted strategy, and without more, does not constitute ineffective
assistance of counsel.” See Fox, 200 F.3d at 1296 (citing Nguyen v. Reynolds, 131
F.3d 1340, 1350 (10th Cir. 1997); see also United States v. Haddock, 12 F.3d 950,
955 (10th Cir. 1993) (“failure to present an opening statement itself is not ineffective
assistance”); United States v. Miller, 907 F.2d 994, 1000 (10th Cir. 1990)). Although
Applicant did not identify in the § 2254 Application what specific contradictions or
inconsistent statements trial counsel should have countered in a closing argument,
Applicant attached to his opening brief on appeal to the CCA a list of contradictions and
inconsistent statements that he had compiled and identified as issues trial counsel
should have addressed in a closing argument. See Pre-Answer Resp. App. H at 36-37
[#16-8].

27

On review of the list, which includes eighteen alleged contradictory statements
made during trial, I find nothing that shows but for counsel’s unprofessional errors the
result of the proceeding would have been different. Applicant’s argument that had trial
counsel presented these inconsistencies a reasonable doubt would have been created
in the jurors’ minds is an overstatement of the effect such a closing statement would
have had on the jurors. Again, as stated above, the testimony by the victims and
witnesses who encountered each of the victims after the assault was overwhelming
evidence against Applicant. Furthermore, each of the pieces of evidence or testimony
Applicant identifies on the list was presented on direct examination and addressed by
trial counsel on cross-examination. Nothing presented by Applicant indicates that trial
counsel’s strategy to not present a closing argument was ineffective. Applicant has
failed to present clear and convincing evidence to rebut the presumption of correctness
applied to the CCA’s finding.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
claim did not result in a decision that was contrary to, or involve an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart h, therefore, lacks merit and will be dismissed.

28

(i) Object to “All-White,” Predominate Female Jury
Applicant asserts that trial counsel’s failure to object to the all-white jury of two
men and twelve women was improper conduct. Applicant also contends that women
are more biased in a sexual assault case and that he is entitled to a jury of his own
peers or fellows. He further asserts that the jury selection was a Batson violation. With
respect to this claim, the CCA found as follows:
Defendant, who is Hispanic, also argues that his defense counsel
was ineffective because he failed to object to the composition of the jury,
which did not include any non-white members and included only two men.
We are not persuaded.
Defendant provides no authority to support his assertion that
women are per se biased against a defendant when a woman is the victim
in the case. Nor does defendant claim that non-whites were
systematically excluded from the pool.
Thus, because defendant failed to allege specific facts showing that
his counsel’s performance was deficient with respect to the jury selection,
the trial court did not err in denying defendant’s motion for postconviction
relief on this basis. See Zuniga, 80 P.3d at 973 (a trial court may deny
postconviction relief where the allegations of ineffective assistance of
counsel are merely conclusory, vague, or lacking in detail).
Trujillo, No. 07CA1456 at 9-10.
Applicant’s jury claim is conclusory and vague and without basis. Although
Applicant did not specifically raise a Batson claim in his Rule 35(c) opening brief on
appeal, he did assert a Sixth Amendment violation of his right to a verdict by impartial
and indifferent jurors. However, even if Applicant intended to raise a Batson claim in
his Rule 35(c) postconviction motion, Batson violations occur when a prosecutor uses
his peremptory challenges purposefully to discriminate against a racial group. See

29

Batson v. Kentucky, 476 U.S. 79, 89 (1986). Applicant does not claim this happened
in the jury selection in his criminal proceeding.
His only claims are that there are enough minorities living in Jefferson County to
assemble a racially and gender balanced jury and that he was prejudiced by the twelve
white women that served on the jury. The racial composition of a jury alone, however,
does not demonstrate a cognizable constitutional claim. See Battle v. Workman, 353
F. App’x 105, 109 (10th Cir. 2009) (unpublished). Applicant’s jury composition claim,
therefore, is meritless. See id. at 109.
Based on the above findings, Applicant fails to present clear and convincing
evidence to rebut the presumption of correctness applied to the CCA’s finding. There is
a reasonable argument for finding that counsel satisfied the Strickland deferential
standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this claim did
not result in a decision that was contrary to, or involve an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart i, therefore, lacks merit and will be dismissed.
(j) Call Two Rebuttal Witnesses to Testify
Applicant asserts that trial counsel failed to call two witnesses to testify that he
did not have scratches on the side of his face, in rebuttal to the prosecution witnesses
who claimed he did have scratches on his face on August 3, 2000, several days after
one of the sexual assaults. With respect to this claim, the CCA found as follows:

30

Defendant argues that his counsel should have introduced
testimony of certain police officers, as well as a police report that was
made when police contacted defendant regarding a report of possible
domestic violence. According to defendant, this evidence would have
shown that three prosecution witnesses were wrong when they testified
that he had scratches on his face and body shortly following one of the
assaults.
However, defendant has not specified who the police officers are,
whether they are amenable to process, and whether they would in fact
testify that he had no injuries at the relevant time. See People v.
Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (defendant claiming
ineffective assistance of counsel because of the failure to call certain
witnesses must show who the witnesses might be, their willingness to
testify or their amenability to process, and the substance, credibility, and
admissibility of their testimony).
Even if defendant’s trial counsel could have introduced such
evidence, defendant’s allegations fail to show how, but for the inaction, the
result would have been different. See Mills, 163 P.3d at 1133 (defendant
must show there is a reasonable probability that, but for counsel’s errors,
the result would have been different). To the contrary, defense counsel
secured the testimony of two witnesses who stated that defendant had no
visible injuries during the time in question.
Accordingly, the trial court did not err in denying defendant’s motion
for postconviction relief on this basis.
Trujillo, No. 07CA1456 at 4-6.
Applicant fails to present clear and convincing evidence to rebut the presumption
of correctness applied to the CCA’s finding. Even though Applicant now has identified
the rebuttal witnesses, he still fails to state their willingness to testify or their amenability
to process, and the substance, credibility, and admissibility of their testimony.
Furthermore, as found by the CCA, trial counsel presented two witnesses who did
testify that Applicant did not have scratches on his face at the time in question.
There is a reasonable argument for finding that counsel satisfied the Strickland
deferential standard. See Richter, 131 S. Ct. at 788. The CCA decision regarding this
31

claim did not result in a decision that was contrary to, or involve an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Claim Two, Subpart j, therefore, lacks merit and will be dismissed.
III. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the pro se Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 [#8 ] filed on September 14, 2009, by Applicant John Gerald Trujillo is
DENIED;
2. That this case is DISMISSED WITH PREJUDICE; and
3. That there is no basis on which to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c).
4. That the Motion to Hold Respondents in Contempt of Court for Failure to
Comply with a Court Order [#37] is DENIED as moot.
Dated June 17, 2011, at Denver, Colorado.
BY THE COURT:

32