Duran v. Davis et al

Filing 32

ORDER denying 9 Application for a Writ of Habeas Corpus and dismissing this case with prejudice. No certificate of appealability will issue. By Judge Christine M. Arguello on 12/11/12. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-00877-CMA
RONALD DURAN,
Applicant,
v.
JOHN DAVIS, and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 9) (“the Application”), filed pro se by
Applicant, Ronald Duran. Respondents have filed an Answer to Habeas Application
(Doc. # 29) (“the Answer”), and Mr. Duran has filed Applicant’s Reply to Attorney
General Answer (Doc. # 31) (“the Traverse”). After reviewing the record, including the
Application, the Answer, the Traverse, and the state court record, the Court concludes
that the Application should be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Duran is a prisoner in the custody of the Colorado Department of Corrections
at the Sterling Correctional Facility in Sterling, Colorado. He is challenging the validity
of his conviction and sentence for robbery and third degree assault in Adams County
District Court case number 05CR3013.

At trial, undisputed evidence presented to the jury revealed that Mr. Duran
and the victim knew each other and attended two parties together one evening; that
Mr. Duran, the victim, and an unidentified man went to an apartment complex after
leaving the second party; that the victim was assaulted at the apartment complex;
that two men were present while the victim was assaulted; and that the victim’s photo
identification card was found during a search of Mr. Duran’s bathroom in a house he
shared with his mother. Witnesses provided varying descriptions of the clothing worn
by the two men present when the victim was assaulted, but the victim testified that she
was assaulted by Mr. Duran. Mr. Duran’s defense was that he was only a bystander
while the unidentified man assaulted the victim and Mr. Duran’s mother testified that
the victim’s photo identification card was present in Mr. Duran’s bathroom before the
assault occurred. At the conclusion of the trial, Mr. Duran was convicted of robbery
and third degree assault.
After Mr. Duran was adjudicated to be an habitual criminal in a separate
proceeding, he was sentenced to twenty-four years in prison. The Colorado Court of
Appeals affirmed the judgment of conviction on direct appeal. See People v. Duran, No.
07CA1744 (Colo. App. Apr. 30, 2009) (unpublished) (Doc. # 16-13.) On July 20, 2009,
the Colorado Supreme Court denied Mr. Duran’s petition for writ of certiorari on direct
appeal. (See Doc. # 16-11.) Mr. Duran also pursued postconviction relief in the state
courts, but the state court postconviction proceedings are not relevant to the Court’s
consideration of Mr. Duran’s remaining claims.

2

Mr. Duran asserts four numbered claims for relief in the Application, each of
which has various subparts. The Court previously entered an Order to Dismiss in Part
(Doc. # 28), in which claims 1 and 4 and a portion of claim 3 were dismissed as
unexhausted and procedurally barred. As a result, only claim 2 and a portion of claim
3 remain pending before the Court. Respondents concede that the remaining claims
are timely and the Court has determined they are exhausted.
Mr. Duran contends in claim 2 that his Sixth and Fourteenth Amendment rights
were violated during the course of jury selection. He alleges in the Application in
support of claim 2 that the prosecution improperly was allowed two extra peremptory
challenges; two jurors (“S” and “W”) were dismissed for cause without an opportunity
for questioning by the defense; and he was forced to use a peremptory challenge to
remove a juror (“R”) after the trial court improperly denied a defense challenge for
cause. (See Doc. # 9 at 7.) It is apparent that the first two subparts of claim 2 are
related because Mr. Duran argued on direct appeal that dismissing jurors S and W
for cause without allowing defense counsel to question those jurors resulted in the
prosecution being afforded two extra peremptory challenges. (See Doc. # 16-16 at 1422.) The Court will refer to these related subparts of claim 2 as claim 2(a). The Court
will refer to the other subpart of claim 2, in which Mr. Duran contends he was forced to
use a peremptory challenge to remove juror R, as claim 2(b).
Mr. Duran alleges in the Application in support of claim 3 that his Sixth and
Fourteenth Amendment rights were violated as a result of judicial bias. In the Court’s

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Order to Dismiss in Part, the Court construed claim 3 liberally as asserting a violation
of Mr. Duran’s constitutional right to compulsory process and to present a defense
premised on the trial judge’s failure to grant a motion for a mistrial or alternatively
consider a request for admission of statements under the residual hearsay exception.
Mr. Duran alleges in support of this liberally construed claim that a defense witness,
Nikkole1 King, failed to appear at trial, that the trial court denied a defense motion for a
mistrial based on Ms. King’s failure to appear, and that the trial court denied a defense
motion to introduce Ms. King’s statements through a law enforcement officer pursuant to
the residual hearsay exception. (See Doc. # 31 at 2.) So construed, the Court found
that this portion of claim 3 is exhausted.
II. STANDARD OF REVIEW
The Court must construe the Application and the Traverse liberally because
Mr. Duran is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the
Court should not be 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:

1

Ms. King’s first name is spelled differently in various documents and transcripts in the
state court record and the Court’s file, but there is no question that the various spellings refer to
the same person.

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(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). Mr. Duran bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court reviews 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 the Court must answer under § 2254(d)(1) is whether
Mr. Duran 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 the Court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.

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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 inquiry. 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. Furthermore,
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[E]valuating 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.
[I]t 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 (2011) (internal quotation marks omitted).
In conducting this analysis, 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. In
addition, “review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011).
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; see also
Richter, 131 S. Ct. at 786 (stating that “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus 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. 786-87.
The Court reviews claims asserting 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).
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Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant
state court decision was based on an unreasonable determination of the facts in light
of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court must
presume that the state court’s factual determinations are correct and Mr. Duran 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 MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
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).
III. MERITS OF APPLICANT’S REMAINING CLAIMS
A.

CLAIM 2
As set forth above, Mr. Duran contends in claim 2 that his Sixth and Fourteenth

Amendment rights were violated because of improper jury selection. In particular, he
alleges in claim 2(a) that dismissing jurors S and W for cause without allowing defense
counsel to question those jurors resulted in the prosecution being afforded two extra
peremptory challenges and he alleges in claim 2(b) that he was forced to use a
peremptory challenge to remove juror R after the trial court improperly denied a defense
challenge for cause.

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Respondents argue that claims 2(a) and 2(b) must be dismissed because neither
claim states a federal constitutional claim cognizable in a habeas corpus action. With
respect to claim 2(a), Respondents maintain that there is no federal constitutional right
to the use of peremptory challenges to achieve the constitutional requirement of an
impartial jury. With respect to claim 2(b), Respondents maintain that the use of a
peremptory challenge to remove an allegedly biased juror also does not implicate a
federal constitutional right. The Court agrees that claims 2(a) and 2(b) do not state
cognizable constitutional claims and must be dismissed.
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a defendant the right to an impartial jury. See Ross v. Oklahoma, 487 U.S.
81, 85 (1988); Irvin v. Dowd, 366 U.S. 717, 722 (1961). If a “juror’s views would prevent
or substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath,” he should be dismissed for cause. Wainwright v. Witt, 469
U.S. 412, 424 (1985) (internal quotation marks omitted); see also United States v. Scull,
321 F.3d 1270, 1278 (10th Cir. 2003). However, in deciding whether the jury was
impartial, the Court must focus on the jurors who ultimately deliberated and decided Mr.
Duran’s fate. See Ross, 487 U.S. at 86.
Mr. Duran does not argue in either claim 2(a) or claim 2(b) that any of the jurors
who actually determined his guilt were biased or impartial. Instead, claims 2(a) and 2(b)
both relate to alleged errors that resulted in the dismissal of prospective jurors during
voir dire.

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Mr. Duran asserts in claim 2(a) that he was denied the opportunity to rehabilitate
jurors S and W, who were dismissed for cause at the request of the prosecution, and
that the absence of an opportunity to rehabilitate jurors S and W effectively allowed
the prosecution to exercise two additional peremptory challenges. Although Mr. Duran
asserts in the Traverse that the prosecution’s challenges for cause with respect to jurors
S and W were granted after the prosecution exercised all of their peremptory
challenges, the state court record demonstrates that jurors S and W were dismissed
prior to either party exercising any peremptory challenges. (See State Court R., Trial
Tr. 5/14/07 at pp.98-99, 123.) In any event, the timing of the challenges is not pertinent
to the Court’s analysis below.
The Court finds that claim 2(a) lacks merit because Mr. Duran fails to demonstrate that the allegedly improper dismissal of jurors S and W resulted in a jury that was
either unfair or impartial. See Jones v. Dretke, 375 F.3d 352, 355-56 (5th Cir. 2004)
(noting that outside the capital context, there is no federal constitutional violation in
erroneous grant of a prosecution challenge for cause). Simply put, Mr. Duran does not
identify any federal constitutional right to rehabilitate jurors challenged for cause by the
prosecution in this context. Although the Supreme Court “has recognized a defendant’s
constitutional right to voir dire questioning . . . about whether jurors might be prejudiced
against a defendant because of his race,” see Kater v. Maloney, 459 F.3d 56, 66
(1st Cir. 2006) (citing Ham v. South Carolina, 409 U.S. 524, 526-27 (1973), and
Aldridge v. United States, 283 U.S. 308, 314-15 (1931)), Mr. Duran does not contend

10

that the denial of his opportunity to rehabilitate jurors S and W had anything to do with
determining their potential racial bias. Furthermore, to the extent claim 2(a) may be
construed as asserting an argument that Mr. Duran effectively was denied an equal
number of peremptory challenges, the Court notes that “there is no free-standing
constitutional right to peremptory challenges.” Rivera v. Illinois, 556 U.S. 148, 157
(2009). Therefore, the Court finds that claim 2(a) does not raise a cognizable federal
constitutional issue.
The Court also finds that Mr. Duran is not entitled to relief with respect to claim
2(b). Mr. Duran concedes, and the state court record confirms, that he used a
peremptory challenge to excuse the allegedly biased juror R after the trial court denied
the defense challenge for cause. (See State Court R., Trial Tr. 5/14/07 at p.127.) Thus,
Mr. Duran cured any constitutional error that may have occurred when the trial court
refused to remove juror R for cause. See Ross, 487 U.S. at 88. The fact that
Mr. Duran was required to use a peremptory challenge to achieve the goal of an
impartial jury is not sufficient to demonstrate a constitutional violation. See id.
B.

CLAIM 3
As discussed above, the Court has construed claim 3 liberally as asserting a

violation of Mr. Duran’s constitutional right to compulsory process and to present a
defense premised on the trial judge’s failure to grant a motion for a mistrial or
alternatively to consider a request for admission of statements under the residual
hearsay exception. See, e.g., Richmond v. Embry, 122 F.3d 866, 871 (10th Cir. 1997)

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(explaining that the right to present defense-witness testimony arises under the Fifth
and Fourteenth Amendment right to due process and the Sixth Amendment right to
compulsory process). On direct appeal, the Colorado Court of Appeals recounted
the proceedings in the trial court pertinent to this claim as follows:
Here, on the first day of trial, defense counsel advised the court:
[Ms. King] is a witness we have under subpoena, we had her under
subpoena last time this trial was going to start, and it didn’t start because
Mr. Duran wasn’t here, but [Ms. King] was not here either. I asked the
Court to issue a contempt citation or an arrest warrant for her, she was
arrested, she was held in custody, we reserved her, and I don’t believe
she is here now . . . . I don’t feel comfortable saying I’m ready to proceed
when she’s not here because she is a necessary witness. I’m just not
comfortable with that because of her past failure to appear . . . .
The trial court declined to address the issue at that time because
[Ms. King] was not scheduled to be called until the following day.
However, the trial court issued a bench warrant for [Ms. King].
At the conclusion of the prosecution’s case, defense counsel
moved for a mistrial because [Ms. King] still had not appeared. The trial
court asked defense counsel how [Ms. King’s] testimony was material to
the defense, because an officer had already testified that [Ms. King] had
not been able to identify Duran in a photo array and Duran did not deny
being present when [the victim] was attacked.
Defense counsel then provided the following offer of proof:
[Ms. King] will say one man was standing, not doing anything, and the
other man was beating – basically beating up [the victim]. . . . Her
description to – her description that she wrote, her specific statement, she
wrote that there were two men, that the first man was stocky build, 5'6" or
5'7", medium complexion, had a black baseball cap, black cut off shirt, and
dark blue jeans. The second guy standing at the end of the complex was
Hispanic, he had a lighter complexion, he had a white cutoff shirt and light

12

blue jean shorts . . . . [A]lso the court has heard [the victim] denied
bringing a bottle of liquor [or] an alcoholic drink with her to the front porch
when she went to knock on Building No. 4. [Ms. King] will testify she saw
a bottle of liquor that was there that wasn’t there previously.
The trial court denied the mistrial motion and made extensive
findings of fact, including the following:
I find, under the totality of the circumstances, the failure to appear wasn’t
the result of state involvement, [and Ms. King] is not a person specifically
identifying the defendant as the person who was not assaulting [the
victim]. [Ms. King] provides evidence of somewhat inconsistent clothing,
she has some impeachment evidence, but the defense did nothing to
preserve her testimony so that they have that at a trial.
The trial court then adjourned the trial until the following day so that
defense counsel could continue her efforts to contact [Ms. King]. The next
morning defense counsel advised the court that she had not been able to
contact or find [Ms. King] and renewed her motion for a mistrial, which the
trial court denied.
(Doc # 16-13 at 13-15.)
As an initial matter, the Court notes that, in reviewing Mr. Duran’s claim that his
constitutional right to present a defense was violated, the Court is not reviewing whether
the trial court properly denied Mr. Duran’s motions for a mistrial as a matter of state law
or whether the trial court properly applied Colorado’s residual hearsay exception to
exclude the evidence in question. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(“[I]t is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States”). Instead, the question before the Court is whether the decision of the
Colorado Court of Appeals rejecting Mr. Duran’s constitutional claim that his right to
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present a defense was violated is contrary to or an unreasonable application of clearly
established federal law.
It was clearly established when Mr. Duran was convicted that, “[w]hether rooted
directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory
Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees
criminal defendants a meaningful opportunity to present a complete defense.” Crane
v. Kentucky, 476 U.S. 683, 690 (1986) (citations omitted). Of course,
[w]hile the Constitution thus prohibits the exclusion of defense evidence
under rules that serve no legitimate purpose or that are disproportionate to
the ends that they are asserted to promote, well-established rules of
evidence permit trial judges to exclude evidence if its probative value is
outweighed by certain other factors such as unfair prejudice, confusion
of the issues, or potential to mislead the jury.
Holmes v. South Carolina, 547 U.S. 319, 326 (2006); see also Crane, 476 U.S. at 68990 (stating that “the Constitution leaves to the judges who must make these decisions
‘wide latitude’ to exclude evidence that is ‘repetitive . . ., only marginally relevant’ or
poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”).
Ultimately, “to establish a violation of the right to compulsory process, a fair trial
or due process, a defendant must show a denial of fundamental fairness.” Richmond,
122 F.3d at 872. It bears noting that the Supreme Court has “defined the category of
infractions that violate ‘fundamental fairness’ very narrowly.” Dowling v. United States,
493 U.S. 342, 352 (1990). Furthermore, “because a fundamental-fairness analysis is
not subject to clearly definable legal elements, when engaged in such an endeavor a
federal court must tread gingerly and exercise considerable self restraint.” Duckett v.
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Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted). The
Court’s “[i]nquiry into fundamental fairness requires examination of the entire
proceedings.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (per curiam).
In determining whether Mr. Duran can demonstrate a denial of fundamental
fairness in the specific context of his claim that his constitutional right to present witness
testimony was violated, the Court
first examine[s] whether that testimony was relevant, and if so, whether
the state’s interests in excluding the evidence outweighed Mr. [Duran’s]
interests in its admittance. This inquiry includes an examination as to
whether more traditional factors such as prejudice, issue and jury confusion weigh in favor of excluding the testimony. Second, [the Court]
examine[s] whether the excluded testimony was material – whether it
was of such an exculpatory nature that its exclusion affected the trial’s
outcome.
Richmond, 122 F.3d at 872.
The Colorado Court of Appeals applied this clearly established federal law in
addressing Mr. Duran’s claim that he was denied the opportunity to present defense
witness testimony. (See Doc. # 16-13 at 12.) More specifically, the Colorado Court of
Appeals cited a Colorado Supreme Court case, People v. Chastain, 733 P.2d 1206
(Colo. 1987), that in turn relied on federal constitutional standards established by the
United States Supreme Court. See Chastain, 733 P.2d at 1212 (quoting United States
v. Valenzuela-Bernal, 458 U.S. 858 (1982) for the proposition that a defendant cannot
establish a violation of either his constitutional right to compulsory process or due
process “unless he can make a ‘plausible showing of how [the] testimony would have
been both material and favorable to his defense.’”). In applying this clearly established
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federal law, the Colorado Court of Appeals determined that Mr. Duran’s constitutional
right to present a defense was not violated because, consistent with trial court’s
findings, the evidence in question was not material.
The trial court made extensive findings demonstrating that [Ms. King’s]
testimony was not material. The defense theory of the case was that
although Duran was present, he was a mere bystander with respect to
the assault and theft. However, because testimony had already been
admitted indicating that [Ms. King] was not able to identify Duran either as
a bystander or as the person actively assaulting [the victim], the probative
value of the proposed testimony was low. Moreover, though the testimony
regarding clothing and the liquor bottle may have had some impeachment
value, the absence of this testimony was not of such import as to justify a
mistrial.
(Doc. # 16-13 at 15.)
Mr. Duran does not argue that the decision of the Colorado Court of Appeals is
contrary to clearly established federal law. That is, he does not argue that the Colorado
Court of Appeals applied a rule that contradicts the governing law set forth in Supreme
Court cases or that the Colorado Court of Appeals confronted a set of facts materially
indistinguishable from a decision of the Supreme Court and nevertheless arrived at a
result different from the Supreme Court precedent. See House, 527 F.3d at 1018.
Mr. Duran also fails to demonstrate that the decision of the Colorado Court of
Appeals was an unreasonable application of clearly established federal law. There is no
dispute that Ms. King’s testimony would have been relevant. Therefore, the Court must
focus on whether Ms. King’s testimony was material and whether the determination by
the state courts that Ms. King’s testimony was not material is objectively unreasonable.
To reiterate, evidence is material if it was of such an exculpatory nature that its
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exclusion affected the trial’s outcome. See Richmond, 122 F.3d at 872.
Mr. Duran argues in the Traverse that Ms. King’s testimony was material and
would have changed the outcome of the trial because she observed the victim being
assaulted from a distance of five feet and she heard statements made by the victim
regarding a $100.00 bill that was found on the ground after the assault. However,
Mr. Duran does not dispute, as the state courts determined, that Ms. King could not
identify whether Mr. Duran was the man she observed assaulting the victim or the
bystander who was not actively participating in the assault. By contrast, the victim did
identify Mr. Duran as the man who assaulted and robbed her and the victim’s photo
identification card was found by police later that day in Mr. Duran’s bathroom in the
house he shared with his mother. In light of this evidence, and based on the Court’s
review of the entire state court record, the Court finds that the decision by the Colorado
Court of Appeals that Ms. King’s testimony was not material, i.e., that it would not have
affected the outcome of the trial, is not an unreasonable application of clearly
established federal law. In short, Mr. Duran fails to demonstrate that “most reasonable
jurists exercising their independent judgment would conclude the state court misapplied
Supreme Court law.” Maynard, 468 F.3d at 671. Therefore, the Court finds that
Mr. Duran also is not entitled to relief with respect to claim 3.

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IV. CONCLUSION
In summary, the Court finds that Mr. Duran is not entitled to relief on his
remaining claims. Accordingly,
IT IS ORDERED that the amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. # 9) is DENIED and this case is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that there is no basis on which to issue a certificate
of appealability pursuant to 28 U.S.C. § 2253(c).
DATED December 11, 2012.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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