Lamar v. Jones et al

Filing 33

Opinion on Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2254. The Petition for Writ of Habeas Corpus (including # 1 and # 12 ) is DENIED. The Motion and Affidavit in Support of Summary Judgment on Habeas Claim Two Fed.R. Civ. P. 56, ECF # 27 , and the Motion to Obtain Response to Motion for Summary Judgment on Claim Two Pursuant to D.C.COLO.L.Civ.R. 56.1, ECF # 29 , are DENIED as moot. By Chief Judge Marcia S. Krieger on 5/13/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-01028-MSK
ANDREW MARK LAMAR,
Petitioner,
v.
ARISTEDES W. ZAVARAS, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

OPINION ON PETITION FOR A WRIT OF HABEAS CORPUS PURSUANT TO
28 U.S.C. § 2254

This matter comes before the Court pursuant to Mr. Lamar’s (Petitioner’s) Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (#1).1 Respondents filed an Answer (#22).
Petitioner filed a Traverse (#23). Petitioner also filed a Motion for Summary Judgment (#27) on
October 19, 2012. Having considered the same, along with pertinent portions of the state court
trial record (#21), the Court
FINDS and CONCLUDES that:
I. Jurisdiction
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 2254 and 1331.

1

Because Petitioner appears pro se, the Court construes his filings liberally. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972). However, the Court does not serve as his advocate. See Hall v.
Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991).

II. Background2
In 2005, Petitioner was charged with sexual assault in violation of Colo. Rev. Stat. § 183-402(1)(a). Petitioner’s trial ended in a mistrial when the jury was unable to reach a verdict.
Prior to his second trial, Petitioner, against the advice of his attorney, moved to change his plea
to one of not guilty by reason of insanity (NGRI). The trial court ordered a competency
evaluation. Based on the results of the evaluation, the court found Petitioner competent.
Petitioner sought to proceed pro se. At the July 26, 2006 hearing, the trial court gave Petitioner
an Arguello advisement. Based on the advisement, and Petitioner’s responses to the court’s
questions, the court found the waiver of his right to counsel to be knowing and intelligent and
allowed him to proceed pro se. The court also granted Petitioner’s request for a psychological
examination to assist in his decision to assert a mental health defense.
In August 2006, Petitioner expressed concern to the trial court about his decision to
proceed pro se. The court entered an order indicating that if Petitioner wished to revoke his
waiver of counsel the court would consider the possibility of reappointing prior counsel. A
hearing was held on September 21, 2006, the court found Petitioner no longer desired to proceed
pro se and appointed new counsel finding irreconcilable conflict with Petitioner’s previous
counsel. The court noted that if a future conflict arose with new counsel and Petitioner seeks to
discharge new counsel the court would presume Petitioner was implicitly waiving his right to
counsel and manipulating the system.

2

The background is taken from the statement of the case in Petitioner’s opening brief on direct
appeal and the Colorado Court of Appeals’ (CCA’s) opinion. People v. Lamar, No. 07CA0985 (Colo.
App. Sept. 24, 2009) (unpublished); Pre-Answer Resp., App. A (#11-1) at 9. For ease of reference, the
page numbers referred to in citations to documents filed in this case are the page numbers identified by
the Court’s Electronic Court Filing system.

2

On November 22, 2006, Petitioner moved to proceed pro se. A hearing was held on
December 8, 2006, where the court took judicial notice of Petitioner’s written and oral Arguello
advisements given on July 26, 2006, found that Petitioner knowingly and intelligently waived his
right to counsel, and granted his second motion to proceed pro se. At a subsequent hearing on
January 24, 2007, Petitioner and the court discussed Petitioner’s mental issues, but Petitioner did
not assert an affirmative defense of mental defect or request to change his plea to NGRI.
Finally, two months prior to trial at a hearing held on February 16, 2007, Petitioner
moved for a continuance of his trial, which the court denied. Petitioner then sought leave to
enter an NGRI plea, which the court denied finding lack of good cause to assert the plea at that
late date. The court further found that Petitioner’s change of plea request was made in response
to the court’s denial of a continuance and was interposed for the purpose of delay. Petitioner
then filed a motion to assert an affirmative defense of impaired mental condition. The court
denied this motion finding lack of good cause and untimely assertion.
Petitioner’s second trial resulted in a conviction for sexual assault and an indeterminate
sentence of thirty-five years to life. On September 24, 2009, the CCA affirmed Petitioner’s
convictions but remanded the case for resentencing based on Vensor v. People, 151 P.3d 1274,
1275 (Colo. 2007). See People v. Lamar, No. 07CA0985 (Sept. 24, 2009). Petitioner filed a
petition for rehearing that was denied. Pre-Answer Resp., ECF #11-11, at App. K. He also filed
a petition for certiorari review that was denied on February 8, 2010. Id. at ECF #11-13, App. M.
On May 5, 2010, the trial court resentenced Petitioner to a term of twelve years to life in the
Colorado Department of Corrections. Id., at ECF #11-15, App. O.

3

Petitioner commenced this action on April 18, 2011, and filed an Amended Petition on
July 21, 2011. Petitioner asserted the following four claims.
1) The trial court refused to allow an untimely NGRI plea, which impaired his
ability to assert a defense violating his Fourteenth Amendment right to due
process;
2) The trial court failed to make a searching inquiry
to ascertain whether he knowingly, intelligently, and voluntarily
decided to represent himself;
3) The trial court abused its discretion when it granted his motion
to proceed pro se thus violating his Sixth Amendment right to
conflict-free counsel; and
4) The trial court abused its discretion when it denied his request for
reassignment of counsel thus violating his Sixth Amendment right
to counsel.
Respondents conceded in their Pre-Answer Response that the Petition is timely and
Claims One and Two are exhausted but argued that Claims Three and Four are procedurally
defaulted. In his Reply to the Pre-Answer, ECF #16, Petitioner requested that the Court either
dismiss Claims Three and Four or in the alternative grant him a stay and abeyance pending
exhaustion of state court remedies. The Court elected to dismiss Claims Three and Four.
Respondents now assert in the Answer that they inadvertently overlooked a ruling by the
CCA that applied a procedural bar to the constitutional assertions in Claim One. They argue that
Claim One should be denied because the CCA found Petitioner’s due process and right to
present a defense claims were procedurally defaulted. Respondents further contend that this
Court may sua sponte raise procedural default issues when the default is obvious from the face
of the petition.

4

“[S]tate-court procedural default . . . is an affirmative defense,” and the state is “obligated
to raise procedural default as a defense or lose the right to assert the defense thereafter.” See
Gray v. Netherland, 518 U.S. 152, 165-66 (1996). In the Order to File Pre-Answer Response,
the Court instructed Respondents to address the affirmative defense of exhaustion of state court
remedies. The Court also directed Respondents that if they did not intend to raise exhaustion as
an affirmative defense they must notify the Court.
The “best procedure is to plead an affirmative defense in an answer or amended answer.”
See Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006) (finding defendants were not
necessarily barred from raising a qualified immunity defense in their motion for summary
judgment). A constructive amendment is allowed if there is no prejudice to the opposing party
and the amendment is not unduly delayed, done in bad faith or with a dilatory motive. Id. Here,
Respondents’ procedural default claim clearly was presented in the Answer, and Petitioner had
sufficient time to address the affirmative defense in his Reply to the Answer. There is no
evidence of prejudice to Petitioner or of undue delay, bad faith, or dilatory motive by
Respondents. Respondents, therefore, are not barred from raising the exhaustion affirmative
defense in their Answer with respect to Claim One.
III. Legal Standard
In the course of reviewing state criminal convictions in federal habeas corpus
proceedings, a federal court does not sit as a super-state appellate court. See Estelle v. McGuire,
502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “When a federal district
court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 . . . [it] does not

5

review a judgment, but the lawfulness of the petitioner's custody simpliciter.” Coleman v.
Thompson, 501 U.S. 722, 730 (1991) (internal quotations and citations omitted).
Because the Petition was filed after April 24, 1996, the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), it is governed by those provisions. Cannon
v. Mullin, 383 F.3d 1152, 1158 (10th Cir. 2004) (citing Rogers v. Gibson, 173 F.3d 1278, 1282
n.1 (10th Cir. 1999)). Under the AEDPA, a district court may only consider a habeas petition
when the petitioner argues that he is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a).
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:
(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).
Claims of legal error and mixed questions of law and fact are reviewed 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 Petitioner 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,
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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 the Court's inquiry
pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is
implicated, the Court 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 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.
The Court’s 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

7

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 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
8

comprehended in existing law beyond any possibility for
fairminded disagreement.
Richter, 131 S. Ct. at 786-87.
Claims of factual error are reviewed 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), the Court
must presume that the state court's factual determinations are correct and Petitioner bears the
burden of rebutting the presumption by clear and convincing evidence. “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 petitioner’s burden still must be met by showing there was no reasonable basis for the
state court to deny relief.” Id. at 784.

9

In other words, the Court “owe[s] 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, the Court “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. “[T]his
‘independent review’ should be distinguished from a full de novo review of the petitioner’s
claims.” Id. Likewise, the Court applies 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 petitioner 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, the Court 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).
IV. Analysis
1. Claim One
In his first claim, Petitioner asserts that the trial court denied him the opportunity to
present an NGRI defense in violation of his federal due process rights. Petitioner contends that
subsequent to his mistrial he attempted to obtain a psychological assessment on six separate
occasions to assist in formulating an NGRI plea, but the court either referred the issue to counsel
or rejected the plea and instead, over Petitioner’s objections, ordered a competency evaluation.
Pet. at 6.
A. Procedural Default

10

As stated above, Respondents contend that this claim is procedurally defaulted because
the CCA declined to address any of Petitioner’s constitutional claims, which were raised for the
first time on appeal.
The Court has reviewed the CCA’s opinion and with close scrutiny the hearing
transcripts and the many motions Petitioner filed during the second trial proceeding. In
addressing Petitioner’s NGRI and impaired mental condition pleas, the CCA found as follows:
II. NGRI and Impaired Mental Condition Pleas
Defendant first argues that the trial court abused its discretion by denying
his February 2007 requests to plead NGRI and the affirmative defense of
impaired mental condition, based on the court’s finding of a lack of good cause.
We perceive no abuse of discretion.
Under [§] 16-8-103(1.5)(a), C.R.S. 2009, “[t]he defense of insanity may
only be raised by a specific plea entered at the time of arraignment; except that
the court, for good cause shown, may permit the plea to be entered at any time
prior to trial.” Because insanity, by definition, now includes what was previously
known as “impaired mental condition,” § 16-8-101.5, C.R.S. 2009, the timing and
good cause requirements apply both to the NGRI and to the affirmative defense of
impaired mental condition that defendant sought to assert.
“[G]ood cause is shown when it is demonstrated that fairness and justice
are best subserved by permitting the additional plea. [This standard] is satisfied if
the petitioner established that the plea was not entered at the time of arraignment
due to ‘mistake, ignorance, or inadvertance.” Ellis v. District Court, 189 Colo.
123, 125, 538 P.2d 107, 108 (1975) (citations omitted).
Here, as noted above, the trial court concluded that defendant failed to
establish good cause to support his belated requests to enter pleas of NGRI and
impaired mental condition, finding that defendant’s requests were interposed for
the purpose of delay. The facts set forth above amply support these findings. In
particular, defendant had previously raised the issue of an NGRI plea many
months before and clarified that he did not desire to enter such a plea. He
likewise raised the possibility of an “impaired mental condition” defense for
many months. It was not until the trial court denied the last of a number of
requested continuances, this one as defendant’s second trial approached, that
defendant again raised these issues. In these circumstances, we perceive no abuse

11

of discretion in the trial court’s refusal to allow defendant to change his plea to
NGRI or to assert an affirmative defense of impaired mental condition.
Lamar, No. 07CA0985 at 7-9. The CCA also found that
[i]n addition, defendant raised a myriad of constitutional claims
throughout his opening and reply briefs. Defendant never raised these claims in
the trial court, and he presents them on appeal in conclusory fashion with neither
factual nor legal support. Accordingly, we will not consider them here. HinojosMendoza v. People, 169 P.3d 662, 667 (Colo. 2007) (generally, a reviewing court
will not consider constitutional issues raised for the first time on appeal); People
v. Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990) (refusing to consider issues
raised for the first time in the defendant’s reply brief); People v. Deifenderfer,
784 P.2d 741, 752 (Colo. 1989) (counsel for appealing party has a duty to inform
the court of the specific errors relied on and the grounds, supporting facts, and
authorities therefor).
Id. at 18-19.
The Court further notes the CCA’s reference to a “myriad of constitutional claims” does
not identify each of the claims that the CCA refused to address.
A review of Petitioner’s notice of intent to assert a impaired mental condition defense,
filed with the trial court on March 1, 2007, includes a due process argument based on
Hendershott v. People, 653 P.2d 385 (Colo. 1982), that he has a right to present reliable and
relevant evidence of a mental condition to contest the mental culpability requirement. People v.
Lamar, 05CR467, CD Lamar File at 416. In the opening brief before the CCA, Petitioner again
asserted a right to present relevant and competent evidence as a defense to a criminal charge
based on Hendershott. Pet., ECF #11-1, at 35. Petitioner contended that the prohibition of an
NGRI plea potentially withheld relevant evidence from the jury and as a result the prosecution
did not have to meet the required burden of proof. Id.
A fair presentation of claims need not “invoke talismanic language,” Nichols v. Sullivan,
867 F.2d 1250, 1252 (10th Cir.1989), or “cite ‘book and verse on the federal constitution,’ ” but
12

it must raise the “ ‘substance’ of the federal claim in state court,” Bland v. Sirmons, 459 F.3d
999, 1011 (10th Cir. 2006) (quoting Picard v. Connor, 404 U.S. 270, 278 (1971)). In other
words, state courts must be “alerted to the fact that the prisoner[ ][is] asserting claims under the
United States Constitution. Duncan v. Henry, 513 U.S. 364, 365-66 (1995).
As stated above, Petitioner relied on Hendershott for his claim that he has a right to
present reliable and relevant evidence of a mental condition to contest the mental culpability
requirement. In Hendershott, the Colorado Supreme Court found that the trial court’s exclusion
of mental impairment evidence was an error of a federal constitutional dimension. Id.
There is sufficient evidence for finding Petitioner exhausted his due process argument in
Claim One with respect to his NGRI defense claim. It also is clear that the CCA did not address
this claim in their opinion disposing of Petitioner’s direct appeal. Because Claim One was not
adjudicated on the merits in state court, and the claim also is not procedurally barred, the Court
will review the claim de novo and the deferential standards of § 2254(d) do not apply. Gipson,
376 F.3d at 1196.
B. Merits
It is well-settled that a defendant has a due process right not to be tried while
incompetent. Drope v. Missouri, 420 U.S. 162, 171–72 (1975); Pate v. Robinson, 383 U.S. 375,
385 (1966). A defendant is competent to stand trial when he has a “sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding” and he possesses a
“rational as well as factual understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402 (1960). The Supreme Court has identified several factors to be considered
when assessing a defendant’s competency to stand trial, including attorney representations, prior

13

medical opinions regarding the defendant’s mental competence to stand trial, evidence of the
defendant’s prior irrational behavior, and the defendant’s demeanor at trial. Drope, 420 U.S. at
177 n.13, 180. However, “[e]ven when a defendant is competent at the commencement of his
trial, a trial court must always be alert to circumstances suggesting a change” in his competency.
Id. at 181. Consequently, in order to satisfy the requirements of due process, a trial court must
sua sponte conduct a competency hearing when there is a reason to doubt the defendant’s
competency and the evidence is sufficient to put the trial court on notice of a potential
competency problem. Pate, 383 U.S. at 385.
Petitioner does not disagree that prior to the onset of the second trial the court ordered a
competence evaluation when he first sought an NGRI plea against the advice of his attorney.
Petitioner also does not challenge the evaluation results that he is competent. See July 18, 2006
Hr’g (CD Lamar Tr., #9). The Court has reviewed all hearing transcripts and read with great
scrutiny Petitioner’s statements made during these hearings. Nothing demonstrates the
competence finding was incorrect. In fact, Petitioner conceded that competence was not an issue
on February 22, 2007, when the district court heard argument on Petitioner’s motion to enter an
untimely NGRI plea. See Feb. 22, 2007 Hr’g (CD Lamar Tr., #22 at 4). The trial court also
found that Petitioner was able to proceed pro se, even though Petitioner sought reappointment of
counsel at a later time. See July 26, 2012 Hr’g (CD Lamar Tr., #26 at 43). The Court,
therefore, finds Petitioner was competent during all pretrial proceedings and now will review the
merits of Petitioner’s NGRI claim.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . ,
the Constitution guarantees criminal defendants a meaningful opportunity to present a complete

14

defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal quotation marks omitted).
“The right of an accused in a criminal trial to due process is, in essence, the right to a fair
opportunity to defend against the State’s accusations.” Chambers v. Mississippi, 410 U.S. 284,
294 (1973).
A competent defendant has the “ultimate authority to make certain fundamental decisions
regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal.” Jones v. Barnes, 463 U.S. 745, 751 (1983). Frendak v. United States, 408 A.2d
364 (D.C. Ct. App. 1979) (Philosophy of North Carolina v. Alford, 400 U.S. 25 (1970), and
Faretta v. California, 422 U.S. 806 (1975), supports finding an insanity defense as a
fundamental decision.) Because these rights are constitutionally guaranteed personal rights of
the defendant, they can only be waived by the defendant in a knowing and voluntary manner. In
contrast, deciding what arguments to pursue and the defenses to develop are viewed as tactical
and strategic issues which defense counsel has the ultimate authority to decide. Wainwright v.
Sykes, 433 U.S. 72, 93 & n.1 (1977) (Burger, C.J., concurring).
The trial court recognized Petitioner had a fundamental right to decide whether to enter
an NGRI plea. See July 26, 2006 Hr’g (CD Lamar Tr., #26 at 37). The United States Supreme
Court, however, has not said that the Constitution requires the States to recognize the insanity
defense. See Medina v. California, 505 U.S. 437, 449 (1992) (citing Powell v. Texas, 392 U.S.
514, 536-37 (1968). The Court, nonetheless, reviews Petitioner’s claim based on the state
court’s determination that he had a fundamental right to decide whether to enter an NGRI
defense.

15

Throughout the first and second trial, Petitioner contended he had a history of mental
health issues, including delusional paranoia, bi-polar disorder, schizophrenia, and excessive
compulsive issues. CD Lamar File at 240-41; Oct. 12, 2005 Hr’g (CD Lamar Tr., #29 at 13 and
40). Petitioner’s attorney in his first trial agreed that Petitioner had mental health issues based
on interactions with Petitioner and records from previous criminal proceedings. Id. at #29.
Petitioner, however, did not seek an NGRI plea in his first trial, Nov. 9, 2005 Hr’g (CD Lamar
Tr., #27), and prior to the first trial commencing, the trial court determined that the disagreement
between Petitioner and his counsel was due to a strategy issue, that Petitioner was competent,
and there was not an irreconcilable conflict between Petitioner and counsel. Id.
After the first trial ended without a unanimous verdict, a new trial was set for January 17,
2006. The trial was continued for ninety days when Petitioner alleged an irreconcilable conflict
with counsel and new counsel was appointed. Jan. 9, 2006 Hr’g (CD Lamar Tr., #23). Just prior
to the April 25, 2006 hearing, and without counsel’s knowledge, Petitioner submitted a request
for a psychological evaluation. See Apr. 25, 2006 Hr’g (CD Lamar Tr., #4). At a hearing on
May 8, Petitioner announced his desire to enter an NGRI plea, contrary to counsel’s advice,
which prompted the trial court to schedule a competence evaluation. See May 8, 2006 Hr’g (CD
Lamar Tr., #5). Petitioner again requested that his counsel withdraw, but the trial court would
not rule on the request until the competence evaluation was complete. Id.
Once Petitioner was deemed competent, the trial court addressed the removal of counsel
request and the NGRI plea. The trial court found no reason for removal of counsel and
appointment of new counsel based only on a disagreement between counsel and Petitioner as to
whether a NGRI plea should be entered. See July 18, 2006 Hr’g (CD Lamar Tr., #9). However,

16

when the trial court asked Petitioner if he wanted to proceed with an NGRI plea, he refused to do
so and explained he would not enter the plea because his request for removal of counsel and
appointment of new counsel was denied. Id. The trial court gave Petitioner written copies of the
advisements the court used for defendants who chose to enter an NGRI plea or proceed pro se in
order to allow the Petitioner an opportunity to review the advisements before the next scheduled
hearing. Id. At the July 26, 2006 hearing, the court gave a complete oral advisement to the
Petitioner regarding self-representation. The Petitioner then stated that he needed to proceed pro
se because there are issues that neither his first nor second counsel would explore. See July 26,
2006 Hr’g (CD Lamar Tr., #26). The court granted Petitioner leave to proceed pro se.
It is clear from the hearing transcript Petitioner understood that even if he entered an
NGRI plea, he could still decide to proceed with a different defense after an evaluation was
conducted. Id. Petitioner chose not to enter the NGRI plea but instead requested a confidential
psychological evaluation to assist him with his defense. Id. Petitioner further was informed that
the evaluation would not remain confidential if he sought to use the results of the evaluation to
support a mental health defense. Id. The court also instructed Petitioner that regardless of
whether he decided to proceed with the NGRI plea or a mental health defense a court-funded
evaluation then would be obtained. Id.
At the September 5, 2006 hearing, Petitioner indicated some remorse for his decision to
proceed pro se. See Sept. 5, 2006 Hr’g (CD Lamar Tr., #10). He apologized for his lack of a
“reciprocal” relationship with the second appointed counsel. Id. at 21. The trial court assisted
Petitioner in obtaining requested transcripts and files and advised him to have advisory counsel.

17

Id. The trial court explained to Petitioner that legal issues are complex, attorneys are the experts,
and trying to coordinate discovery efforts from the jail is difficult. Id. The Petitioner agreed. Id.
Subsequently, the trial court revisited the irreconcilable conflict issue and determined
that an in camera hearing should be conducted by another judge. See Sept. 21, 2006 Hr’g (CD
Lamar Tr., #11). As a result, Petitioner’s pro se status was withdrawn, a irreconcilable conflict
was found between Petitioner and his second attorney, and a new alternate defense counsel was
appointed. See CD Lamar File at 296-97. The judge who conducted the in camera hearing
found that, although Petitioner did not waive counsel previously and was not trying to
manipulate the system at this time, if a future conflict arose with the newly appointed counsel,
and Petitioner sought to discharge the counsel, there would be a presumption of waiver of
counsel and a finding of manipulating the system. Id.
Petitioner’s third counsel entered his appearance at the October 12, 2006 hearing, see
Oct. 12, 2006 Hr’g (CD Lamar Tr., #13). At the November 15, 2006 hearing, a new trial date
was set following Petitioner’s waiver of speedy trial rights. see Nov. 15, 2006 Hr’g (CD Lamar
Tr., #14). Within the first month of his third counsel’s appointment, Petitioner again requested
that his counsel withdraw and that he be allowed to proceed pro se. See Dec. 8, 2006 Hr’g (CD
Lamar Tr., #16). The trial court granted the Petitioner’s request after discussing the possibility
of advisory counsel and other issues concerning Petitioner’s ability to proceed on his own.
Advisory counsel was appointed by the trial court at a motions hearing held on January
24, 2007 hearing. See Jan. 24, 2007 Hr’g (CD Lamar Tr., #1). Similar to what took place during
each prior hearing, the court reviewed specifically all requests by Petitioner and made a list of
outstanding discovery and transcript issues for Petitioner. Id. Petitioner requested transcripts of

18

different proceedings that the court determined did not relate to the trial. Id. The court stated
that the transcripts would be provided, but also indicated that no delay in the trial was necessary.
Id. Petitioner also was instructed that this hearing was set to determine any pre-motion issues
and any new motions filed would have to demonstrate why they could not have been filed
earlier. Id. at 19-20.
At this hearing, Petitioner stated that he intended to file a motion to reinstate his third
appointed counsel. Id. Petitioner contended that the removal of counsel was the court’s fault for
not inquiring into the reason for the conflict with counsel and as a result his right to a speedy
trial was violated. Id. Petitioner further indicated that he intended to challenge the trial court’s
previous statement that pro se litigants usually lose at trial. Id. at 9. Finally, Petitioner indicated
that he may explore an affirmative defense of mental defect, but although his third appointed
counsel terminated the confidential psychological evaluation he was not asking the court to order
a new evaluation. Id. at 28.
Before the February 16 hearing, the Petitioner filed several letters (one, written only 5
days after advisory counsel was appointed) stating that the Petition had a major conflict with
advisory counsel. Id. at 5. At the February 16, 2007 hearing, Petitioner asked that advisory
counsel be discharged because he had tried to sabotage the case. See Feb. 16, 2007 Hr’g (CD
Lamar Tr., #21). The trial court told Petitioner she was “tapped out in terms of resources for
appointment at this time” but that the offer for advisory counsel would remain open. Id. at 4. At
the end of the hearing, after the discussion of pending motions concluded and the court set a trial
date, Petitioner tendered a motion to continue the trial date. Id. at 69. When the trial court
denied the motion, Petitioner moved for leave to plead not guilty by reason of insanity. Id. at 70.

19

Petitioner argued that his state of mind had always been at issue, that his third attorney
terminated the psychological evaluation without his consent, and that he needed the time to
consult with a doctor to determine whether he should go forward with an NGRI plea. Id. at 71.
On February 22, 2007, the trial court heard Petitioner’s argument for untimely assertion
of an NGRI plea. Feb. 22, 2007 Hr’g (CD Lamar Tr., #22). The trial court entered an order
denying the request for lack of good cause. CD Lamar File at 409-10. The trial court found that
despite numerous court appearances after his first attempt to enter an NGRI plea in April 2006,
Petitioner did not renew his request to plea NGRI until the February 16, 2007 hearing and in
direct response to the court’s denial of his motion for a continuance of trial. CD Lamar File at
410.
The timing of entry of the NGRI plea is governed by Colo. Rev. Stat. § 16-8-107(3)(b).
It provides that notice of an intent to enter a plea of not guilty by reason of insanity “shall be
given at the time of arraignment; except that the court, for good cause shown, shall permit the
defendant to inform the court and prosecution of the intent to introduce such evidence at any
time prior to trial.”
This requirement appears to be consonant with federal law. In Williams v. Florida, the
United States Supreme Court appeared to confirm the validity of pretrial notice statutes. See
Williams v. Florida, 399 U.S. 78 (1970) (addressed the notice of alibi witnesses). Subsequently,
the Supreme Court found that a defendant must “comply with established rules of procedure and
evidence designed to assure both fairness and reliability in the ascertainment of guilt and
innocence,” Chambers, 410 U.S. at 302, and a state’s interests may be heightened by a
defendant's failure to meet the notice requirements of a statute, see Michigan v. Lucas, 500 U.S.

20

145, 153 (1991) (“Failure to comply with [the notice] requirement may in some cases justify
even the severe sanction of preclusion.”). The Due Process Clause is violated only if the
exclusion of the evidence violated a fundamental principle of justice. Patterson v. New York,
432 U.S. 197, 201-02 (1977).
In Taylor v. Illinois, the Supreme Court affirmed the trial court’s exclusion of a witness
whose name did not surface until the second day of trial. See Taylor v. Illinois, 484 U.S. 400,
403-05 (1988) (defense counsel admitted aware of witness prior to trial and court found the
violation of discovery willful). Furthermore, in Williams, the Court stated:
The adversary system of trial is hardly an end in itself; it is not yet a poker game
in which players enjoy an absolute right always to conceal their cards until
played. We find ample room in that system, at least as far as “due process” is
concerned, for the instant Florida rule, which is designed to enhance the search
for truth in the criminal trial by insuring both the defendant and the State ample
opportunity to investigate certain facts crucial to the determination of guilt or
innocence.
Williams, 399 U.S. at 82.
The Tenth Circuit also has determined that the exclusion of testimony as a sanction for
violation of procedural rules does not violate the Due Process Clause. United States v. Pearson,
159 F.3d 480, 483-84 (10th Cir. 1998) (upholding the exclusion of an alibi witness that defense
counsel failed to disclose pursuant to Fed. R. Crim. P. 12.1(a), despite the fact that defendant’s
attorney acted diligently in informing the Government as soon as defendant made him aware of
the testimony); United States v. Bautista, 145 F.3d 1140, 1151-52 (10th Cir.), cert. denied, 525
U.S. 911 (1998) (“[T]he right to present defense witnesses is not absolute. A defendant must
abide by the rules of evidence and procedure.”); Richmond v. Embry, 122 F.3d 866, 871-72 (10th
Cir. 1997) cert. denied, 522 U.S. 1122 (1998) (noting that the state trial court properly excluded

21

evidence of a victim’s prior sexual activity because the defendant did not follow the procedures
set out in the state’s rape shield law); United States v. Russell, 109 F.3d 1503, 1509-12 (10th Cir.
1997) (affirming the district court’s refusal to grant a continuance to allow the Government to reinterview witnesses that the court excluded as a sanction for defense counsel’s violation of a
mutual witness disclosure agreement); see also Tyson v. Trigg, 50 F.3d 436, 444-47 (7th Cir.
1995) (balancing the high level of surprise and prejudice to the prosecution against the low
materiality of the testimony to exclude witnesses who were disclosed late in violation of a
discovery order-even though the delay was not willful).
Even recognizing that the Court in Chambers, and in other supreme court cases, did not
squarely address affirmative defenses, it cannot be said that the state trial court unreasonably
applied clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126 (2008).
Relief, therefore, is not available for the following reasons.
In support of his good cause argument, Petitioner argued that his mental condition was
always at issue, his third appointed attorney discontinued the psychological evaluation, and it
was not unreasonable to enter an NGRI plea two months prior to trial. Under Colorado law,
determining whether good cause exists “naturally depends on the particular facts of each case
and should be made after assessing the totality of the circumstances.” People v. Baker, 104 P.3d
893, 896 (Colo. 2005). Nonexclusive factors include “1) the potential prejudice the People may
suffer from late filing, 2) the interests of judicial economy, and 3) the propriety of requiring the
defendant to pursue other remedies.” Id. at 896–97 (citing Estep v. People, 753 P.2d 1241, 1248
(Colo. 1988)).

22

The Supreme Court has directed that in determining what constitutes excusable neglect, a
court must “tak[e] account of all relevant circumstances surrounding the party’s omission.”
Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993). The
Court has pointed to four factors that are relevant in determining whether to find excusable
neglect: 1) the danger of unfair prejudice to the nonmoving party; 2) the length of the delay and
its potential impact on judicial proceedings; 3) the reason for the delay, including whether it was
within the reasonable control of the movant; and 4) whether the movant acted in good faith. Id.;
see City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1046 (10th Cir. 1994). A
defendant has the burden of establishing sufficient reason for the failure to comply with the
filing requirements. See United States v. Lucas, 597 F.2d 243, 245 (10th Cir. 1979).
To assess the constitutionality of any preclusion sanction, acting with bad faith is an
“important factor but not a prerequisite to an exclusion.” Short v. Sirmons, 472 F.3d 1177, 118889 (10th Cir. 2006) (citing United States v. Johnson, 970 F.2d 907, 911 (D.C. Cir. 1992))
(citations omitted). Petitioner also must show his trial was fundamentally unfair if he is to
establish a violation of his compulsory process, fair trial, or due process rights: “ ‘[i]n order to
declare a denial of [fundamental fairness] [a court] must find that the absence of that fairness
fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a
fair trial.’ ” Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 872 (1982) (further quotation omitted).
Viewing the trial court’s entire pre-trial colloquy with Petitioner, the Court is persuaded
that the trial court did not mechanistically apply § 16-8-107(3)(b) in rejecting Petitioner's NGRI
plea as untimely. Petitioner had sufficient time to present an NGRI defense prior to the February

23

22 hearing. His first recorded attempt to raise an NGRI defense was on May 8, 2006. Indeed,
after finding him competent, the trial court afforded Petitioner a psychological evaluation to
assist in his decision to proceed with the NGRI defense. The evaluation took place during
September 2006 and feedback was given to Petitioner’s third appointed counsel on October 17,
2006. CD Lamar File at unnumbered page inserted before page 479. The Petitioner
discontinued the evaluation after he became aware of the doctor’s conclusions3 , and clearly was
aware of the conclusions on November 22, 2006, when he sought to discharge his third
appointed counsel. CD Lamar File at 301-02. At no time did the Petitioner request a new
psychologist or a new evaluation. The Petitioner never sought to renew his request to assert a
NGRI or mental impairment plea at any time after May 8, 2006 until his motion to continue the
trial was denied..

3

According to the Petitioner, the evaluator told him that his sanity was not in question.
Feb. 22, 2007 Hr’g (CD Lamar Tr., #22 at 11).
24

At all times, the Petitioner was fully advised by the trial court4, and he was assisted by
four different attorneys. He had previously had a trial, and in retrospect, it appears that the
Petitioner used various strategies to delay his trial, of which a request to change the nature of his
plea was only one. Under these circumstances, the Petitioner was not deprived of constitutionally
adequate assistance of counsel, adequate constitutional advisements by the trial court or due
process.

4

Petitioner was well informed regarding the conditions of an NGRI or mental
impairment defense. During the July 18, 2006 hearing, the trial court gave the written
advisement on the NGRI plea to Petitioner so he could review the terms for entering the plea.
The Court also notes that during the July 18 hearing when Petitioner was asked to enter the plea
he was reluctant to do so, and only when the Court offered the written advisement and deferred
the advisements to a later hearing did Petitioner state that “I wish not to defer this, you know. I
would like to enter not guilty by reason of insanity pleas . . . .” July 18, 2006 Hr’g (CD Lamar
Tr., #9 at 21). At the July 26, 2006 hearing, both the trial court and the prosecution informed
Petitioner that he could enter the NGRI plea, the court would accept the plea and order an
evaluation, and then Petitioner could decide what defense to present. July 26, 2006 Hr’g (CD
Lamar Tr., #26 at 38-39). Petitioner also was informed that a pro se litigant can enter an NGRI
plea. Id. at 39-40. Nonetheless, Petitioner opted not to enter an NGRI plea, but instead sought
the psychological evaluation, which was granted. Id. at 62. Petitioner also indicated at this time
that the evaluation would only be for the purpose of determining if there is an adult mental
impaired dysfunction. Id. at 63. Petitioner further was put on notice by the prosecution that if he
intended on using any of the mental health evidence he must comply with the requirements of
the insanity plea, even if the evidence is not offered pursuant to an insanity defense, and the
evaluation will not remain confidential. Id. at 66. Petitioner also was informed that if he
decided to use a mental impairment or insanity defense a court-appointed evaluation would be
done. Id. at 67. From the July 26, 2006 hearing, until the February 16, 2007 hearing, Petitioner
did not request to enter either a mental impairment defense or an insanity defense. At the
January 24, 2007 hearing, he only alluded to possibly raising a mental defect defense but did not
do so. Jan. 24, 2007 Hr’g (CD Lamar Tr., #1 at 28-30).

25

The trial court had a heightened interest in proceeding to a trial5 on charges against the
Petitioner. See Lucas, 500 U.S. at 153. The Petitioner’s second trial was first scheduled for
January 16, 2006, but due to the Petitioner’s various motions and requests did not occur until
April 23, 2007. Each of the continuances were based either on Petitioner’s disagreement with
counsel or dissatisfaction with proceeding pro se. The trial court was more than accommodating
to Petitioner in all of his requests, including appointment of counsel and advisory counsel,
provision of transcripts, legal access at the jail, and identifying an investigator. A review of the
hearing transcripts indicates that many of Petitioner’s requests were redundant and had the
implication of delaying the pretrial process. Finally, Petitioner’s claim that an evaluation could
be completed prior to the trial date was highly speculative given the history of the fifteen-month
delay.
The Court, therefore, finds that Petitioner’s untimely request to enter an NGRI plea was
an attempt to delay his trial, was not supported by good faith, and that the trial court was justified
in finding an absence of good cause. Accordingly, the CCA’s denial of Petitioner’s NGRI claim
did not result 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 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.

5

“Finality is not solely an interest of the parties to a criminal case. It also serves societal
interests and the interests of judicial administration by minimizing uncertainty and waste of
judicial resources caused by undue delay.” United States v. Mitchell, 518 F.3d 740, 750 (10th
Cir. 2008) (citing Day v. McDonough, 547 U.S. 198, 208 (2006) (pointing to the finality of
judgment as an important judicial value).
26

2. Claim Two
In his second claim, Petitioner asserts that the trial court failed to adequately ascertain
that he knowingly, intelligently, and voluntarily decided to represent himself when he asked that
his third counsel withdraw. Am. Pet., ECF #12, at 3. Petitioner contends that the trial court
failed to give him a proper advisement. In his Reply, Petitioner contends that had the “court read
his motion to proceed pro se, thereby disclosing the involuntary aspect to which a conflict
inheres, such waiver could not have been valid.” Reply at 16. He also contends that because the
“state courts’ decisions and opinion are silent, save the trial court’s later attempt to re-appoint
[his third appointed counsel] whom declined due to the conflict, they are based on an
unreasonable determination of the facts.” Id. Petitioner further asserts in the Reply that
the trial court failed to make an indulgence against the putative waiver, as is
clearly established, where it was more than evident as to the ultimate facts that
necessitated the waiver, vis-a-vis exploring a defense by a special plea, was
involuntarily compelled due to the conflict. And, by this later admission that the
trial court was absent-minded as to the nature of the waiver is a clear and
convincing showing that the factual determinations were made unreasonable in
light of the historical facts, aforementioned. Furthermore, the CCA’s opinion is
devoid of this critical factor.
Id.

Regarding Petitioner’s waiver of representation, the CCA found as follows:
III. Waiver of Right to Counsel
Defendant next claims that the trial court failed to ascertain that he
knowingly, intelligently, and voluntarily decided to represent himself following
his second motion to proceed pro se. Specifically, defendant appears to assert
that although he received a proper Arguello advisement when he initially sought
to proceed pro se, the trial court erred by failing to repeat the entire Arguello
advisement several months later, when defendant again requested, and was
granted, leave to proceed pro se. We are not persuaded.
27

A waiver of the right to counsel presents a mixed question of law and fact
that we review de novo. People v. Smith, 77 P.3d 751, 757 (Colo. App. 2003).
“A trial court’s determination that a defendant waived the constitutional right to
counsel will be upheld if the record affirmatively establishes that the defendant
knowingly and intelligently waived that right.” Arguello, 772 P.2d at 93. In
Arguello, our supreme court suggested a specific colloquy to be conducted
between the trial court and a defendant to ensure a voluntary, knowing, and
intelligent waiver of the right to counsel, and the court set forth a proposed
colloquy in an appendix for guidance. Id. at 95-96. A court’s failure to comply
substantially with this requirement, however, does not automatically render the
waiver invalid. Id. at 96. Rather, “in rare circumstances, a defendant’s waiver of
the right to counsel may be valid without use of the proposed colloquy, but in that
event, a reviewing court must consider the advisement and the totality of the
circumstances in the record as a whole.” Smith, 77 P.3d at 757. Before a
reviewing court can find a valid implied waiver based on conduct, however,
“there must be ample, unequivocal evidence in the record that the defendant was
advised properly in advance of the consequences of his actions.” Arguello, 772
P.2d at 97-98.
Here, when defendant filed his second request to proceed pro se, the trial
court reminded him of the lengthy written and oral advisement that it had given in
July 2006. In addition, the court confirmed that defendant recalled those
advisements, still understood the risks inherent in self-representation, and
nonetheless wished to represent himself. In these circumstances, considering the
totality of circumstances in the whole record, we conclude that defendant
intelligently, knowingly, and voluntarily waived his right to counsel after he
renewed, and the trial court granted, his request to represent himself. Although,
as noted above, defendant suggests that the trial court was required to repeat the
entire Arguello advisement in December 2006, he cites no authority in support of
that position, and we are aware of none.
Lamar, No. 07CA0985 at 9-11.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” The right to counsel includes not only the right to retain counsel, but also the right of
an indigent defendant to have counsel appointed for him at state expense. Gideon v. Wainwright,
372 U.S. 335 (1963).

28

A defendant in a criminal proceeding also has a constitutional right to waive his right to
counsel and to represent himself. Faretta v. California, 422 U.S. 806, 817 (1975). In order to be
effective, a waiver of counsel must be knowing, voluntary, and intelligent. See Iowa v. Tovar,
541 U.S. 77, 88 (2004). Whether a waiver is knowing, voluntary, and intelligent “depends in
each case upon the particular facts and circumstances surrounding that case, including the
background, experience, and conduct of the accused.” Edwards v. Arizona, 451 U.S. 477, 482
(1981) (internal quotation marks omitted). In the context of a criminal proceeding that goes to
trial, warnings regarding the pitfalls of proceeding without counsel must be rigorously conveyed.
See Patterson v. Illinois, 487 U.S. 285, 299 (1988).
The issue of whether a waiver of the right to counsel is knowing, voluntary, and
intelligent is a mixed question of law and fact. See Strozier v. Newsome, 926 F.2d 1100, 1104
(11th Cir. 1991). Finally, Petitioner bears the burden of proving that he did not competently and
intelligently waive his right to the assistance of counsel. See Tovar, 541 U.S. at 92.
Although Petitioner’s Reply is repetitive, and for the most part a recitation of case law,
the Court finds Petitioner is claiming that the waiver of his right to counsel at the December 8,
2006 hearing was involuntary because he had a conflict with counsel who had terminated his
psychologist without consulting him. Petitioner also contends that the trial court should have
given the Arguello advisement again rather than taking notice that the advisement had been
given six months prior to the December 8 hearing.
The Court has reviewed the hearing transcripts from the July 26, 2006 hearing,
specifically the portion that contains the trial court’s Arguello Advisement to Petitioner, July 26,
2006 Hr’g (CD Lamar Tr., #26 at 17-36), the file records, that include both Petitioner’s motion

29

to proceed pro se and counsel’s motion to withdraw, see CD Lamar File at 302-036 and 316-17,
and the transcripts for the December 8, 2006 hearing, CD Lamar Tr., #16. The Court has found
the following.
The trial court discussed with great detail the requirements and possible disadvantages of
self-representation. In particular, the trial court emphasized to Petitioner that disputes with an
attorney must be balanced with the disadvantages of proceeding pro se. CD Lamar Tr. #26 at
30. The trial court also reminded Petitioner during the advisement that he had previously elected
to remove two attorneys due to conflicts. Id. Petitioner responded that he understood the
potential for disaster in representing himself, that his conflict with the two attorneys was not
superficial, and that both of the attorneys would not explore certain issues. Id. at 31. The Court
further notes that a discussion regarding the NGRI plea issue followed the advisement. The
prosecution and the court stated that if the NGRI plea was the basis of the conflict Petitioner is
able to enter the plea over the objection of counsel and counsel is required to support the
defense. Id. at 37-40. Petitioner did not disagree that the NGRI plea was the source of the
conflict. Petitioner also was instructed that he did not have to be represented to enter the plea
and that he can decide to withdraw the plea after a court-ordered evaluation is conducted. Id. at
39-40.
For the following reasons, the Court concludes that Petitioner’s decision, on December 8,
2006, to waive his right to representation and proceed pro se was made voluntarily, intelligently,
and knowingly.
6

Although the copy of Petitioner’s motion to proceed pro se is undecipherable for the most part,
it is clear from Petitioner’s statements in his Motion for Summary Judgment, ECF #27 at 2, that he
elected to proceed pro se, because counsel had acted in an improper and unethical manner that culminated
in a conflict.

30

First, the advisement given on July 26, 2006, was very thorough and there is nothing to
suggest that the Petitioner did not remember the details of the advisement, especially since he
had received a written copy of the advisement.
Second, based upon the particular facts and circumstances surrounding this case,
including the background, experience, and conduct of the accused, a second advisement was not
necessary. Petitioner gave no indication at the December 8 hearing that he was unclear about the
intricacies of proceeding pro se. He acknowledged the advisement he was given on July 26 and
without hesitation stated he desired to proceed pro se. Dec. 8, 2006 Hr’g (CD Lamar Tr., #16 at
2-3). He even appeared anxious to proceed with filing new motions. Id. at 5. Petitioner also
acknowledged a propensity to create conflict with counsel and the graciousness of the court to
assist him with the appointment of at least three different attorneys. Id. at 4. Petitioner conceded
that the conflict with his third counsel was based on counsel’s disagreement about raising certain
issues and that he and counsel discussed these issues ad nauseam. Id.
Finally, Petitioner stated the source of the conflict with his third attorney and admitted
that the conflict had been the same with his other two attorneys in that they did not want to raise
certain issues. Id. at 5. Petitioner also told the court at the July 26, 2006 hearing that his conflict
with the two attorneys was not superficial, and that both of the attorneys would not explore
certain issues. The Court, therefore, finds that considering Petitioner’s statements at both the
December 8 and the July 26 hearings, the trial court had properly inquired and recorded the
source of the conflict. Petitioner, therefore, has failed to rebut the presumption that state court’s
factual determinations are correct by clear and convincing evidence.

31

The CCA decision regarding Petitioner’s involuntary waiver of counsel claim did not
result 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 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. This claim lacks merit and will be dismissed.
V. Conclusion
For the foregoing reasons, the Petition for Writ of Habeas Corpus (including #1 and #12)
is DENIED. The Court has sua sponte considered whether any of Petitioner's contentions
warrant the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(a). Having
considered the standards of Slack v. McDaniel, 529 U.S. 473, 484 (2000), the Court finds that
Petitioner has not made a substantial showing of the denial of a constitutional right such that
reasonable jurists could disagree as to the disposition of his petition. 28 U.S.C. § 2253(c)(2).
Accordingly, the Court denies a Certificate of Appealability.
The Court also sua sponte certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Petitioner
files a notice of appeal he must also pay the full $455.00 appellate filing fee or file a motion to
proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within
thirty days in accordance with Fed. R. App. P. 24.
The Motion and Affidavit in Support of Summary Judgment on Habeas Claim Two Fed.
R. Civ. P. 56, ECF #27, and the Motion to Obtain Response to Motion for Summary Judgment
on Claim Two Pursuant to D.C.COLO.L.Civ.R. 56.1, ECF #29, are DENIED as moot.

32

Dated this 13th day of May, 2013

BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

33