Pena v. Hartley et al

Filing 39

ORDER re: 37 USCA Mandate. Accordingly, it is ORDERED that this civil action is reinstated pursuant to the mandate of the United States Court of Appeals for the Tenth Circuit filed on October 31, 2014. It is FURTHER ORDERED that within thirty days, Respondents are directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addresses the merits of claims 2(c) and 4. It is FURTHER ORDERED that a traverse, if any, and only a traverse, may be filed within thirty days of the filing of the answer. by Judge Wiley Y. Daniel on 12/1/2014. (evana, )

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 REINSTATING CASE AND FOR ANSWER

Pursuant to the mandate of the United States Court of Appeals for the Tenth
Circuit filed on October 31, 2014 (ECF No. 37), this civil action will be reinstated.
Respondents will be directed to file an answer in compliance with Rule 5 of the
Rules Governing Section 2254 Cases that fully addresses the merits of claims 2(c) and
4, both of which involve the admission of evidence. In claim 2(c), Applicant, Jose Arturo
Pena, argued against the admission of the sexual and physical assault evidence as
violating his due process right to a fair trial. In claim 4, he argued that the introduction
of inadmissible and prejudicial evidence deprived him of his right to a fair trial. He
specifically argued against the admission of evidence that
(1) his two brothers were threatening to kill witnesses “like
how [Pena] killed [Zamora]”; (2) his brother Jamie believed
Pena had killed Zamora; (3) Jamie would provide his driver’s
license to help Pena and his other brother avoid detection;
(4) Jamie and Pena’s uncle had physically assaulted their
former girlfriends; and (5) Oscar Prospero (the individual
who had left the bar with Pena and Zamora the night she

was killed) had died in April 2001,shortly after Pena was
arrested (but the jury was not told that he died from
complications of a car accident thereby allowing it to
erroneously infer he was killed at Pena’s direction).
ECF No. 36 at 3-4 n.5.
Accordingly, it is
ORDERED that this civil action is reinstated pursuant to the mandate of the
United States Court of Appeals for the Tenth Circuit filed on October 31, 2014. It is
FURTHER ORDERED that within thirty days, Respondents are directed to file
an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that
fully addresses the merits of claims 2(c) and 4. It is
FURTHER ORDERED that a traverse, if any, and only a traverse, may be filed
within thirty days of the filing of the answer.
Dated: December 1, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge