Pena v. Hartley et al

Filing 24

ORDER denying 28 U.S.C. § 2254 Application. Motion to Reconsider Dismissal of Claims 2(c) and 4 and Objection to Court's Partial Dismissal of Those Claims 23 is Denied. ORDERED that the habeas corpus application is DENIED, and the action is DISMISSED WITH PREJUDICE. ORDERED that leave to proceed in forma pauperis on appeal is DENIEDby Judge Wiley Y. Daniel on 05/28/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-01363-WYD
JOSE ARTURO PENA,
Applicant,
v.
S. HARTLEY, Warden, Arkansas Valley Corr. Fac., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING 28 U.S.C. § 2254 APPLICATION

Applicant, Jose Arturo Pena, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Arkansas Valley
Correctional Facility in Crowley, Colorado. Mr. Pena, acting pro se, initiated this action
by submitting to the Court on May 24, 2012, an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his conviction and
sentence in Adams County, Colorado, district court Case No. 93CR1195. He has been
granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. ECF No. 1 is
an example of the convention I will use throughout this order to identify the docket
number assigned to a specific paper by the Court’s electronic case filing and
management system (CM/ECF).
On June 7, 2012, Magistrate Judge Boyd N. Boland ordered Respondents to file
within twenty-one days a pre-answer response limited to addressing the affirmative

defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies under 28 U.S.C. § 2254(b)(1)(A). On June 26, 2012, Respondents filed their
pre-answer response (ECF No. 15). Mr. Pena did not file a reply.
On September 4, 2012, I dismissed the case in part (ECF No. 18) by dismissing
unexhausted claims 2(c), 4, and 7 as procedurally defaulted and claims 2(a), 2(b), 3,
and 5 as not cognizable in a habeas corpus action. I further ordered Respondents to
file an answer within thirty days that addressed the merits of exhausted claims 1, 2(d),
and 6. These claims remain pending. The state court record was filed on September
14, 2012 (ECF No. 19), and Respondents’ answer (ECF No. 20) was filed on October 2.
Mr. Pena did not file a reply, although he was given the opportunity to do so. Instead,
on November 7, 2012, he filed a motion to reconsider the dismissal of claims 2(c) and 4.
In considering Mr. Pena's filings, I am mindful that he is proceeding pro se and,
therefore, I construe his pleadings liberally and hold them to “less stringent standards”
than pleadings drafted by lawyers in accordance with Haines v. Kerner, 404 U.S. 519,
520 (1972). Such liberal construction is intended merely to overlook technical
formatting errors, poor writing style, and other defects in the party's use of legal
terminology, citation, and theories. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, I cannot act as a pro se litigant's legal advocate, and a pro se litigant
retains the burden to allege sufficient facts to state a viable claim. Furthermore, pro se
status does not relieve a party of the duty to comply with the various rules and
procedures governing litigants and counsel or the requirements of the substantive law,
and in these regards, I must apply the same standard to counsel licensed to practice
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law and to a pro se party. See McNeil v. United States, 508 U.S. 106, 113 (1993);
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994). For the reasons stated
below, I will deny the motion to reconsider the dismissal of claims 2(c) and 4, and
dismiss exhausted and pending claims 1, 2(d), and 6.
I. Factual and Procedural Background
Mr. Pena was convicted by a jury in Adams County District Court Case No.
93CR1195 on one count of first degree murder (after deliberation), and later was
sentenced to life imprisonment in the DOC. ECF No. 15 at 1. Mr. Pena appealed
directly to the Colorado Court of Appeals, which affirmed on October 13, 2005. ECF
No. 15, ex. N (People v. Pena, No. 02CA0413 (Colo. Ct. App. Oct. 13, 2005)
(unpublished)). On March 23, 2006, the appeals court denied rehearing. ECF No. 15,
ex. L. On September 11, 2006, the Colorado Supreme Court denied certiorari review.
ECF No. 15, ex. J.
On August 30, 2007, Mr. Pena filed a postconviction motion pursuant to Rule
35(c) of the Colorado Rules of Criminal Procedure. ECF No. 15, ex. A at 8. After a
hearing, the trial court denied the Rule 35(c) motion on January 28, 2009. Id. at 6-7.
Mr. Pena appealed to the Colorado Court of Appeals, which affirmed on September 29,
2011. ECF No. 15, ex. E (People v. Pena, No. 09CA0325 (Colo. Ct. App. Sept. 29,
2011) (unpublished)). On March 5, 2012, the Colorado Supreme Court denied certiorari
review. ECF No. 15, ex. C.
On May 24, 2012, Mr. Pena filed his application for writ of habeas corpus with
this court. On September 4, 2012, I dismissed the application in part. In the September
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4 partial dismissal order, I noted that Respondents conceded the application was timely,
dismissed certain claims as procedurally defaulted or not cognizable in a habeas corpus
action, and drew the remaining exhausted claims for further proceedings.
II. Motion to Reconsider
Before addressing the merits of the exhausted claims, I will address Mr. Pena’s
motion to reconsider the dismissal of procedurally defaulted claims 2(c) and 4.
In claim 2(c), Mr. Pena asserted that admission of the assault and sexual assault
violated his due process right to a fair trial. In claim 4, Mr. Pena asserts that admission
of several pieces of evidence violated his right to due process. I agreed with
Respondents that claims 2(c) and 4 were unexhausted because Mr. Pena relied only on
Colorado case law when he presented the claims to the state courts and, therefore, he
failed to present these claims to the state courts as asserting a federal constitutional
question. I also found that Mr. Pena had procedurally defaulted both claims, and failed
to demonstrate cause and prejudice or a fundamental miscarriage of justice. Therefore,
I found that claims 2(c) and 4 were procedurally barred from federal habeas review, and
dismissed the claims.
I have reviewed Mr. Pena’s arguments contending that these claims are not
unexhausted, as well as the portions of the state court record to which they pertain, and
do not find the arguments persuasive. Mr. Pena fails to convince me that claims 2(c)
and 4 were dismissed erroneously as unexhausted and procedurally barred. In
addition, his argument based on Walker v. Attorney General, 167 F.3d 1339, 1344-45
(10th Cir. 1999), is inapplicable to the facts of this case. In the instant action, Mr. Pena
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does not raise a competency claim. Secondly, Rule 35(c) of the Colorado Rules of
Criminal Procedure, including the specific statutory sections Mr. Pena cites in his
argument, Colo. R. Crim. P. 35(c)(3)(VI) and (VII), were in effect in 2004, long before he
filed his Rule 35(c) postconviction motion on August 30, 2007. Therefore, Colo. R. Civ.
P. 35(c) applies to his case. In any event, it is a long-standing tradition that habeas
corpus applicants may not raise in a subsequent postconviction motion claims
previously raised and resolved on appeal or not raised on appeal or in a prior
postconviction motion. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996)
(quoting People v. Bastardo, 646 P.2d 382, 383 (Colo. 1982)). The motion to
reconsider will be denied.
III. Analysis
A. Standard of Review on the Merits
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). Mr. Pena bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

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A claim 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. Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011). In particular, “determining 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.” Id. at
784. Thus, “[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. 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 [the Court] that its 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.
Although Richter concerned a state-court order that did not address any of the
defendant’s claims, its presumption is applicable when a state-court opinion addresses
some but not all of those claims. Johnson v. Williams, 133 S. Ct. 1088, 1094-98 (2013).
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For purposes of § 2254(d), when a state court rules against a defendant in an opinion
that rejects some of the defendant’s claims but does not expressly address a federal
claim, a federal habeas court must presume, subject to rebuttal, that the federal claim
was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not
assume that any unaddressed federal claim simply was overlooked because a state
court does not uniformly discuss separately every claim referenced by a defendant. Id.
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. Pena 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

8

independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. Furthermore,
[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.
Richter, 131 S. Ct. at 786 (citation and 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.

9

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).
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. Pena 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).
B. Claims
I now will address the merits of Mr. Pena’s exhausted and remaining claims:
1. The trial court erred when it failed to suppress Mr. Pena’s custodial
statement to a detective.
2(d). Admission of the assault and sexual assault violated the
Confrontation Clause.
6. Mr. Pena received ineffective assistance of counsel.

10

Claim 1
As his first claim, Mr. Pena alleges that the trial court erred when it failed
to suppress his custodial statement to a detective in violation of his Fifth
Amendment privilege against self-incrimination. I disagree.
The Fifth Amendment to the United States Constitution guarantees that
“[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966),
the United States Supreme Court held that law enforcement officers must employ
certain procedural safeguards to ensure that a criminal suspect's right against
compulsory self-incrimination is protected during an interrogation. Id. at 478-79.
The term “interrogation” for purposes of Miranda “refers not only to express
questioning, but also to any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode
Island v. Innis, 446 U.S. 291, 301 (1980). The test focuses on the perspective of
the suspect, not the intent of the police. Id. However, the intent of the police is
not irrelevant. Id. at 301, n.7. Nonetheless, police may engage in “[g]eneral
on-the-scene questioning as to facts surrounding a crime or other general
questioning of citizens in the fact-finding process” without first providing the
Miranda warnings. Miranda, 384 U.S. at 477-78. The determination of whether
an individual is in custody at the time of questioning is a mixed question of law
and fact. Manthey v. Darr, No. 10-cv-01755-WYD, 2011 WL 3471075, at *5 (D.
11

Colo. Aug. 8, 2011) (unpublished); Sanchez v. Abbott, No. 05-cv-00423-EWNBNB, 2007 WL 4178474, at *8 (D. Colo. Nov. 26, 2007) (unpublished).
Incriminating statements obtained by government acts, threats, or
promises that permit the defendant's will to be overborne run afoul of the Fifth
Amendment and are inadmissible at trial as evidence of guilt. Malloy v. Hogan,
378 U.S. 1, 7 (1964). Without more, however, misrepresentations, ruses, and
trickery by questioning authorities do not render an otherwise voluntary
confession involuntary. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (interrogator’s
misrepresentation to suspect that accomplice already had confessed did not
render suspect’s confessional coerced). In determining whether a defendant's
inculpatory statements were voluntary, the Court considers the following factors,
under a totality-of-the-circumstances test: (1) the age, intelligence, and
education of the defendant; (2) the length of the detention; (3) the length and
nature of the questioning; (4) whether the defendant was advised of his
constitutional rights; and (5) whether the defendant was subjected to physical
punishment. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see
also Mincey v. Arizona, 437 U.S. 385 (1978). The Court is mindful that
“coercive police activity is a necessary predicate to the finding that a confession
is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157, 167 (1986).
Mr. Pena bases his first claim on the fact that, when the lead investigator
first met him in New Mexico, roughly eight years after the murder of the victim,
C.Z., the detective made a statement, to which Mr. Pena made an incriminating
12

reply. He argues here, as he did in the state courts, that the detective’s
statements constituted an interrogation in violation of Miranda.
On direct appeal in No. 02CA0413, the Colorado Court of Appeals found
the following facts:
After defendant was arrested in New Mexico,
two deputy sheriffs, one being the principal
investigating officer, were dispatched to bring him
back to Colorado. Outside a holding cell in New
Mexico, the investigating officer approached
defendant and introduced himself. As part of the
ensuing exchange, the investigating officer told
defendant that he “had been looking for him for a long
time” and that “eight years is a long time to run.” To
these statements, defendant replied: “Nine, and it is;
it’s time to get it over with.”
The investigating officer then told defendant
that “once things settled down a bit” and they were
back in Colorado, he wanted to hear defendant’s
version of what happened. Defendant replied that he
had already spoken to his attorney in Colorado and
that he did not want to make any more statements
until he had spoken to her further. Wanting to be
clear in his understanding of defendant’s position, the
officer then asked defendant again whether he
wanted to refrain from making any statements until he
could be in the presence of his attorney, and
defendant answered this question in the affirmative.
ECF No. 15, ex. N at 4-5.
Before trial, Mr. Pena filed a motion to suppress his statements made to
the principal investigating officer at the time of his arrest. R. vol. 1, 56-58, May 9,
2001. In the motion, he argued that the detective’s statement, “[e]ight years is a
long time to run,” constituted interrogation under the Miranda test, such that

13

applicant’s response should have been suppressed. Id. at 57. Following a
motions hearing, R. vol. 4, 9-31, August 3, 2001, the trial court entered its
findings and denied the motion to suppress. R. vol. 5, 2-5, Aug. 8, 2001. The
Colorado Court of Appeals affirmed, reasoning that:
The issue of whether the statement was the
product of an interrogation is a mixed question of law
and fact. Our standard of review requires that we
give deference to the trial court’s findings of historical
fact, and our review of the legal question, including
any constitutional issues, is de novo. People v.
Matheny, 46 P.3d 453 (Colo. 2002).
The Fifth Amendment to the United States
Constitution protects a criminal suspect’s right to have
an attorney present during custodial interrogations.
Miranda v. Arizona, supra; People v. Gonzales, 987
P.2d 239 (Colo. 1999). Once a suspect in custody
invokes his right to an attorney, all interrogation in the
absence of counsel must cease. People v. Gonzales,
supra. Under Miranda v. Arizona, supra, statements
made by a defendant during a custodial police
interrogation are inadmissible as evidence in a
criminal case unless it is established that the
defendant was adequately advised of his Fifth and
Sixth Amendments rights and waived them. Two
requirements must be met before Miranda is
applicable: the person making the statement must be
in custody, and the statement must be the product of
police interrogation. People v. Johnson, 30 P.3d 718
(Colo. App. 2000).
Here, it is undisputed that defendant was in
custody at the time of the statement in question and
that the officers did not advise him of his rights under
Miranda v. Arizona, supra, before speaking with him.
The issue then becomes whether the statement
resulted from an interrogation.

14

“Interrogation” for purposes of the Miranda
analysis has not been limited to express questioning,
but also includes its functional equivalent. People v.
Rivas, 13 P.3d 315 (Colo. 2000). That is, it refers not
only to express questioning by a police officer, but
also to any words or actions on the part of the officer
(other than those normally attendant to arrest and
custody) that the officer “should know are reasonably
likely to elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 301,
100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980);
People v. Trujillo, 784 P.2d 788 (Colo. 1990).
In determining whether a person has been
subjected to custodial interrogation, courts must
consider the totality of the circumstances surrounding
the encounter. People v. Rivas, supra; People v.
Gonzales, supra. The determination of whether an
officer’s words or actions are reasonably likely to elicit
an incriminating response from the suspect turns
primarily upon the perceptions of the suspect, rather
than the intent of the officer. People v. Trujillo, supra.
However, the officer’s intent is still relevant because it
may bear on whether he should have known that his
words or actions were reasonably likely to elicit an
incriminating response. Rhode Island v. Innis, supra;
People v. Johnson, supra.
The trial court found, with support in the record,
that there were no misleading statements, compelling
influences, or psychological ploys evident in the
encounter and the investigating officer’s statements
could not be characterized as evocative.
At trial, the investigating officer testified that his
statements to defendant were merely introductory and
conversational and that he did not expect any
response from defendant. Indeed, he testified that his
intention was to wait until they had returned to Colorado
before any questioning began because the setting at the
New Mexico jail was not conducive to a proper interrogation.

15

There is no evidence that the officers were
aware, or were trying to take advantage, of any
particular susceptibility of defendant. Defendant, in
fact, had already spoken to his attorney and had
agreed with her not to make any statements to the
police until she was present.
Furthermore, while evasion is evidence of
consciousness of guilt, under the circumstances here,
defendant’s statement is not necessarily incriminating.
Rather, it can be equally construed as an
acknowledgment of his having been arrested eight
years after the victim’s death.
Thus, in considering the totality of
circumstances surrounding the encounter here, we
conclude that defendant’s statement was not the
product of an interrogation and the trial court did not
err in admitting it.
ECF No. 15, ex. N at 6-9.
Mr. Pena has failed to rebut by clear and convincing evidence the findings
of fact by the Colorado Court of Appeals. Hence, I accept as correct the findings
of fact by the state appeals court in rejecting Mr. Pena's Miranda argument. See
28 U.S.C. § 2254(e)(1). Based upon undisputed facts that Mr. Pena was in
custody at the time of the lead investigator’s statement, the state appeals court
turned its focus to the issue of whether the comment resulted from interrogation.
The state appellate court evaluated Mr. Pena’s claim under a state law totality-ofthe-circumstances test similar to the federal standard, as well as Miranda and
Innis, and determined that Mr. Pena’s response to the investigator’s statement
was not necessarily incriminating or the product of an interrogation. Based on
my review of the record, I do not find that the Colorado Court of Appeals decision
16

was contrary to, or an unreasonable application of, Supreme Court precedent,
nor do I conclude that the decision by the state appeals court was based on an
unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. See 28 U.S.C. § 2254(d).
Claim 2(d)
As his next claim, Mr. Pena alleges that the trial court’s admission of two
assaults violated his rights under the Confrontation Clause. The first assault (the
“sexual assault”) stemmed from the victim reporting to her aunt, a school
counselor, and to Weld County, Colorado, authorities that on August 6, 1992,
Mr. Pena allegedly forced her to have sex, resulting in Weld County charging
Mr. Pena with one count of sexual assault on a child, a charge which
investigating officers testified the victim later recanted and asked authorities to
withdraw. The charge remained pending at the time the victim disappeared. The
second assault (the “physical assault”), which occurred after the Weld County
sexual assault charges, stemmed from the victim disclosing to her mother and
aunt that, during an argument over the sexual assault charges, Mr. Pena kicked
her in the chest with hard-toed boots, bruising her as a result.
The Confrontation Clause of the Sixth Amendment provides: “In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” In Crawford v. Washington, 541 U.S. 36 (2004), the
United States Supreme Court held that a trial court's admission of testimonial
hearsay against a defendant at trial violates the defendant's confrontation rights
17

unless the witness is unavailable and there was a prior opportunity for
cross-examination. Although Crawford did not define testimonial precisely, id. at
68 (“We leave for another day any effort to spell out a comprehensive definition
of ‘testimonial.’”), the term encompasses formal statements to government
officers, including at a minimum statements during police interrogation and prior
testimony. See id. at 51-52, 68. “The Clause . . . does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” Id. at 59 n.9.
The Confrontation Clause applies only to testimonial hearsay. See Davis
v. Washington, 547 U.S. 813, 823-26 (2006). In so holding, the Davis Court
referred to its earlier statement in Crawford:
The text of the Confrontation Clause reflects this
focus [on testimonial hearsay]. It applies to
‘witnesses' against the accused—in other words,
those who ‘bear testimony.’ 1 N. Webster, An
American Dictionary of the English Language (1828).
‘Testimony,’ in turn, is typically ‘a solemn declaration
or affirmation made for the purpose of establishing or
proving some fact.’ Ibid. An accuser who makes a
formal statement to government officers bears
testimony in a sense that a person who makes a
casual remark to an acquaintance does not.
Id. at 823-24 (quoting Crawford, 541 U.S. at 51). The United States Court of
Appeals for the Tenth Circuit (Tenth Circuit) has defined a testimonial statement
as “a statement that a reasonable person in the position of the declarant would
objectively foresee might be used in the investigation or prosecution of a crime.”
United States v. Pablo, 625 F.3d 1285, 1291 (10th Cir. 2010).
18

Before trial, the prosecution filed a notice of intent to introduce evidence of
Mr. Pena’s prior sexual assault of the victim. R. vol. 1, 28-31, May 8, 2001. The
prosecution maintained the evidence of the sexual assault was probative of Mr.
Pena’s motive and malice, helpful to establish his identity as the victim’s
murderer, and properly was admitted as res gestae evidence that helped explain
the charged offense or, alternatively, as prior bad act evidence under Colo. R.
Evid. 404(b). ECF No. 15, ex. N at 10; R. vol 1, 29. At a hearing on the
prosecution’s motion and over defense objections, the trial court granted the
motion to admit the evidence. ECF No. 15, ex. N at 10-11; see also R. vol. 5, 57, Aug. 8, 2001.
After opening statements at trial, the defense asked the court to prohibit
the victim’s mother from testifying about what the victim told her concerning the
alleged prior physical assault. ECF No. 15, ex. N at 11; see also R. vol. 15, 3335, Dec. 11, 2001. The prosecution argued that, like evidence of the alleged
sexual assault, the victim’s statements were proper res gestae evidence of the
charged offense, would show that Mr. Pena and the victim had a heated
argument concerning the sexual assault charges, during which Mr. Pena hit and
kicked the victim in the chest with metal boots, and established a chain of events
ultimately concluding with the victim’s death as a result of Mr. Pena’s deliberate
actions. ECF No. 15, ex. N at 11; see also R. vol. 15, 35-38, Dec. 11, 2001.
The defense again objected, claiming that testimony concerning the fight
would be unfairly prejudicial and the incident was too remote in time and

19

unrelated to the criminal charges to be considered res gestae evidence. ECF
No. 15, ex. N at 11; see also R. vol. 15, 38-40, Dec. 11, 2001. The trial court
again disagreed and permitted the victim’s mother to testify as to the fight,
concluding that evidence of the fight was related to and explained the crime of
which Mr. Pena was accused. ECF No. 15, ex. N at 11-12; see also R. vol. 15,
40, Dec. 11, 2001.
In affirming, the Colorado Court of Appeals agreed that the victim’s out-ofcourt statements to police concerning the sexual assault, which included a taped
interview that described a forcible rape, were not testimonial, and therefore did
not violate the Confrontation Clause, since the statements were relevant without
regard to their truthfulness. ECF No. 15, ex. N at 15-17, 20-21. The state
appellate court also found that the statements concerning the physical assault,
although offered for their truth, ECF No. 15, ex. N at 17, were not testimonial,
and therefore did not violate the Confrontation Clause, because they were made
to relatives and not formal or sworn statements made to law enforcement officers
or other public officials “with any expectation that they would be used in any
future proceedings,” and did not result from questioning or interrogation. Id. at
20.
Again, the state courts’ factual findings are afforded a presumption of
correctness on habeas review. Mr. Pena does not allege, let alone establish by
clear and convincing evidence, that the Colorado Court of Appeals’ factual
conclusions were unreasonable, given the trial evidence. Applying Crawford, the

20

state appeals court determined that the statements concerning the assaults did
not qualify as testimonial. Based on my review of the record, I do not find that
the state appellate court’s resolution of Mr. Pena’s Confrontation Clause claim
was contrary to or an reasonable application of controlling Supreme Court law.
Mr. Pena, therefore, is not entitled to federal habeas relief on this claim.
Claim 6
As his sixth and final remaining claim, Mr. Pena alleges that he received
ineffective assistance of counsel. He specifically alleges that:
a. Trial counsel failed to object to (and request
a mistrial based on) a witness’s references to rumors
that members of applicant’s family had threatened to
kill other witnesses. ECF No. 1 at 50-56.
b. Trial counsel failed to object to “various
hearsay and other act evidence,” specifically,
i.

The kicking incident,

ii.

Evidence that applicant’s uncle beat his
girlfriend, and

iii.

Evidence that applicant’s brother
assaulted his girlfriend. ECF No. 1 at
56-57.

c.
Trial counsel failed to explain that Oscar
Prospero’s death was unrelated to the victim’s
murder. ECF No. 1 at 59-62.
d.
The cumulative effect of counsel’s
unprofessional errors caused sufficient prejudice to
require a new trial. ECF No. 1 at 60-61.
It was clearly established when Mr. Pena was convicted that a defendant
has a right to effective assistance of counsel. See Strickland v. Washington, 466
21

U.S. 668 (1984). To establish that counsel was ineffective, Mr. Pena must
demonstrate both that counsel's performance fell below an objective standard of
reasonableness and that counsel's deficient performance resulted in prejudice to
his defense. See id. at 687. “Judicial scrutiny of counsel's performance must be
highly deferential.” Id. at 689. There is “a strong presumption” that counsel's
performance falls within the range of “reasonable professional assistance.” Id. It
is Mr. Pena's burden to overcome this presumption by showing that the alleged
errors were not sound strategy under the circumstances. See id. “For counsel's
performance to be constitutionally ineffective, it must have been completely
unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir.
1999).
Under the prejudice prong, Mr. Pena must establish “a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. In determining whether Mr. Pena has established prejudice, the
Court must look at the totality of the evidence presented at trial and not just the
evidence that is helpful to Applicant. See Boyd, 179 F.3d at 914.
Ineffective-assistance-of-counsel claims are mixed questions of law and
fact. See Strickland, 466 U.S. at 698. Conclusory allegations that counsel was
ineffective are not sufficient to warrant habeas relief. See Humphreys v. Gibson,
261 F.3d 1016, 1022 n.2 (10th Cir. 2001). If Mr. Pena fails to satisfy either prong

22

of the Strickland test, the ineffective assistance of counsel claims must be
dismissed. See Strickland, 466 U.S. at 697.
Here, the Colorado Court of Appeals evaluated Mr. Pena’s ineffectiveassistance-of-counsel claims under Strickland. ECF No. 15, ex. E at 4-5.
Claim 6(a)
I first will address claim 6(a) that trial counsel failed to object to (and
request a mistrial based on) a witness’s references to rumors that members of
applicant’s family had threatened to kill other witnesses.
At trial, the prosecution asked its witness, Christine Cantu, Mr. Pena’s
former girlfriend, whether she was uncomfortable testifying. ECF No. 15, ex. E at
6. The witness responded affirmatively, saying, “there [are] rumors going around
from [Pena]’s brothers . . . saying anyone that testifies against [Pena] that they
are going to kill them like how [Pena] killed [C.Z.].” Id.; see also R. vol. 16, 178,
Dec. 12, 2001; ECF No. 15, ex. G (people’s answer brief) at 32-33. Mr. Pena’s
counsel did not object to this statement. ECF No. 15, ex. E at 6; see also R. vol.
16, 178, Dec. 12, 2001; ECF No. 15, ex. G at 32-33.
In resolving the claim, the state appeals court looked to counsel’s
postconviction testimony, in which she admitted Christine Cantu’s statement
caught her off guard, shocked her, and came up so quickly she did not object.
ECF No. 15, ex. E at 8. Counsel also explained she chose not to object or seek
a mistrial because she (1) wanted to avoid drawing the jury’s attention to
Christine Cantu’s statement, (2) believed she could undermine and discredit

23

Christine Cantu’s statement on cross-examination, and (3) liked the jury in the
ongoing trial. Id.
Applying the Strickland standard, the state appeals court agreed with the
postconviction court’s conclusion that Mr. Pena failed to prove counsel’s
decisions not to object or request a mistrial were not strategic. Based on my
review of the record, I do not find that the Colorado Court of Appeals’ decision
was contrary to, or an unreasonable application of, Supreme Court law. Claim
6(a) does not warrant habeas corpus relief.
Claim 6(b)
In claim 6(b), Mr. Pena contends trial counsel failed to object to “various
hearsay and other act evidence,” specifically (i) the kicking incident, (ii) evidence
that Mr. Pena’s uncle beat his girlfriend, and (iii) evidence that Mr. Pena’s brother
assaulted his girlfriend.
Claim 6(b)(i)
I first will address Mr. Pena’s contention that trial counsel failed to object
to hearsay evidence of the kicking incident. As discussed above in claim 2(d),
the defense did object to the kicking incident, claiming that testimony concerning
the incident would be unfairly prejudicial and the incident was too remote in time
and unrelated to the criminal charges to be considered res gestae evidence.
ECF No. 15, ex. N at 11; see also R. vol. 15, 38-40, Dec. 11, 2001. The
objection was unsuccessful. The trial court disagreed and permitted the victim's
mother to testify as to the fight, concluding that evidence of the fight was related

24

to and explained the crime of which Mr. Pena was accused. ECF No. 15, ex. N
at 11-12; see also R. vol. 15, 40, Dec. 11, 2001.
On direct appeal, the Colorado Court of Appeals, while holding that
statements as to the kicking incident did not violate the Confrontation Clause as
interpreted in Crawford, found the physical assault statements to be
inadmissable as hearsay, because they were offered for their truth and not
admissible under any hearsay exception. ECF No. 15, ex. N at 22. The state
appeals court ultimately concluded the error in admitting statements concerning
the kicking incident was not plain error because the incident was cumulative of
other, properly admitted evidence of Mr. Pena’s animosity toward C.Z., including
his statements to others that he was going to kill her. Id. at 22-23; see also ECF
No. 15, ex. E at 10-11.
On postconviction review, the state appeals court rejected the argument
Mr. Pena raises in the instant application that if trial counsel had lodged a
hearsay objection (1) the Colorado Court of Appeals would have applied
harmless error, rather than plain error, to his hearsay claim, (2) the Colorado
Court of Appeals would have found that admission of hearsay was not harmless
error; and (3) counsel’s failure to make the hearsay objection prejudiced him.
ECF No. 1 at 59.
The Colorado Court of Appeals, assuming that the absence of a hearsay
objection was deficient performance under Strickland, concluded that any
deficiency did not prejudice Mr. Pena. Specifically, the court reasoned that:

25

The postconviction court found, and we agree,
that there was considerable information that pointed
to Pena’s animosity toward C.Z. as a result of the
sexual assault report, including evidence that he
made several attempts to have the charges dropped
and made statements to several people that he was
mad at C.Z. and would kill her. In light of this
evidence, even under a harmless error standard of
review, any prejudice caused by the inadmissible
hearsay that Pena had kicked C.Z. in the chest was
merely cumulative of other properly admitted
evidence that Pena was so angry with C.Z. for
reporting the sexual assault that he intended to kill her
if the charges were not dropped.
ECF No. 15, ex. E at 11.
Applying Strickland, the state appeals court agreed with the postconviction
court’s conclusion that Mr. Pena failed, under the prejudice prong, to establish “a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694. Based
on my review of the record, I do not find that the Colorado Court of Appeals’
decision was contrary to, or an unreasonable application of, Supreme Court law.
Since Mr. Pena fails to satisfy the prejudice prong of the Strickland test, the
ineffective-assistance-of-counsel claim must be dismissed. See id. at 697.
Claim 6(b)(i) does not warrant habeas corpus relief.
Claims 6(b)(ii) and 6(b)(iii)
I next will address Applicant’s contentions that trial counsel failed to object
to evidence that Mr. Pena’s uncle beat his girlfriend (claim 6(b)(ii)) and that
Mr. Pena’s brother assaulted his girlfriend (claim 6(b)(iii)).

26

These claims concern the testimony of two prosecution witnesses, Judy
Diaz and Sara Bilyeu. As to claim 6(b)(ii), Judy Diaz testified that, on the night of
December 12, 1992, Mr. Pena told her boyfriend at the time, who is Mr. Pena’s
uncle, Mario Garcia, that he “might have” killed somebody and that the body was
at the farm of his other uncle, Natividad or “Nati.” ECF No. 1 at 46-47; see also
R. vol. 17, 66-67, 81, 85, Dec. 13, 2001. She then testified that her boyfriend
warned her not to say anything or he would kill her, R. vol. 17, 72, 83-84, Dec.
13, 2001, and that Mario Garcia beat her in the past. Id. at 59, 85. As to claim
6(b)(iii), Sara Bilyeu testified that her ex-husband, Mr. Pena’s brother Jamie
Pena, physically abused her. ECF No. 1 at 45-46; see also R. vol. 17, 271-72,
275-77, Dec. 13, 2001.
Mr. Pena raised these claims in his postconviction appeal, ECF No. 15,
ex. H (Jose Pena’s opening brief), asserting that the state conviction court
applied the wrong standard of deficient performance in assessing them. ECF
No. 15, ex. H at 23-24. While Mr. Pena acknowledges that the postconviction
court was familiar with the first prong of Strickland, he maintains that the court
stated it incorrectly. Id. at 23; ECF No. 1 at 58-59. What Mr. Pena – and the
state appeals court – do not discuss is how, if at all, defense counsel’s failure to
object to the testimony by these prosecution witnesses prejudiced the outcome of
the trial, the second prong of the Strickland analysis.
As previously stated, a claim may be adjudicated on the merits in state
court even in the absence of a statement of reasons by the state court for

27

rejecting the claim. Richter, 131 S. Ct. at 784-85. Richter is applicable when a
state-court opinion addresses some but not all of those claims. Johnson, 133 S.
Ct. at 1094-98. When a state court rules against a defendant in an opinion that
rejects some of the defendant’s claims but does not expressly address a federal
claim, I must presume, subject to rebuttal, that the federal claim was adjudicated
on the merits. Id. at 1094-96. I should not assume that any unaddressed federal
claim simply was overlooked because a state court does not uniformly discuss
separately every claim referenced by a defendant. See id.
Therefore, pursuant to Johnson, the deferential standards of § 2254(d)
apply. Despite the fact that the state courts did not expressly address the claim
that trial counsel violated the Strickland prejudice standard by failing to object to
Judy Diaz and Sara Bilyeu’s testimony, I will assume the claim was adjudicated
on its merits.
I have reviewed the testimony of these prosecution witnesses. Even if
defense counsel should have objected to the testimony of the prosecution
witnesses, it is not reasonably probable that their testimony affected the outcome
of the trial. See Strickland, 466 U.S. at 694 (under the prejudice prong, a
defendant must establish “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”).
Judy Diaz and Sara Bilyeu’s testimony was not relevant to the acts
committed by Mr. Pena. Judy Diaz’s testimony, R. vol. 17, 54-86, Dec. 13, 2001,
included discussion of her prior convictions, statements she made to the police

28

who contacted her about her knowledge of the victim’s death, how she knew
Mr. Pena and his extended family, what she overheard the night of the twelfth of
December 1992 when Mr. Pena showed up at the house she then shared with
Mario Garcia, how Mario Garcia hit her, and that she was not trying to retaliate
against Mr. Pena through her testimony. Sara Bilyeu’s testimony, R. vol. 17,
269-278, December 13, 2001, included how she and Jamie Pena had a child
together and were divorced because he physically abused her, how she knew
Mr. Pena’s extended family, how she hated and was afraid of Jamie Pena,
whether she ever heard anything from him about the victim, and how she was
testifying because she believed it was “the right thing to do.” Id. at 276.
My review of the state court record reveals that this testimony is not
relevant to Mr. Pena’s conviction for the murder of C.Z. Moreover, there was
substantial evidence without these prosecution witnesses to convict Mr. Pena.
On direct appeal, the Colorado Court of Appeals, found corroborating evidence
from Mr. Pena’s mother for the prosecution’s theory that the victim’s allegations
of sexual assault and her apparent inability to get the resulting charges
dismissed were a source of anger and frustration to Mr. Pena, and constituted a
probable motive for the killing. ECF No. 15, ex. N at 16-17. Mr. Pena’s mother
testified as to the efforts undertaken by Mr. Pena, with her participation, in
attempting to convince the victim and law-enforcement officers that the charges
should be dismissed. Id. at 17. The state appeals court found “[t]here was other
properly admitted and ample evidence of Mr. Pena’s animosity toward the victim

29

arising from the then pending sexual assault charges, including statements to
others that [Mr. Pena] was going to kill the victim and efforts to get the victim to
have the charges dismissed.” Id. at 17-18. The appellate court further found that
the error of admitting the physical assault statements for their truth “did not . . .
cast serious doubt upon the fairness of trial proceedings or the validity of the
verdict,” id., and that the statements were offered “to show a history of the
animosity [Mr. Pena] had against the victim that was predicated on the pending
sexual assault charges and her unwillingness or inability to get them dismissed.”
Id. at 22-23.
On postconviction appeal, the Colorado Court of Appeals agreed with the
postconviction court that:
[T]here was considerable information that
pointed to Pena’s animosity towards C.Z. as a result
of the sexual assault report, including evidence that
he made several attempts to have the charges
dropped and made statements to several people that
he was mad at C.Z. and would kill her.
ECF No. 15, ex. E at 11.
Because testimony of Judy Diaz and Sara Bilyeu does not appear to be
relevant to the acts committed by Mr. Pena, I do not find that the testimony
violated the prejudice prong of the Strickland standard. Mr. Pena has failed to
establish “a reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at
694. Based on my review of the record, I do not find that the Colorado Court of

30

Appeals’ decisions were contrary to Supreme Court law. Claims 6(a)(b)(ii) and
(b)(iii) do not warrant habeas corpus relief.
Claim 6(c)
In claim 6(c) Mr. Pena faults defense counsel for failing to clarify that the
death of Oscar Prospero (O.P.) before trial was unrelated to the victim’s murder
and not attributable to applicant. ECF No. 1 at 59-62; see also R. vol. 18, 172,
Dec. 14, 2001. Oscar Prospero had been seen leaving a bar with Jose Pena and
the victim on the evening of December 12, 1992. R. vol. 18, 164, Dec. 14, 2001.
On postconviction review, the Colorado Court of Appeals found the following
facts to be relevant to the issue:
O.P. was with C.Z. and Pena the night she was
last seen alive. After C.Z.’s body was found, police
interviewed O.P. several times. In 1994,
approximately one year later, O.P. was injured in a
car accident that left him a paraplegic. In 2001, O.P.
underwent several surgeries and developed health
complications. He was able to testify at Pena’s
preliminary hearing, but died approximately five
months before trial.
Because O.P. was not available to testify,
O.P.’s statements to police were excluded at trial.
During trial, the prosecutor asked the detective who
had interviewed O.P., “Where is O.P. now?” To which
the detective responded, “[O.P.] died April 17th of
2001 at the Platte Valley Medical Center.” During its
deliberations, the jury asked the court: “What
happened to [O.P.]? How did he die? And was he
ever questioned?”
The court instructed the jury, “You have
received all of the evidence that you are going to
receive, at this point. You have to decide based on
the evidence you have.”
31

ECF No. 15, ex. E at 12-13.
In rejecting Mr. Pena’s ineffective-assistance-of-counsel claim, the
Colorado Court of Appeals, like the postconviction court, treated counsel’s failure
to clarify that Oscar Prospero’s death was not attributable to Applicant as “at
most a strategic error,” ECF No. 15, ex. E at 13, and found that Mr. Pena had
failed to demonstrate he was prejudiced by counsel’s error. The appeals court
concluded Mr. Pena’s “assumption” that the jury’s questions indicated their belief
he had killed Oscar Prospero was “speculative at best” and “insufficient to satisfy
his burden of proving facts that would allow a postconviction court to find that he
was prejudiced by his counsel’s failure to clarify that O.P. died of causes
unrelated to the case.” Id. Applying the Strickland prejudice standard, id. at 14,
the state appeals court agreed with the postconviction court’s conclusion that
Mr. Pena failed to demonstrate “the outcome of the proceeding would have been
different if trial counsel had clarified that neither Pena nor his family was involved
in O.P.’s death.” Based on my review of the record, I do not find that the
Colorado Court of Appeals’ decision was contrary to, or an unreasonable
application of, Supreme Court law. Claim 6(c) does not warrant habeas corpus
relief.
Claim 6(d)
This claim argues that the cumulative effect of counsel's unprofessional
errors caused sufficient prejudice to require a new trial.

32

First, the Court notes that the Supreme Court has not directly addressed
the applicability of the cumulative-error doctrine in the context of an
ineffective-assistance-of-counsel claim. See Forrest v. Florida Dep't of
Corrections, 342 F. App'x 560, 564-65 (11th Cir. 2009) (citing United States v.
Cronic, 466 U.S. 648, 659 n.26 (1984) (“[T]here is generally no basis for finding a
Sixth Amendment violation unless the accused can show how specific errors of
counsel undermined the reliability of the finding of guilt.”); Lorraine v. Coyle, 291
F.3d 416, 447 (6th Cir. 2002) (“The Supreme Court has not held that distinct
constitutional claims can be cumulated to grant habeas relief.”); see also Darks v.
Mullin, 327 F.3d 1001, 1017 (10th Cir. 2003) (finding it unnecessary to address
the issue of cumulative error as a separate constitutional ground for granting
habeas relief).
The Tenth Circuit has held that a cumulative-error analysis aggregates all
errors that individually have been found to be harmless, and therefore not
reversible, and it analyzes whether their cumulative effect on the outcome of the
trial is such that collectively they can no longer be determined to be harmless.
See Cargle v. Mullins, 317 F.3d 1196, 1206 (10th Cir. 2003); see also Welch v.
Sirmons, 451 F.3d 675, 710 (10th Cir. 2006) (same). Thus, “‘to deny
cumulative-error consideration of claims unless they have first satisfied their
individual substantive standards for actionable prejudice would render the
cumulative error inquiry meaningless, since it [would] . . . be predicated only
upon individual error already requiring reversal’”. Cargle, 317 F.3d at 1207

33

(internal quotation marks and citation omitted); see also Moore v. Reynolds, 153
F.3d 1086, 1113 (10th Cir. 1998) (“[c]umulative error analysis applies where
there are two or more actual errors; it does not apply to the cumulative effect of
non-errors”).
The Colorado Court of Appeals noted that the “[c]umulative error analysis
aggregates each of the individual errors that have been deemed harmless and
analyzes whether their cumulative effect is such that they cannot be deemed
harmless.” ECF No. 15, ex. E at 15. The state appeals court, having reviewed
the trial transcript in its entirety, concluded that the assumed trial errors of
counsel “were neither so numerous nor so prejudicial as to have deprived
defendant of a fair trial.” Id.
Here, the Colorado Court of Appeals found no deficient performance as to
claim 6(a). It also found no prejudice as to claims 6(b)(ii) and (iii) and 6(c). That
leaves only claim 6(b)(i), i.e., counsel’s failure to object to hearsay evidence of
the kicking incident. Even assuming the absence of a hearsay objection was
deficient performance under Strickland, the Colorado Court of Appeals again
concluded the deficiency did not prejudice Mr. Pena. There are not two or more
actual errors that combine to satisfy a cumulative-error claim. Although the state
appellate court applied a state law standard in addressing Mr. Pena’s cumulativeerror claim, that standard was the same as the Tenth Circuit standard. Mr.
Pena’s cumulative-error claim has failed to meet that Tenth Circuit standard.
Claim 6(d) is meritless.

34

IV. Conclusion
For the reasons stated above, habeas corpus relief will be denied.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be 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 Mr. Pena files a notice of appeal he also
must 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.
Accordingly, it is
ORDERED that the motion titled “Motion to Reconsider Dismissal of
Claims 2(c) and 4 and Objection to Court’s Partial Dismissal of Those Claims”
(ECF No. 23) that Applicant, Jose Arturo Pena, filed on November 7, 2012, is
DENIED. It is
FURTHER ORDERED that the habeas corpus application is DENIED, and
the action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that each party shall bear his own costs and
attorney's fees. It is
FURTHER ORDERED that no certificate of appealability will issue
because Applicant, Jose Arturo Pena, has not made a substantial showing of the
denial of a constitutional right. It is

35

FURTHER ORDERED that leave to proceed in forma pauperis on appeal
is DENIED.
Dated: May 28, 2013.
BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

36