Arellano v. Medina et al

Filing 31

ORDER. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DENIED and this case is DISMISSED WITH PREJUDICE. ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c) by 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-01693-WYD
WILLIAM ARELLANO,
Applicant,
v.
ANGEL MEDINA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before me on the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”) filed pro se by Applicant, William
Arellano. Respondents have filed an Answer (ECF No. 22) (“the Answer”), and Mr.
Arellano has filed a Traverse to Respondents’ Answer to Habeas Application (ECF No.
24) (“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. Arellano is a prisoner in the custody of the Colorado Department of
Corrections at the Limon Correctional Facility in Limon, Colorado. Mr. Arellano is
challenging the validity of his conviction and sentence in Pueblo County District Court
case number 03CR383.

Mr. Arellano was convicted by a jury of theft from an at-risk adult, two counts of
attempted theft from an at-risk adult, and three counts of second degree burglary of a
dwelling. Mr. Arellano’s convictions stemmed from a series of incidents in which he
entered or remained in the homes of elderly women without permission and, while the
victims were distracted, took or attempted to take jewelry or other items of value from
their bedrooms.
Mr. Arellano also was adjudicated to be an habitual criminal and he was
sentenced to a total term of 144 years in prison. The Colorado Court of Appeals
affirmed the judgment of conviction on direct appeal. See People v. Arellano, No.
04CA1307 (Colo. App. Sept. 7, 2006) (unpublished) (ECF No. 14-1) (Arellano I). On
May 14, 2007, the Colorado Supreme Court denied Mr. Arellano’s petition for writ of
certiorari on direct appeal. (See ECF No. 14-3.)
On July 10, 2007, Mr. Arellano filed a postconviction motion pursuant to Rule
35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 14-2 at 11.) The trial
court denied the Rule 35(c) motion on March 4, 2010. (See id. at 9.) The Colorado
Court of Appeals subsequently affirmed the trial court’s order denying the Rule 35(c)
motion. See People v. Arellano, No. 10CA0754 (Colo. App. Oct. 6, 2011) (unpublished)
(ECF No. 14-11) (Arellano II). On February 6, 2012, the Colorado Supreme Court
denied Mr. Arellano’s petition for writ of certiorari in the state court postconviction
proceedings. (See ECF No. 14-4.)
Mr. Arellano asserts five numbered claims for relief in the Application, two of
which have subparts. I previously entered an Order to Dismiss in Part (ECF No. 21) in

2

which I dismissed claims 2, 4(a) - 4(d), and 5 as unexhausted and procedurally barred.
As a result, only claims 1, 3(a), 3(b), 4(e), and 4(f) remain pending before me.
Mr. Arellano alleges in his remaining claims that:
1.

His Sixth Amendment right to a fair trial before an impartial jury was
violated because the trial court denied a challenge for cause to a biased
seventy-nine-year-old juror.

3.

His Sixth and Fourteenth Amendment rights were violated because (a)
there was insufficient evidence to support his adjudication as an habitual
criminal and (b) the trial court’s allowance of documentary evidence under
the business records exception in the habitual criminal proceedings denied
him the opportunity to confront the witnesses against him.

4.

His Sixth and Fourteenth Amendment right to the effective assistance of
counsel was violated because: (e) trial counsel failed to seek replacement
of an allegedly biased juror who overheard a comment that Mr. Arellano
previously had served time1; and (f) counsel on direct appeal failed to
raise as an issue the trial court’s failure to sua sponte declare a mistrial
when a prospective juror exposed other jurors to the fact that Mr. Arellano
previously had served time.

Respondents do not argue that the remaining claims are untimely and I have
determined they are exhausted.
II. STANDARD OF REVIEW
I must construe the Application and the Traverse liberally because Mr. Arellano is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972)

1

In the Application, Mr. Arellano’s fifth argument that trial counsel was ineffective, designated in
this order as claim 4(e), consists of an allegation that trial counsel failed to seek replacement of a juror,
Mr. Arellano’s ex-brother-in-law, who did not actually serve on the jury but allegedly exposed members of
the jury pool to the fact that Mr. Arellano had been incarcerated since he was a juvenile. Respondents
have construed Mr. Arellano’s fifth argument in the manner set forth in claim 4(e) in this order and
Mr. Arellano has not objected to that construction of claim 4(e). Therefore, I will consider claim 4(e) as
construed by Respondents.

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(per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, I 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) 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. Arellano bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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, I “owe

4

deference to the state court’s result, even if its reasoning is not expressly stated.”
Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, I “must uphold the
state court’s summary decision unless [my] independent review of the record and
pertinent federal law persuades [me] 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. “This ‘independent review’ should
be distinguished from a full de novo review of the petitioner’s claims.” Id.
I review claims of legal error and mixed questions of law and fact pursuant to 28
U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question I must answer under § 2254(d)(1) is whether Mr. Arellano seeks to
apply a rule of law that was clearly established by the Supreme Court at the time his
conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly
established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court decision.” Id. at 412.
Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of my inquiry pursuant to § 2254(d)(1). See id. at 1018.

5

If a clearly established rule of federal law is implicated, I must determine whether
the state court’s decision was contrary to or an unreasonable application of that clearly
established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly
established federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases”; or (b) “the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that]
precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08. Additionally, we have recognized that an
unreasonable application may occur if the state court either
unreasonably extends, or unreasonably refuses to extend, a
legal principle from Supreme Court precedent to a new
context where it should apply.
House, 527 F.3d at 1018.
My inquiry pursuant to the “unreasonable application” clause is an objective
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

6

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.
Harrington, 131 S. Ct. at 786 (internal citation and quotation marks omitted). In
conducting this analysis, I “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
Harrington, 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.
Harrington, 131 S. Ct. 786-87.

7

I review 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 me 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), I must presume that the state court’s
factual determinations are correct and Mr. Arellano 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)).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, I must review the claim de novo and the deferential standards
of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
III. MERITS OF APPLICANT’S REMAINING CLAIMS
A. Claim 1
As set forth above, Mr. Arellano contends in claim 1 that his Sixth Amendment
right to a fair trial before an impartial jury was violated because the trial court denied a
challenge for cause to a biased seventy-nine-year-old juror. The seventy-nine-year-old
juror in question was Juror Phelps. (See State Court R., Trial Tr. 1/6/04 at pp.20-24 &
36-392; see also ECF No. 14-5 at 13-16.) Mr. Arellano alleges in support of claim 1 that
2

The state court record includes two transcripts that encompass the trial court proceedings on
January 6, 2004, including one bound volume labeled volume 2 and another transcript identified as
03CR383 ARELLANO 01-06-04 on a compact disk labeled disk 2. The transcript that includes the
relevant portions of voir dire pertinent to Juror Phelps is on disk 2.

8

Juror Phelps stated during voir dire he could not be fair because he had been the victim
of a burglary in the past and he would be sympathetic to the elderly victims in
Mr. Arellano’s case. Mr. Arellano also alleges in the Application that he “was unable to
remove the juror he had challenged for cause.” (ECF No. 1 at 5.) However, the record
is clear that, after the trial court denied Mr. Arellano’s challenge for cause of Juror
Phelps, Mr. Arellano “used a peremptory challenge to remove him.” (ECF No. 14-1 at
3-4; see also State Court R., Trial Tr. 1/6/04 at p.56.) Respondents argue that claim 1
lacks merit and must be dismissed because Juror Phelps did not serve on the jury that
ultimately returned a guilty verdict.
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, I must focus on the jurors who ultimately deliberated and decided
Mr. Arellano’s fate. See Ross, 487 U.S. at 86.
I find that Mr. Arellano is not entitled to relief with respect to claim 1 because, as
noted above, the record is clear that he used a peremptory challenge to excuse Juror
Phelps after the trial court denied the defense challenge for cause. Thus, Mr. Arellano
cured any constitutional error that may have occurred when the trial court refused to

9

remove Juror Phelps for cause. See Ross, 487 U.S. at 88. The fact that Mr. Arellano
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
Mr. Arellano alleges in claim 3 that his Sixth and Fourteenth Amendment rights
were violated because (a) there was insufficient evidence to support his adjudication as
an habitual criminal and (b) the trial court’s allowance of documentary evidence under
the business records exception in the habitual criminal proceedings denied him the
opportunity to confront the witnesses against him. The factual background for both
claims 3(a) and 3(b) was described by the Colorado Court of Appeals on direct appeal
as follows:
Defendant was charged as an habitual criminal under
the following provision:
Every person convicted in this state of
any felony, who has been three times
previously convicted, upon charges separately
brought and tried, and arising out of separate
and distinct criminal episodes, either in this
state or elsewhere, of a felony . . . shall be
adjudged an habitual criminal and shall be
punished for the felony offense of which such
person is convicted by imprisonment in the
department of corrections for a term of four
times the maximum of the presumptive range
pursuant to section 18-1.3-401 for the class of
felony of which such person is convicted. Such
former conviction or convictions and judgment
or judgments shall be set forth in apt words in
the indictment or information.
Section 18-1.3-801(2), C.R.S. 2005.

10

The information alleged defendant had previously
been convicted of three felonies, including two separate
convictions for second degree burglary of a dwelling and one
for attempted escape.
To prove these allegations, the prosecution called a
parole officer, who identified defendant as the person he had
supervised. The parole officer also identified a set of
records that had been certified by the custodian of offender
records for the Department of Corrections (DOC) (the pen
pack). In addition to the certification of the custodian, the
pen pack contained the certification of a district court judge
verifying the custodian’s authority and signature, as well as a
certification by the clerk of court, under seal, verifying the
district judge’s authority and signature.
The pen pack contained two photographs of
defendant (taken in 1993 and 2001) bearing his DOC inmate
number, as well as copies of mittimuses for all three of the
charged prior convictions. The parole officer further testified
that the DOC inmate number and case numbers in the pen
pack corresponded with the information contained in his own
file relating to defendant.
Over defendant’s objection, the trial court admitted
the pen pack as a self-authenticating document pursuant to
CRE 902 (although the trial court did not state on what basis
it was overruling defendant’s hearsay objection, it appears
the court agreed with the prosecution’s position that the pen
pack was admissible as public record pursuant to CRE
803(8)). Based on this evidence, the trial court found the
People had proved the habitual criminal counts beyond a
reasonable doubt.
Arellano I, slip op. at 11-13 (ECF No. 14-1 at 12-14).
Mr. Arellano specifically asserts in claim 3(a) that there was insufficient evidence
to support his adjudication as an habitual criminal. The parties agree that, under
Colorado law, “[t]he prosecuting attorney has the burden of proving beyond a

11

reasonable doubt that the defendant has been previously convicted as alleged.” See
Colo. Rev. Stat. § 18-1.3-803(4)(b).
The standard for sufficiency of the evidence, which was clearly established when
Mr. Arellano was adjudicated to be an habitual criminal, is set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court held that “the relevant
question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. at 319. “This familiar standard gives full play to
the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.
“Sufficiency of the evidence is a mixed question of law and fact.” Maynard, 468 F.3d at
673. Therefore, I must apply both § 2254(d)(1) and (d)(2) and “ask whether the facts
are correct and whether the law was properly applied to the facts.” Id.
The Colorado Court of Appeals applied this clearly-established federal law and
rejected Mr. Arellano’s claim challenging the sufficiency of the evidence. The state
court specifically determined that “the mittimuses and photographs contained in the pen
pack, together with the testimony of the parole officer, were sufficient to prove beyond a
reasonable doubt that defendant was the person who had sustained the three prior
convictions alleged in the information.” Arellano I at 19 (ECF No. 14-1 at 20).
Mr. Arellano argues in the Traverse that there was insufficient evidence to
support his adjudication as an habitual criminal because the pen packs should not have

12

been admitted as evidence against him for the reasons set forth in claim 3(b).
According to Mr. Arellano,
if we are faced with Mr. Arellano’s confrontation rights being
violated, and all the evidence being suppressed, i.e., all the
pen packs, as well as the testimony of the probation officer
(but for his testimony of the offense he allegedly supervised
Mr. Arellano on), there was no evidence to convict
Mr. Arellano of being an habitual criminal.
(ECF No. 24 at 8.) Therefore, because claim 3(a) is contingent on the success of claim
3(b), I will proceed to address the merits of claim 3(b).
Mr. Arellano contends in claim 3(b) that the trial court’s allowance of
documentary evidence under the business records exception in the habitual criminal
proceedings denied him the opportunity to confront the witnesses against him. The
right of an accused to confront the witnesses against him is guaranteed by the Sixth
Amendment to the United States Constitution and applies in both federal and state
prosecutions. See Stevens v. Ortiz, 465 F.3d 1229, 1235 (10th Cir. 2006). “The central
concern of the Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845 (1990).
In Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the United States
Supreme Court held that the Confrontation Clause bars the introduction into evidence of
out-of-court statements that are testimonial in nature unless the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness, regardless of
whether the statements are deemed reliable. However, the Confrontation Clause has

13

no application to out-of-court nontestimonial statements. See Whorton v. Bockting, 549
U.S. 406, 420 (2007).
The Colorado Court of Appeals determined that Mr. Arellano’s confrontation
rights were not violated because “a DOC pen pack is an official record of a type not
subject to the requirements of Crawford and the affidavits certifying the authenticity of
such documents do not contain testimonial statements within the meaning of Crawford.”
(ECF No. 14-1 at 15.) This determination is not an unreasonable application of
Crawford because public records not prepared as part of a criminal prosecution, such
as the records at issue in this action, are not testimonial. To be testimonial, a statement
must have a “primary purpose” of “establish[ing] or prov[ing] past events potentially
relevant to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
Under this definition of testimonial, it is clear that admission into evidence of the public
records at issue in the instant action does not implicate the Confrontation Clause. See
United States v. Weiland, 420 F.3d 1062, 1076-77 (9th Cir. 2005) (criminal judgment
admissible to show defendant’s prior convictions); see also United States v. Watson,
650 F.3d 1084, 1090 n.3 (8th Cir. 2011) (penitentiary records containing booking
photographs and fingerprint cards that are admissible as self-authenticating public
records do not implicate the Confrontation Clause).
Mr. Arellano’s reliance on Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011),
and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), is misplaced because
those cases, which were decided after Mr. Arellano’s conviction became final in 2007,
were not clearly established law at the relevant time. In any event, the Supreme Court

14

in Melendez-Diaz recognized that “[b]usiness and public records are generally
admissible absent confrontation . . . because – having been created for the
administration of an entity’s affairs and not for the purpose of establishing or proving
some fact at trial – they are not testimonial.” Melendez-Diaz, 557 U.S. at 324.
Because the state court’s decision rejecting Mr. Arellano’s Confrontation Clause
claim is neither contrary to nor an unreasonable application of clearly established
Supreme Court law, I find that Mr. Arellano is not entitled to relief with respect to claim
3(b). Furthermore, because Mr. Arellano’s insufficient evidence argument in claim 3(a)
is contingent on a Confrontation Clause violation in claim 3(b), Mr. Arellano also is not
entitled to relief with respect to claim 3(a).
C. Claim 4
Mr. Arellano alleges in claim 4 that his Sixth and Fourteenth Amendment right to
the effective assistance of counsel was violated because: (e) trial counsel failed to seek
replacement of an allegedly biased juror who overheard a comment that Mr. Arellano
previously had served time and (f) counsel on direct appeal failed to raise as an issue
the trial court’s failure to sua sponte declare a mistrial when a prospective juror exposed
other jurors to the fact that Mr. Arellano previously had served time. The Colorado
Court of Appeals described the factual background for Mr. Arellano’s ineffective
assistance of counsel claims as follows:
On the first day of defendant’s trial and after the jury
had been empaneled, juror number 12 (Juror 12) informed
the court that another prospective juror, who was
defendant’s ex-brother-in-law, stated to him that defendant “had
been in jail” since he was fifteen or sixteen.

15

The trial court questioned Juror 12 in camera about
this extraneous statement and asked him if he could exclude
the statement from his consideration in the case. Juror 12
repeatedly stated that he could. The court confirmed that
Juror 12 had not mentioned the statement to any of the other
jurors. The court then stated:
I’m pretty convinced [Juror 12], based on his
statements, is not going to use [the extraneous
statement] for any purpose whatsoever. He
said that multiple times. I have no reason to
doubt his sincerity.
Defendant made a motion for a mistrial based on
Juror 12’s exposure to the extraneous statement. This
motion was denied.
Arellano II, slip op. at 1-2 (ECF No. 14-11 at 3-4).
It was clearly established when Mr. Arellano was convicted that a defendant has
a Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed
questions of law and fact. See id. at 698.
To establish that counsel was ineffective, Mr. Arellano 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. Arellano’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
16

904, 914 (10th Cir. 1999). Furthermore, “because the Strickland standard is a general
standard, a state court has even more latitude to reasonably determine that a defendant
has not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
In the context of a claim that counsel on direct appeal was ineffective, “it is
difficult to show deficient performance . . . because counsel ‘need not (and should not)
raise every nonfrivolous claim, but rather may select from among them in order to
maximize the likelihood of success on appeal.’” Cargle v. Mullin, 317 F.3d 1196, 1202
(10th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). Thus, in
considering a claim that appellate counsel was ineffective by failing to raise an issue on
appeal, I must look to the merits of the omitted issue. See Neill v. Gibson, 278 F.3d
1044, 1057 (10th Cir. 2001).
If the omitted issue is so plainly meritorious that it would
have been unreasonable to winnow it out even from an
otherwise strong appeal, its omission may directly establish
deficient performance; if the omitted issue has merit but is
not so compelling, the case for deficient performance is
more complicated, requiring an assessment of the issue
relative to the rest of the appeal, and deferential
consideration must be given to any professional judgment
involved in its omission; of course, if the issue is meritless,
its omission will not constitute deficient performance.
Cargle, 317 F.3d at 1202.
Under the prejudice prong, Mr. Arellano 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.; see also Harrington, 131 S. Ct.
at 792 (stating that “[t]he likelihood of a different result must be substantial, not just
17

conceivable.”). In determining whether Mr. Arellano has established prejudice, the
Court must look at the totality of the evidence and not just the evidence that is helpful to
Mr. Arellano. See Boyd, 179 F.3d at 914.
Finally, 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. Arellano fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697.
The Colorado Court of Appeals applied this clearly-established federal law in
rejecting Mr. Arellano’s ineffective assistance of counsel claims. With respect to claim
4(e), in which Mr. Arellano alleges that trial counsel failed to seek replacement of an
allegedly biased juror who overheard a comment that Mr. Arellano previously had
served time, the Colorado Court of Appeals reasoned that
Defendant presented no competent evidence showing
that trial counsel’s performance fell outside “the wide range
of reasonable professional assistance.” See Strickland, 466
U.S. at 689. Although defendant now asserts that trial
counsel should have requested the alternate juror, there is
no evidence in the record suggesting trial counsel’s decision
not to request the alternate juror was an incompetent
decision.
Arellano II, slip op. at 7 (ECF No. 14-11 at 9). Similarly, with respect to respect to claim
4(f) in which Mr. Arellano claims direct appeal counsel was ineffective, the Colorado
Court of Appeals agreed with the trial court’s determination “that defendant presented
no evidence showing that appellate counsel’s performance was an incompetent
decision.” Arellano II, slip op. at 8 (ECF No. 14-11 at 10). In particular, the Colorado
Court of Appeals noted that, “[a]lthough defendant disagrees with appellate counsel’s
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decision not to appeal the denial of his motion for a mistrial, he has presented no
evidence as to whether this issue was clearly stronger than those presented.” Id.
(internal quotation marks omitted).
Mr. Arellano contends that the rejection of claim 4(e) was an unreasonable
application of Strickland because Colorado state law authorizes the replacement of a
juror and counsel failed to pursue that remedy. He explains as follows:
Clearly counsel’s performance was constitutionally deficient
as it is self-evident that counsel was unaware of
Mr. Arellano’s right to seek replacement of the juror and
instead only sought a mistrial, which is a drastic remedy
(perhaps counsel should have asked for a recess and
sought permission to conduct individual voir dire of the jurors
to determine whether they had all been exposed to the fact
that Mr. Arellano had numerous prior convictions, i.e.,
evidence which had not been introduced at trial prior to
seeking a mistrial. In other words, had the entire jury pool
been exposed, a mistrial would be a proper remedy as the
jurors were required to make a finding based sole[l]y on the
evidence introduced at trial and not that disclosed by some
former person acquainted with Mr. Arellano and his past.)
Anyway you look at it, counsel failed to discharge a valid
legal obligation, i.e., discuss and exercise on behalf of his
client that which is allowed under state law.
(ECF No. 24 at 10-11.)
With respect to claim 4(f), Mr. Arellano argues in the Traverse that the trial
court’s order denying his Rule 35(c) motion was based on an unreasonable
determination of the facts because the trial court believed the issue arose during voir
dire, when counsel still could have exercised a peremptory challenge to remove the
juror in question. However, the Colorado Court of Appeals correctly noted that the issue
arose “after the jury had been empaneled.” Arellano II, slip op. at 1 (ECF No. 14-11 at

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3). Therefore, while the trial court may have been mistaken regarding the timing of the
incident, it is clear that the Colorado Court of Appeals was not operating under the
same mistaken belief when that court rejected claim 4(f) on the grounds that
Mr. Arellano “presented no evidence showing that appellate counsel’s performance was
an incompetent decision.” Arellano II, slip op. at 8 (ECF No. 14-11 at 10).
Mr. Arellano’s conclusory assertions in claims 4(e) and 4(f) that counsel was
ineffective are not sufficient to warrant habeas relief. See Humphreys, 261 F.3d at 1022
n.2. As the Colorado Court of Appeals correctly noted, the only evidence presented at
the hearing on Mr. Arellano’s Rule 35(c) motion was his own testimony. See Arellano II,
slip op. at 3 (ECF No. 14-11 at 5); (see also State Court R., Tr. 2/25/10). Thus, the
Court cannot conclude that the decision of the Colorado Court of Appeals that Mr.
Arellano failed to support his ineffective assistance of counsel claims with evidence
“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)(2).
Furthermore, the absence of any evidence to support the ineffective assistance
of counsel claims also leads to the conclusion that the decision of the Colorado Court of
Appeals was not an unreasonable application of Strickland. See 28 U.S.C.
§ 2254(d)(1). Given that my review of Mr. Arellano’s attorneys “must be highly
deferential,” the absence of evidence to support the ineffective assistance of counsel
claims fails to overcome the “strong presumption” that their performance falls within the
range of “reasonable professional assistance.” Strickland, 466 U.S. at 689. While
Mr. Arellano believes “it is self-evident that counsel was unaware of Mr. Arellano’s right

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to seek replacement of the juror” (ECF No. 24 at 10), the absence of any evidence to
support that conclusory assertion is fatal to claim 4(e). In short, there is no indication
that the failure to seek replacement of the juror with the alternate was completely
unreasonable. Similarly, there also is no indication that the failure to raise the mistrial
issue on direct appeal was completely unreasonable. Therefore, Mr. Arellano is not
entitled to relief with respect to claims 4(e) and 4(f).
IV. CONCLUSION
In summary, the Court finds that Mr. Arellano is not entitled to relief on his
remaining claims. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) 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: May 28, 2013.
BY THE COURT:

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

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