Ciarcia v. Tranni

Filing 29

ORDER DENYING 28 U.S.C. § 2254 APPLICATION, by Judge Raymond P. Moore on 2/4/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Raymond P. Moore

Civil Action No. 12-cv-01965-RM
JERRY G. CIARCIA,
Applicant,
v.
TRAVIS TRANNI, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

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

Applicant, Jerry G. Ciarcia, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Sterling, Colorado. See ECF No. 28.
On August 3, 2012, Mr. Ciarcia filed pro se an application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (ECF No. 5) challenging the validity of his
convictions in El Paso County, Colorado, district court case number 04CR5098. He has
paid the $5.00 filing fee. See ECF No. 1. After reviewing the record, including the
habeas corpus application, the answer, and the state court record, the Court concludes
that the application should be denied and the case dismissed with prejudice.
I. Federal Habeas Corpus Proceedings
On August 8, 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 August 30, 2012, because the August 8
order inadvertently was not served on Respondents, Magistrate Judge Boland entered a
second order for a pre-answer response. On September 17, 2012, Respondents filed
their pre-answer response (ECF No. 11). Mr. Ciarcia did not file a reply, although he
was afforded the opportunity to do so.
On February 11, 2013, the Court entered an order (ECF No. 16) denying the
application in part. Specifically, claim three – to the extent it argued the state trial court
violated the Colorado rules of evidence by admitting two uncharged assaults – was
dismissed as not cognizable in a habeas corpus action. In the February 11 order, as
amended by the minute order of February 12, 2013 (ECF No. 17), the Court also
directed Respondents to file within thirty days after the filing of the state court record an
answer that fully addressed the merits of exhausted claims one, two, and three. On
March 11, 2013, Respondents filed their answer (ECF No. 19). Claims one, two, and
three remain pending. In separate orders, the Court directed Respondents to provide
the state court record, which was filed on September 17, 2013. See ECF No. 26.
II. State Court Proceedings
On January 22, 2007, a jury convicted Mr. Ciarcia in El Paso County District
Court Case No. 04CR5098 on four counts of sexual assault, each enhanced by a crimeof-violence finding, as well as on lesser offenses not at issue here. ECF No. 11, ex. A

2

(state court register) at 13-14; ex. D (People v. Ciarcia, No. 07CA1077 (Colo. Ct. App.
Nov. 18, 2010)) at 3. On April 23, 2007, the trial court sentenced him to an
indeterminate term of twenty years to life for each sexual-assault count. ECF No. 11,
ex. A at 11; ex. D. at 10-11. He appealed directly to the Colorado Court of Appeals,
which on November 18, 2010, affirmed. ECF No. 11, ex. D. On April 18, 2011,
certiorari review was denied. ECF No. 11, ex. B.
On August 23, 2011, Mr. Ciarcia filed a motion for sentence reconsideration
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure, which the trial court
denied on September 6, 2011. ECF No. 11, ex. A at 10. Mr. Ciarcia did not appeal.
III. Analysis
A. Standard of Review on the Merits
The Court must construe liberally Mr. Ciarcia’s filings because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) 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.

3

28 U.S.C. § 2254(d). Mr. Ciarcia 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). 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. 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).
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
4

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. Ciarcia 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.
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]
5

precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08. Additionally, we have recognized that an
unreasonable application may occur if the state court either
unreasonably extends, or unreasonably refuses to extend, a
legal principle from Supreme Court precedent to a new
context where it should apply.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [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

6

this analysis, the Court “must determine what arguments or theories supported or . . .
could have supported[] the state court’s decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.” Id. In addition, “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 131 S. Ct. at 786 (stating that “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.
Richter, 131 S. Ct. 786-87.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C. §
2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). 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. Ciarcia 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

7

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
The Court now will address the merits of Mr. Ciarcia’s exhausted and remaining
claims. Retaining the numbering in the application, the claims are:
1.
Admission of two other sexual assaults under Colo. R.
Evid. 404(b) violated due process. ECF No. 5 (habeas
corpus application) at 5-11.
2.
The admission of out-of-court statements by the
victim to other witnesses violated due process. ECF No. 5 at
12-14.
3.
Admission of two uncharged assaults violated his due
process right to a fair trial. ECF No. 5 at 12, 15.
Claims One and Three
First, the Court will address Mr. Ciarcia’s first and third due process claims, which
Respondents discuss together in their answer because of the claims’ similarity.
Construed together, Mr. Ciarcia alleges that the admission of two unrelated and
uncharged sexual assaults involving Applicant’s ex-girlfriends violated his due process
right to a fair trial.
The admission of evidence violates due process only when it denies a defendant
fundamental fairness. Payne v. Tennessee, 501 U.S. 808, 825 (1991) (evidence

8

violates due process only when it is so unduly prejudicial that it renders a trial
fundamentally unfair). The Supreme Court has “defined the category of infractions that
violate ‘fundamental fairness’ very narrowly.” Dowling v. United States, 493 U.S. 342,
352 (1990). Furthermore, “because a fundamental-fairness analysis is not subject to
clearly definable legal elements, when engaged in such an endeavor a federal court
must tread gingerly and exercise considerable self-restraint.” Duckett v. Mullin, 306
F.3d 982, 999 (10th Cir. 2002) (internal quotation marks omitted). The Court’s “[i]nquiry
into fundamental fairness requires examination of the entire proceedings.” Le v. Mullin,
311 F.3d 1002, 1013 (10th Cir. 2002) (per curiam).
In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court specifically
declined to hold that the admission of prior-injury evidence violated due process, thus
warranting habeas relief. See id. at 75. The Supreme Court stated in a footnote that,
because it need not reach the issue, it expressed no opinion as to whether a state law
would violate due process if it permitted the use of “‘prior crimes’” evidence to show
propensity to commit a charged crime. Id. at n.5; see also Spencer v. Texas, 385 U.S.
554, 563-64 (1967) (rejecting the argument that the Due Process Clause requires the
exclusion of prejudicial evidence, even though limiting instructions were given and a
valid state purpose is served, and recognizing that the Supreme Court is not “a rulemaking organ for the promulgation of state rules of criminal procedure” and that “none
of the specific provisions of the Constitution ordains this Court with such authority.”).
Because there is no clearly established Supreme Court precedent holding that a
state violates due process by permitting propensity evidence in the form of other
bad-acts evidence, see Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), the
9

admission of prior bad-acts evidence cannot be contrary to clearly established Supreme
Court precedent. Rath v. Attorney General of Colorado, No. 06-cv-00419-WYD, 2008
WL 1930633, at *6 (D. Colo. 2008), appeal dismissed, 290 Fed. App’x 185 (10th Cir.
2008). The Court finds the same logic applies in the instant action where the other-acts
evidence is based upon subsequent bad-acts evidence.
Mr. Ciarcia can prevail only if the trial court's admission of the other-acts
evidence rendered the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights. See Estelle, 502 U.S. at 68; see also Moore v. Marr, 254 F.3d
1235, 1246 (10th Cir. 2001). A federal habeas court “will not disturb a state court's
admission of evidence of prior crimes, wrongs or acts unless the probative value of such
evidence is so greatly outweighed by the prejudice flowing from its admission that the
admission denied defendant due process of law.” Hopkinson v. Shillinger, 866 F.2d
1185, 1197 (10th Cir. 1989), overruled on other grounds by Sawyer v. Smith, 497 U.S.
227 (1990).
The Colorado Court of Appeals upheld the admission of the uncharged assaults
under state evidentiary rules and an accompanying four-part test pursuant to People v.
Spoto, 795 P.2d 1314, 1318-19 (Colo. 1990), that assesses whether:
(1) the proffered evidence relates to a material fact; (2) the
evidence is logically relevant; (3) the evidence’s logical
relevance is independent of the intermediate inference
regarding defendant’s propensity to commit the alleged
crime; and (4) the evidence’s probative value is not
substantially outweighed by the danger of unfair prejudice.
ECF No. 11, ex. D at 22.

10

The Colorado Court of Appeal discussed in great detail the other-acts evidence
introduced by the prosecution involving Mr. Ciarcia’s subsequent ex-girlfriends, referred
to as J. T. and J. G. See ECF No. 11, ex. D at 22-26; see also ECF No. 26, trial tr.,
846-882/pdf 222-258, Jan. 12, 2007 (J. T.’s testimony); ECF No. 26, trial tr., 900910/pdf 5-15, Jan. 17, 2007 (J. G.’s testimony). The state appeals court noted that,
prior to both J. T. and J. G.’s testimony, the trial court provided a limiting instruction that
their testimony “was to be used only to show defendant’s ‘method of operation, common
plan or scheme, or intent’” and “‘for no other purpose,’” ECF No. 11, ex. D at 26, see
also ECF No. 26, trial tr. 846/pdf 222, Jan. 12, 2007, and the jury received similar
written instructions at the trial’s conclusion regarding the ex-girlfriends’ testimony. ECF
No. 11, ex. D at 26; see also ECF No. 26, trial tr., 948/pdf 53, Jan. 17, 2007; ECF No.
26, court file.pdf, instruction nos. 11 and 12, 187-188. The record also shows that the
same limiting instruction was given before the victim, K. G., testified. See ECF No. 26,
trial tr. 281/pdf 121, Jan. 10, 2007.
The Colorado Court of Appeals determined the trial court evidence showed that
on multiple occasions, Mr. Ciarcia physically attacked women with whom he had an
intimate relationship in “angry, violent outbursts” after the women rejected him, ECF No.
11, ex. D at 26-27, and concluded that the trial court properly admitted the ex-girlfriends’
testimony as evidence of Mr. Ciarcia’s modus operandi and did not abuse its discretion
in concluding that the four Spoto elements were met. ECF No. 11, ex. D at 27-28.
The appeals court also determined that the other-acts evidence concerned a
material fact at issue, i.e., whether Mr. Ciarcia sexually assaulted the victim, K. G., or
she fabricated the allegations, ECF No. 11, ex. D at 28-30, and that J. T. and J. G.’s
11

testimony was relevant to establish Mr. Ciarcia’s pattern of behavior in romantic
relationships by showing that he became increasingly possessive, controlling, and
jealous, and engaged in a pattern of acting violently with other women when they
terminated their relationships or frustrated his sexual desires. ECF No. 11, ex. D at 3032.
The state appeals court then balanced this probative value against the danger of
unfair prejudice and concluded that because all three women’s testimony “shared
several significant characteristics that evidenced a behavioral pattern rather than
isolated incidents,” ECF No. 11, ex. D at 34, the probative value of the evidence was not
outweighed substantially by the danger of unfair prejudice. ECF No. 11, ex. D at 33-37.
As previously stated, 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. Johnson, 133 S. Ct. 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. Therefore, the Court must presume, subject
to rebuttal, that the federal due process claim was adjudicated on the merits.
It is clear from the state record that the trial court instructed the jury to consider
the other-acts evidence only for the specified, limited purpose of showing a common
plan, scheme or design, modus operandi, motive, or intent, and for no other purpose.
The Court does not find that the probative value of the prior-acts evidence was
outweighed substantially by any unfair prejudice. Having decided as such, the Court
12

does not find that having the jury consider the other-acts evidence for a limited,
specified purpose rendered the trial as a whole fundamentally unfair as to constitute a
denial of federal constitutional rights. Therefore, this Court finds that the state court's
decision was not contrary to clearly established federal law.
Claim Two
Next the Court will discuss Mr. Ciarcia’s second claim that the admission of outof-court statements by the victim, K. G., to other witnesses violated his due process
rights under the Fifth and Fourteenth amendments. Specifically, Mr. Ciarcia argues the
prosecution evidence that the victim made statements about the sexual assault to her
mother, the sexual assault nurse examiner, and responding officer violated due
process.
As stated in the above discussion of claims one and three, the admission of
evidence violates due process only when it denies a defendant fundamental fairness.
Payne, 501 U.S. at 825. The Supreme Court has “defined the category of infractions
that violate ‘fundamental fairness’ very narrowly.” Dowling, 493 U.S. at 352.
Furthermore, “because a fundamental-fairness analysis is not subject to clearly
definable legal elements, when engaged in such an endeavor a federal court must tread
gingerly and exercise considerable self-restraint.” Duckett, 306 F.3d at 999 (internal
quotation marks omitted). The Court’s “[i]nquiry into fundamental fairness requires
examination of the entire proceedings.” Le, 311 F.3d at 1013.
The Colorado Court of Appeals found that the trial court did not error by admitting
testimony concerning the victim’s statements to her mother (ECF No. 26, trial tr., 470474/pdf. 104-108, Jan. 11, 2007), the sexual assault nurse examiner (ECF No. 26, trial
13

tr., 502-506 /pdf. 136-140, Jan. 11. 2007), and responding officer Mark Peterson (ECF
No. 26, trial tr., 651-669, 674-678/pdf. 27-45, 50-54, Jan. 12, 2007) because the
statements were consistent with the victim’s testimony and were offered to rebut Mr.
Ciarcia’s theory of defense that the victim fabricated the allegations against him. ECF
No. 11, ex. D at 19. Accordingly, the state appeals court found that the statements,
which were consistent with the victim’s testimony, were relevant, their probative value
substantially outweighed the danger of unfair prejudice, and the statements properly
were admitted under state evidentiary rules. Id.
Again, 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. Johnson, 133 S. Ct. 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. Therefore, the Court must presume, subject to rebuttal, that the
federal due process claim was adjudicated on the merits.
It is clear from the state court record that the victim’s out-of-court statements –
recounted by her mother, the sexual assault nurse examiner, and the responding officer
– generally were consistent with her trial testimony. Her mother testified to the victim’s
phone call to her following the incident. ECF No. 11, ex. D at 11-12; see also ECF No.
26, trial tr., 471-473/pdf. 105-107, Jan. 11, 2007). The sexual assault nurse examiner
read the victim’s description of the sexual assaults from the history obtained during her
examination. ECF No. 11, ex. D at 12; see also ECF No. 26, trial tr., 504-506/pdf. 13814

140, Jan. 11. 2007. The officer dispatched to the victim’s home to investigate the case
testified the victim told him Mr. Ciarcia sexually assaulted her four times during a sixhour period. ECF No. 11, ex. D at 12; see also ECF No. 26, trial tr., 657/pdf. 33, Jan.
12, 2007). He further testified that the victim told him Mr. Ciarcia came to her home to
discuss a car payment, attempted to re-establish their relationship, and repeatedly
sexually assaulted her when she refused to do so, taping her wrists and ankles
together, keeping her in the master bedroom closet, and forcing her to take baths to
eliminate evidence. ECF No. 11, ex. D at 12; see also ECF No. 26, trial tr. 657-658/pdf.
33-34, Jan. 12, 2007).
These statements were consistent with the victim’s testimony at trial, where she
was subject to cross-examination, and were offered to counter Mr. Ciarcia’s attack on
her credibility and his defense that he did not sexually assault the victim or commit any
of the other charged crimes. For these reasons, the Court does not find that the
probative value of the statements was outweighed substantially by any unfair prejudice.
Having decided as such, the Court does not find that having the jury consider the out-ofcourt statements rendered the trial as a whole fundamentally unfair as to constitute a
denial of federal constitutional rights. Therefore, this Court finds that the state court's
decision was not contrary to clearly established federal law.
IV. Conclusion
For the reasons stated above, the habeas corpus application 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
15

U.S. 438 (1962). If Mr. Ciarcia files a notice of appeal he also must pay the full $505.00
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 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 has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this 4th day of February, 2014.
BY THE COURT:

__________
RAYMOND P. MOORE
United States District Judge

16