Velasquez v. Faulk, et al

Filing 22

ORDER re: 3 Application for Writ of Habeas Corpus filed by Juan Velasquez, Pursuant to 28 U.S.C. § 2254, ECF No. 6, is DENIED. It is FURTHER ORDERED that I sua sponte deny the issuance of a Certificate of Appealability pursuant to 28 U.S .C. § 2253(a). Having considered the standards of Slack v. McDaniel, 529 U.S. 473, 484 (2000), I find that Applicant has not made a substantial showing of the denial of a constitutional right such that reasonable jurists could disagree as to the disposition of his petition. 28 U.S.C. § 2253(c)(2). It is FURTHER ORDERED that I also sua sponte certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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 Applicant files a notice of appeal he must also 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., by Judge Wiley Y. Daniel on 2/5/2014. (evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02057-WYD
JUAN VELASQUEZ,
Applicant,
v.
WARDEN FAULK, L.C.F., 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 pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (“Application”) filed by Applicant Juan
Velasquez.
I. Background
A jury convicted Velasquez of attempted first degree murder and
first degree assault. His convictions arose from an incident in which he
stabbed the victim with a knife while sitting behind him on a motorcycle.
The trial court also found Velasquez to be a habitual criminal and imposed
two concurrent ninety-six-year sentences. Velasquez moved pro se for a
new trial pursuant to Crim. P. 33(c), arguing ineffective assistance of
counsel and other matters. The trial court denied the motion. On direct
appeal, a division of this court affirmed his convictions in People v.
Velasquez, (Colo. App. No. 03CA2449, Nov. 9, 2006) (not published
pursuant to C.A.R. 35(f)).
Velasquez subsequently sought relief pursuant to Crim P. 35(c),
arguing he was denied a jury trial on the habitual criminal counts and he
received ineffective assistance of counsel, but based on different
allegations than contained in his motion under Crim. P. 33(c). The trial
court denied his motion.
People v. Velasquez, No. 07CA1796, 1-2 (Colo. App. Jan. 15, 2009).

In Case No. 07CA1796, the Colorado Court of Appeals (CCA) affirmed the denial
in part, reversed in part, and remanded for an evidentiary hearing on Applicant’s
ineffective assistance of counsel claim regarding a failure to investigate and raise the
voluntary intoxication defense. Id. at 11. After the remand hearing, the trial court again
denied the Rule 35(c) postconviction motion and the CCA affirmed. Applicant petitioned
for certiorari review and, according to Respondents, which Applicant does not deny, the
Colorado Supreme Court (CSC) has yet to rule on the petition. Applicant then
commenced this action on August 6, 2012, and filed an Amended Application on
September 4, 2012. In the Amended Application, Applicant asserts:
(1) Denial of a right to conflict free counsel;
(2) Lack of sufficient evidence to support a charge of attempted first
degree murder;
(3) Lack of a sufficient indictment resulting in the inability to prepare a
defense;
(4) Lack of sufficient evidence to prove habitual criminal counts;
(5) Disproportionate sentence;
(6) Prosecutorial misconduct;
(7) Ineffective assistance of trial counsel because
(a) Counsel coerced Applicant not to testify;
(b) Counsel failed to raise an affirmative
defense of voluntary intoxication;
(c) Counsel failed to conduct a reasonable investigation
and interview witnesses in support of a voluntary
intoxication defense;

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(d) Counsel failed to object to the prosecution’s
misstatements of law and misconduct in
closing and rebuttal arguments; and
(e) Cumulative error; and
(8) Denial of a right to jury trial on habitual criminal findings.
On February 1, 2013, I dismissed Claim Three as procedurally barred from
federal habeas review and ordered Respondents to file an Answer. Respondents filed
an Answer, ECF No. 21, on March 21, 2013. Applicant did reply to the Answer. After
reviewing the file, including the Application, the Answer, and the state court record, I
conclude that the Application should be denied and the case dismissed with prejudice
for the following reasons.
II. Legal Standard
A. Pro Se Standard of Review
Applicant is proceeding pro se. I, therefore, “review his pleadings and other
papers liberally and hold them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se
litigant’s “conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). A court may not assume that an applicant can prove facts that have not
been alleged, or that a respondent has violated laws in ways that an applicant has not
alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983). An applicant’s pro se status does not entitle him to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).
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B. 28 U.S.C. § 2254
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).
Claims of legal error and mixed questions of law and fact are reviewed pursuant
to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).
The threshold question pursuant to § 2254(d)(1) is whether Applicant 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. If a clearly established rule of federal law is
implicated, I must determine whether the state court’s decision was contrary to or an
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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 one.
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
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the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. It is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 131 S. Ct. 770, 786, --- U.S. --- (Jan. 19, 2011) (internal quotation
marks and citation omitted). 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. “Even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citation omitted). “Section 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Id. (citation omitted).
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.
Furthermore,
[a]s a condition for obtaining habeas corpus relief 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. at 786-87. Applicant bears the burden of proof under § 2254(d).
See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
Claims of factual error are reviewed 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)

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allows a court to grant a writ of habeas corpus only if the state court decision was based
on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to § 2254(e)(1), I must presume that the state court's factual determinations
are correct and Applicant 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)).
A claim, however, 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. Richter,
131 S. Ct. at 784. (“[D]etermining 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”). Furthermore, “[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. 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, —
U.S. —, 133 S. Ct. 1088, 1094-98 (2013).
In other words, I “owe 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,
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I “must uphold the state court’s summary decision unless [the court’s] independent
review of the record and pertinent federal law persuades [it] that [the] 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. Likewise, I apply the AEDPA deferential standard of review
when a state court adjudicates a federal issue relying solely on a state standard that is
at least as favorable to the petitioner as the federal standard. See Harris v. Poppell,
411 F.3d 1189, 1196 (10th Cir. 2005). 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. Analysis
A. Claim One
In his first claim, Applicant asserts that he was denied his right to conflict free
counsel. Applicant specifically asserts that trial counsel refused to invoke his speedy
trial rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA) in
violation of his right to conflict free counsel under the Sixth Amendment. Application at
5. Applicant contends that after he was arrested, charged, and appointed counsel he
was transferred to the Colorado Department of Corrections because of a parole
violation. Id. Applicant further contends when he informed counsel that he wished to
exercise his ninety-day speedy trial right under the UMDDA counsel told him that he
was unprepared for trial, because he had not interviewed witnesses or taken any other
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action in the case. Id. Counsel further told Applicant that he would have to waive his
speedy trial rights, but if Applicant wished to proceed he would have to do so on his
own. Id. Finally, Applicant asserts that the trial court found counsel was not ineffective
and new counsel was not required because the situation was no more than a
disagreement between Applicant and counsel. Id.
Applicant does not argue how established federal law might support a possible
conflict of interest claim or how the state court decision rejecting his conflict of interest
claim is contrary to, or an unreasonable application of, any clearly established federal
law. See 28 U.S.C. § 2254(d)(1).
It was clearly established when Applicant 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). Ordinarily, a litigant asserting a claim that counsel
was ineffective 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. “An ‘actual conflict,’ for Sixth Amendment
purposes, is a conflict of interest that adversely affects counsel’s performance.”
Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002).
In addressing this claim, the CCA found as follows.
I. Requests for Substitute Counsel
Defendant first contends that, in violation of his constitutional rights,
the trial court abused its discretion by denying his requests for substitute
appointed counsel. He states that he explicitly requested new counsel,
and argues that the court did not make sufficient inquiry into his reasons
for dissatisfaction. We discern no abuse of discretion.

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An indigent defendant is entitled to effective representation, though
not to counsel of his or her choice. People v. Jenkins, 83 P.3d 1122, 1125
(Colo. App. 2003). However, once a defendant voices his or her
objections to court appointed counsel, the trial court must inquire into the
defendant’s reasons for dissatisfaction. People v. Fisher, 9 P.3d 1189,
1193 (Colo. App. 2000). If the defendant meets his or her burden of
showing good cause, for example by showing a conflict of interest or a
complete breakdown of communication, then the trial court must appoint
substitute counsel. People v. Jenkins, supra, 83 P.3d at 1126.
But if the court determines that the attorney-client relationship has
not deteriorated beyond the point where counsel could provide effective
assistance, then the court may refuse to appoint new counsel. The court’s
ruling will not be disturbed absent an abuse of discretion. People v.
Jenkins supra, 83 P.3d at 1126.
Here, defendant requested new counsel twice before trial,
complaining of a breakdown in communication. Contrary to defendant’s
assertions, our review of the record shows that upon both of defendant’s
requests, the court’s inquiry was adequate.
Specifically, the record reveals that upon defendant’s first request,
the court scheduled and then held a hearing to inquire into defendant’s
reasons for dissatisfaction. The court asked defense counsel, the People,
and defendant for their perspectives on defendant’s request. Defense
counsel told the court that defendant had indicated he did not trust
counsel or believe in his legal advice. He stated that he was in an
awkward position because defendant’s lack of trust had resulted in the
breakdown of communication.
When the court asked defendant for his perspective, he stated:
“Well, I just don’t feel that [defense counsel] is working in my best interests
and we don’t really have -- we don’t see eye to eye and I would like
different counsel.”
After further discussion, the court addressed the issues raised by
defendant. Although defendant did not refer to his previous waiver of
speedy trial or his pro se petition under the Uniform Mandatory Disposition
of Detainers Act (UMDDA) at the hearing on his motion, the court
nevertheless addressed those issues because defendant had previously
mentioned them to the court. The court found that defendant’s speedy
trial and UMDDA arguments did not demonstrate a complete breakdown
of communication because defense counsel did not know of defendant’s
intention to invoke the UMDDA and because defendant’s speedy trial
waiver was voluntary. Moreover, the court concluded:
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The court finds the state of the record at this time
establishes that this is simply -- strike that that this is a
disagreement between the defendant and [defense counsel]
concerning matters and there has been no specific showing
in this court’s view of good cause shown to substitute
counsel. Therefore the motion is denied.
Defendant renewed his request for a new attorney on the date trial
was scheduled to begin. The court again directly asked defendant why he
was dissatisfied with his court-appointed counsel. Defendant explained
that he believed his attorney was ineffective because he had not
interviewed a potential witness. He also stated that he thought his
attorney was not acting in his best interests when the attorney advised him
to waive his speedy trial rights. He said he felt misled. Then, in “making
an inquiry of [defense counsel],” the court questioned defense counsel on
the issues raised by defendant. The court then again denied defendant’s
motion for appointment of substitute counsel.
In light of the court’s questions, its interview with counsel,
defendant’s responses, and the information already before the court each
time defendant requested substitute counsel, we are satisfied that the
court adequately inquired into the reasons for defendant’s dissatisfaction,
including the issues of his speedy trial waiver, his UMDDA petition, and his
lack of trust in defense counsel. Furthermore, notwithstanding defense
counsel’s statement that there was a breakdown in communication, the
court’s determination that the relationship had not deteriorated to the point
of a complete breakdown has record support. See People v. Arguello,
772 P.2d 87, 94 (Colo. 1989) (right to counsel does not necessarily
include meaningful attorney-client relationship); People v. Hodges, 134
P.3d 419, 425-26 (Colo. App. 2005) (cert. granted Apr. 24, 2006)
(animosity between defendant and counsel does not require appointment
of new counsel); People v. Garcia, 64 P.3d 857 (Colo. App. 2002) (conflict
between defendant and counsel amounted to disagreement over strategy,
which does not require new counsel).
People v. Velasquez, No. 03CA2449, 1-5 (Colo. App. Nov. 9, 2006).
As stated above, Applicant bears the burden of proof under § 2254(d).
Woodford, 537 U.S. at 25. Applicant fails to demonstrate he is entitled to relief because
he fails to identify any clearly established federal law providing that an unconstitutional
conflict of interest exists under the circumstances he alleges. In the conflict of interest

11

context, the Supreme Court has noted that it is an open question whether the exception
to Strickland for cases of actual conflicts of interest extends to conflicts of interest that
do not involve multiple or concurrent representation by counsel. See Mickens, 535 U.S.
at 176.
Applicant does not allege any conflict of interest premised on either multiple or
concurrent representation by counsel and he fails to identify any other clearly
established federal law to support his conflict of interest claim. The Court reiterates that
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.”
Williams, 529 U.S. 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. House, 527 F.3d at 1016. 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. Id.
The absence of any clearly established federal law ends the Court’s inquiry under
§ 2254(d)(1). See House, 527 F.3d at 1018. Therefore, the Court finds that Applicant is
not entitled to relief on the conflict of interest claim and Claim One will be dismissed for
lack of merit.
B. Claim Two
In this claim, Applicant asserts that the prosecution provided insufficient evidence
to support a charge of attempted first degree murder and failed to meet the required
burden of proof of intent and after deliberation under Colo. Rev. Stat. § 18-3-102(1)(a).
Application at 6.
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A habeas applicant’s constitutional challenge to the sufficiency of the evidence is
governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support
a conviction as a matter of due process if, “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 (emphasis in the
original). A court considers both direct and circumstantial evidence in determining the
sufficiency of the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998).
The court “may not weigh conflicting evidence nor consider the credibility of witnesses,”
but must “‘accept the jury's resolution of the evidence as long as it is within the bounds
of reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Grubbs v.
Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
In applying Jackson, a court looks to state law to determine the substantive
elements of the offense. See Jackson, 443 U.S. at 324 n.16; Valdez v. Bravo, 373 F.3d
1093, 1097 (10th Cir. 2004). Under Colorado law, a person is guilty of first degree
murder under § 18-3-102(a) when “after deliberation and with the intent to cause the
death of a person other than himself, he causes the death of that person or of another
person.”
In addressing this claim, the CCA found as follows.
II. Sufficient Evidence of Deliberation
Defendant next contends that the evidence was insufficient to support his
conviction for attempted first degree murder. Specifically, he contends that there
was insufficient evidence of deliberation. We disagree.
A review of a claim of insufficient evidence requires an appellate
court to consider whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt. People v. Frye,
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898 P.2d 559, 569 (Colo. 1995). The court is to view the evidence in the
light most favorable to the prosecution, People v. Bennett, 183 Colo. 125,
132, 515 P.2d 466, 469 (1973), and may not sit as a thirteenth juror and
set aside a verdict because it might have drawn a different conclusion
from the same evidence. People v. Sprouse, 983 P.2d 771, 778 (Colo.
1999).
A person commits first degree murder if “[a]fter deliberation and
with the intent to cause the death of a person other than himself [or
herself], he [or she] causes the death of that person or of another person.”
Section 18-3-102(1)(a), C.R.S. 2006. Thus, to convict a person of attempt
to commit first degree murder, the People must prove beyond a
reasonable doubt that the defendant acted “after deliberation and with the
intent to cause death.” See § 18-2-101, C.R.S. 2006 (attempt requires
same mental state as underlying offense).
For purposes of first degree murder, “after deliberation” means “not
only intentionally but also that the decision to commit the act has been
made after the exercise of reflection and judgment concerning the act. An
act committed after deliberation is never one which has been committed in
a hasty or impulsive manner.” Section 18-3-101(3), C.R.S. 2006.
Although deliberation requires that a design to kill precede the killing, the
time required for deliberation need not be long. People v. Bartowsheski,
661 P.2d 235, 242 (Colo. 1983).
Moreover, deliberation must often be proved through circumstantial
or indirect evidence. People v. Parsons, 15 P.3d 799, 806 (Colo. App.
2000). Such evidence may include the use of a deadly weapon, see, e.g.,
People v. Parsons, supra, 15 P.3d at 806; the manner and method of the
attempted killing, People v. Webster, 987 P.2d 836, 843 (Colo. App.
1998); and any enmity, hostility, jealousy, or other manifestation of ill will
between the accused and the victim, People v. Madson, 638 P.2d 18, 26
(Colo. 1981). Thus, the circumstances surrounding a victim’s death may
permit a reasonable inference that the defendant was able to deliberate
committing the act before its commission. People v. Parsons, supra, 15
P.3d at 806.
Here, the jury could rationally infer that defendant had a
premeditated plan to kill the victim using another person’s assistance.
Specifically, the evidence was that defendant brought a knife with him and
began stabbing the victim while sitting behind him on a motorcycle they
were riding. The victim testified that defendant began the attack only after
a car occupied by someone who was familiar to defendant approached the
motorcycle, at which point defendant had asked the victim to slow down.

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He further testified that this other person assisted defendant in the attack
by dragging the victim’s body into a ditch after the stabbing.
Additionally, the victim testified that during the attack he pleaded
with defendant to stop, saying, “Not worth it, you take the bike. You can
have the bike. You don’t have to do this.” He said defendant replied,
“Die,” or “I’m going to kill you,” which he repeated several times. See
People v. Madson, supra, 638 P.2d at 26 (deliberation may be inferred
from the defendant’s hostility towards the victim).
Velasquez, No. 03CA2449 at 5-8.
The state court’s factual findings, which are presumed correct in a federal
habeas proceeding, are supported by the state court record, Velasquez, No. 02CR2048,
Tr. Trans. 7-8-03 and 7-9-03, and are uncontested by Applicant. The CCA’s reliance on
People v. Frye, 898 P.2d 559, 569 (Colo. 1995), and People v. Bennett, 515 P.2d. 466,
469 (1973), is in keeping with the Jackson standard because the CCA, viewing the
evidence in a light most favorable to the prosecution, determined that a rational jury
could have concluded Applicant had a premeditated plan to kill the victim and acted with
deliberation and an intent to cause the victim’s death. I, therefore, find the CCA’s
determination was consistent with federal law because there was sufficient evidence
presented at Applicant’s trial to support his conviction for attempted murder in the first
degree.
Based on the above findings, the CCA decision regarding Applicant’s sufficiency
of the evidence claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
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C. Claim Four
In this claim, Applicant asserts the prosecution failed to establish beyond a
reasonable doubt he was the person who committed any of the identified prior offenses
that were used to determine he was a habitual criminal. Application at 7.
As in Claim Three, Jackson provides the relevant federal law. The CCA
addressed this claim as follows:
IV. Sufficient Evidence that Defendant was an Habitual Criminal
Defendant contends that his adjudication as an habitual offender
must be vacated because the prosecution failed to provide sufficient
evidence that he is the same Juan Velasquez who received the attempted
vehicular eluding conviction. He also argues that the prosecution failed to
provide sufficient evidence that the second degree burglary and criminal
trespass convictions were separate and distinct criminal episodes. Thus,
he claims, the prosecution only proved he was the person convicted of
second degree assault, and therefore he did not have the requisite
number of prior convictions to establish habitual offender status. We
disagree with each of defendant’s arguments.
As discussed, a challenge to the sufficiency of the evidence
requires a reviewing court to determine whether the relevant evidence,
both direct and circumstantial, when viewed as a whole and in the light
most favorable to the People, is sufficient to support a conclusion that the
defendant is guilty of the crime charged beyond a reasonable doubt. The
People must be given the benefit of every reasonable inference that might
fairly be drawn from the evidence. People v. Barker, 713 P.2d 406, 40708 (Colo. App. 1985).
To adjudicate a defendant as an habitual criminal, the prosecution
must prove beyond a reasonable doubt that the accused is the person
named in the prior convictions. People v. Kyle, 111 P.3d 491, 504 (Colo.
App. 2004). In habitual criminal proceedings, a duly authenticated copy of
the record of former convictions is prima facie evidence of such
convictions. Section 18-1.3-802, C.R.S. 2006. Also, “[i]dentification
photographs and fingerprints that . . . are part of the records kept . . . by
any custodian authorized by the executive director of the department of
corrections after sentencing for any such former convictions and
judgments, shall be prima facie evidence of identity.” Section 18-1.3-802.
However, to prove exact identity, references to the accused’s name and
16

date of birth in the judgment of conviction alone are insufficient. People v.
Cooper, 104 P.3d 307, 312 (Colo. App. 2004).
Here, the prosecution presented sufficient evidence for a
reasonable fact finder to determine beyond a reasonable doubt that
defendant is the same Juan Velasquez who was convicted of vehicular
eluding. The prosecutor presented defendant’s properly authenticated
Department of Corrections (DOC) records packet, which contained a copy
of the vehicular eluding judgment. It listed defendant’s name, birth date,
and unique inmate identification number. These are the same name, birth
date, and inmate identification number that the DOC case manager who
supervised defendant for his second degree assault conviction identified
at trial as belonging to defendant. The DOC case manager also made an
in court identification of defendant as the same Juan Velasquez whose
identifying information is contained in the judgment for vehicular eluding.
Moreover, the name, birth date, and inmate identification number listed in
the vehicular eluding judgment are also listed on three properly
authenticated photographs of defendant contained in his DOC records
packet and on the three properly authenticated fingerprint cards belonging
to defendant that are contained in his DOC records packet. Additionally,
we note that the case number for the vehicular eluding conviction
(1999CR1735) was imbedded in a number listed on the most recent
fingerprint card (D0011999CR001735).
Thus, contrary to defendant’s argument, it is of no consequence
that the three authenticated DOC photographs and three fingerprint cards
did not list the vehicular eluding charge or conviction by name. See
People v. Kyle, supra, 111 P.3d at 505 (holding evidence sufficient where
non-DOC arrest fingerprints, identified as defendant’s, listed defendant’s
date of birth); People v. Cooper, supra, 104 P.3d at 310-12 (evidence
sufficient where supervising probation office made an in court identification
of defendant as same individual listed on documents containing case
numbers of previous convictions); People v. Carrasco, 85 P.3d 580, 583
(Colo. App. 2003) (evidence sufficient where defendant’s arrest record
identified him by unique Denver Police Department (DPD) number and
referenced prior convictions by case number, and DPD officer testified
defendant’s fingerprints matched those on file for same DPD number);
People v. Benton, 829 P.2d 451, 454 (Colo. App. 1991) (holding evidence
of 1982 conviction sufficient without conviction specific fingerprints
because defendant’s unique inmate identification number was listed on
photographs and fingerprint cards made during prior incarcerations).
We also disagree with defendant’s contention that the prosecution
failed to prove beyond a reasonable doubt that his convictions for first
degree criminal trespass and second degree burglary were separate and
17

distinct criminal episodes. Defendant argues that the fact that the
convictions were entered on the same date does not indicate that the two
convictions were separate and distinct episodes, and that the only pieces
of evidence offered to show that the offenses occurred on separate dates
were the judgments of conviction, which, according to defendant, were
insufficiently linked to him.
However, contrary to defendant’s assertion, these properly
authenticated documents were adequately linked to him because they
include his name, date of birth, and (despite defendant’s incorrect
assertion to the contrary) his unique inmate identification number.
Furthermore, both judgments of conviction directly reference an
identification photograph and fingerprint card in defendant’s authenticated
DOC records packet. See People v. Bernabei, 979 P.2d 26, 31 (Colo.
App. 1998) (inferring two felonies were separately brought and tried when
document stated that the felonies were committed on separate dates).
Velasquez, No. 03CA2449 at 11-16.
The state court’s factual findings, which are presumed correct in a federal
habeas proceeding, are supported by the state court record, Velasquez, No. 02CR2048,
Nov. 4, 2003 Sentencing Hr’g, and are uncontested by Applicant. The CCA’s reliance
on People v. Barker, 713 P.2d 406, 407-08 (Colo. App. 1985), and People v. Kyle, 111
P.3d 491, 504 (Colo App. 2004), is in keeping with the Jackson standard because the
CCA, viewing the evidence in a light most favorable to the prosecution, determined a
conclusion that Applicant beyond a reasonable doubt was the same individual who had
committed the crimes in the prior convictions. The Court therefore finds the CCA’s
determination that there was sufficient evidence presented at Applicant’s sentencing
hearing to support an habitual criminal adjudication was consistent with federal law.
Based on the above findings, the CCA decision regarding Applicant’s sufficiency
of the evidence claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the

18

Supreme Court of the United States and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
D. Claim Five
In this claim, Applicant asserts that his ninety-six year sentence is
disproportionate to the offense he committed. Application at 7.
“The Eighth Amendment, which forbids cruel and unusual punishments, contains
a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’” Ewing v.
California, 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 996-97
(1991) (Kennedy, J., concurring in part and concurring in judgment)). A sentence
violates the Eighth Amendment if it is “grossly disproportionate to the severity of the
crime.”
Although the Supreme Court has admitted there is a lack of clarity regarding
what factors may indicate gross disproportionality, the Court has acknowledged that a
“gross disproportionality principle is applicable to sentences for terms of years,” and
“the gross disproportionality principle reserves a constitutional violation for only the
extraordinary case.” See Lockyer v. Andrade, 538 U.S. 63, 72 and 77 (2003). The
Supreme Court has only twice invalidated a sentence under the Eighth Amendment.
See Weems v. United States, 217 U.S. 349 (1910) (defendant sentenced to fifteen
years in chains and hard labor for falsifying a public document); Solem v. Helm, 463
U.S. 277 (1983) (defendant sentenced to life without parole after committing six
nonviolent felonies including writing a bad $100-dollar check).

19

Gross proportionality cases also are inherently fact-specific. See e.g. Rummel v.
Estelle, 445 U.S. 263, 265-66, 275-76 (1980) (concluding that sentence of life
imprisonment with possibility of parole imposed under state recidivist statute did not
violate Eighth Amendment, where defendant had two previous felony convictions—one
for “fraudulent use of a credit card to obtain $80 in goods or services” and another for
“passing a forged check in the amount of $28.36” –and was then convicted of felony
theft for “obtaining $120.75 by false pretenses”); Hutto v. Davis, 454 U.S. 370 (1982)
(upholding against a proportionality attack a sentence of 40 years’ imprisonment for
possession with intent to distribute nine ounces of marijuana); Harmelin, 501 U.S. 957,
994 (1991) (plurality opinion holding that sentence of life imprisonment without parole
for first-time offender’s possession of 672 grams of cocaine did not violate the Eighth
Amendment); Ewing, 538 U.S. at 30–31 (upholding against a proportionality attack a
twenty-five year to life sentence imposed under a California recidivist statute for the
offense of felony grand theft (i.e., stealing three golf clubs worth approximately $1,200);
Lockyer, 538 U.S. at 77 (upholding on federal habeas review the state appellate court’s
determination that two consecutive twenty-five-year to life sentences imposed under a
state recidivist statute for two counts of petty theft did not violate clearly established
Supreme Court Eighth Amendment jurisprudence).
In Solem, the Supreme Court instructed the lower courts to consider the following
three criteria in analyzing proportionality claims under the Eighth Amendment: “(I) the
gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on
other criminals in the same jurisdiction; and (iii) the sentences imposed for commission
of the same crime in other jurisdictions.” Solem, 463 U.S. at 292.
20

The Supreme Court revisited the proportionality issue in Harmelin. In a fractured
opinion, Justice Kennedy, joined by Justices O’Connor and Souter, wrote separately to
argue for the existence of a narrow proportionality guarantee. Harmelin, 501 U.S. at
996 (Kennedy, J., concurring in part and concurring in the judgment). In reviewing the
three-part test articulated by the Court in Solemn, Justice Kennedy stated:
Solem is best understood as holding that comparative analysis within and
between jurisdictions is not always relevant to proportionality review . . . .
A better reading of our cases leads to the conclusion that intrajurisdictional
and interjurisdictional analyses are appropriate only in the rare case in
which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality
. . . . The
proper role for comparative analysis of sentences, then, is to validate an
initial judgment that a sentence is grossly disproportionate to a crime.
Id. at 1004–05. The United States Court of Appeals for the Tenth Circuit has
determined that “Justice Kennedy’s opinion in Harmelin narrows Solem and sets forth
the applicable Eighth Amendment proportionality test.” Hawkins v. Hargett, 200 F.3d
1279, 1282 (10th 1999).
The CCA conducted an abbreviated proportionality review of Applicant’s
sentence and evaluated (1) the gravity of the crime and (2) the harshness of the
penalty, relying on People v. Gaskins, 825 P.2d 30, 38 (Colo. 1992) (case relies on
Harmelin and Solem). The CCA rejected Applicant’s claim that his sentence was
grossly disproportionate to his crime based on the following reasoning:
VI. Sentence Proportionality
Defendant next contends that the trial court violated his Eighth
Amendment rights by failing to conduct an extended proportionality
review. We disagree.
Based on defendant’s status as an habitual offender, the trial court
imposed the statutorily required sentence of ninety-six years. The court
21

then conducted a proportionality review. Finding no inference of gross
disproportionality, the court concluded that, although defendant’s lengthy
criminal history consisted of nonviolent offenses, his conviction in this
case was for an extremely violent crime.
Defendant contends that he was entitled to an extended
proportionality review because his prior offenses were not grave and
serious. He further argues that, had such an extended review been
conducted, his sentence would prove grossly disproportionate in violation
of the constitutional guarantee against cruel and unusual punishment. We
disagree.
Sentence proportionality is a question of law subject to de novo
review. People v. McNally, __ P.3d __ (Colo. App. No. 04CA1654, Dec. 1,
2005).
An extended proportionality review is only necessary when the
crimes supporting the habitual sentence are not grave or serious or when
the defendant is sentenced to life with no possibility for parole. See
People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). The gravity or
seriousness of a crime is determined by considering the harm caused or
threatened to the victim or to society and the culpability of the offender.
People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002). However, some crimes
are so inherently grave and serious that they are per se considered
facially grave and serious; crimes involving violence or the potential for
violence are included in this category. See People v. Gaskins, supra, 825
P.2d at 37.
When only an abbreviated proportionality review is needed, an
appellate court is well positioned to conduct the review because there is
no need to inquire into the details of the specific offenses or conduct a
detailed comparison of sentences. See People v. Gaskins, supra, 825
P.2d at 38. An abbreviated review consists simply of a scrutiny of the
crimes supporting the habitual criminal sentence to determine whether in
combination they are so lacking in gravity or seriousness as to suggest
that the sentence is constitutionally disproportionate. People v. Gaskins,
supra, 825 P.2d at 37.
Here, the triggering offenses of attempted first degree murder, first
degree assault, and a crime of violence deadly weapon and serious bodily
injury were all inherently violent in nature and, thus, grave and serious.
See People v. Deroulet, supra, 48 P.3d at 524 (accessory to first degree
murder is inherently grave and serious); People v. Smith, 848 P.2d 365,
374 (Colo. 1993) (defining first degree murder as a “crime of the utmost
gravity”); People v. Penrod, 892 P.2d 383, 387 (Colo. App. 1994)
22

(concluding first degree assault and attempted second degree murder
unquestionably grave and serious). Furthermore, all but one of
defendant’s prior offenses were grave and serious. See Alvarez v.
People, 797 P.2d 37, 41-42 (Colo. 1990) (first degree criminal trespass is
grave and serious); People v. McNally, supra, __ P.3d at __ (second
degree burglary is grave and serious); People v. Allen, 111 P.3d 518, 520
(Colo. App. 2004) (vehicular eluding is grave and serious).
Moreover, defendant’s sentences were concurrent and subject to
parole, as well as earned time reduction. Thus, although one of
defendant’s prior offenses was not grave and serious, in combination the
gravity and seriousness of his crimes do not suggest that his statutorily
mandated ninety-six-year sentence was grossly disproportionate. No
further proportionality review is required. See, e.g., Alvarez v. People,
supra, 797 P.2d at 41 (no further review necessary when there is no
inference of disproportionality).
Velasquez, No. 03CA2449 at 17-20.
As stated above, the law is clearly established that a gross disproportionality
principle is applicable to sentences for terms of years. Lockyer, 538 U.S. at 72. For
purposes of federal habeas review of a proportionality decision, however, there is a lack
of “clear objective standards to distinguish between sentences for different terms of
years.” Harmelin, 501 U.S. at 1001. The more general the rule the more leeway courts
have in case-by-case determinations. Richter, 131 S. Ct. at 786.
The CCA addressed the gravity of Applicant’s offense and the harshness of the
penalty imposed that are factors relevant to the gross proportionality determination
under Supreme Court case law. See Ewing, 538 U.S. 22 (directing the courts to review
the gravity of the offense to determine if it matches the severity of the punishment);
Solem, 463 U.S. at 291-92; Harmelin, 501 U.S. at 1002-1004 (Kenney, J., concurring in
part and concurring in the judgment) (comparing the gravity of the petitioner’s offense to
the sentence of life imprisonment without parole). The CCA’s determination that the

23

offense of attempted first degree murder, first degree assault, and a crime of violence
with the use of a deadly weapon and serious bodily injury is a grave and serious crime
under Colorado law is not subject to challenge in this federal habeas proceeding. See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.”).
Moreover, the CCA made a reasonable determination that Applicant’s sentence was not
so harsh as to give rise to an inference of gross disproportionality based on factual
findings which are presumed correct in this federal habeas proceeding and are
supported by the state court record. Applicant does not point to any clear and
convincing evidence to the contrary.
In addition, Applicant’s sentence was statutorily mandated. This Court is
reluctant to interfere with the legislative determination of an appropriate sentence range.
See Rummel, 445 U.S. at 275-76 (concluding that length of prison sentences for serious
felonies is “properly within the province of legislatures, not courts”); Harmelin, 501 U.S.
at 998 (same) (citing Rummel). Applicant’s sentence also provides opportunity for
parole and earned time reduction. See Rummel , 445 U.S. at 280-81 (finding it
significant that the defendant had the possibility of parole, and concluded that the
possibility of parole, however unlikely, distinguished the defendant from someone
serving a life sentence without parole). And, finally, Applicant’s circumstances do not
differ significantly from those in cases where the Supreme Court has rejected Eighth
Amendment proportionality challenges. See, e.g., Harmelin, 501 U.S. at 994; Hutto,
454 U.S. at 375.

24

A constitutional violation based on the gross proportionality principle is reserved
for “only the extraordinary case.” Lockyer, 538 U.S. at 77. Furthermore, the CCA’s
decision was not “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. at 786-87.
Based on the above findings, the CCA decision regarding Applicant’s
proportionality claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
E. Claim Six
In this claim, Applicant asserts prosecutorial misconduct took place during
closing and rebuttal argument because the prosecution (1) misstated the law
concerning the requisite mens rea necessary for a conviction of an attempted first
degree murder charge; and (2) stated that he believed Applicant was guilty and the jury
need to convict Applicant to protect society. Application at 7.
Habeas relief is available for prosecutorial misconduct only when the misconduct
is so egregious that it renders the entire trial fundamentally unfair. See Donnelly v.
DeChristoforo, 416 U.S. 637, 645-48 (1974). In order to determine whether
prosecutorial misconduct rendered the trial fundamentally unfair, the Court must
consider “the totality of the circumstances, evaluating the prosecutor’s conduct in the
context of the whole trial.” See Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir.
25

1998). The prosecution is forbidden from deliberately deceiving the court and jury. See
Gray v. Netherland, 518 U.S. 152, 165 (1996). Applicant bears the burden of
establishing a claim of deception, which the Court reviews de novo. See Foster v.
Ward, 182 F.3d 1177, 1191-92 (10th Cir. 1999).
“Inappropriate prosecutorial comments, standing alone, would not justify a
reviewing court to reverse a criminal conviction obtained in an otherwise fair
proceeding.” United States v. Young, 470 U.S. 1, 11 (1985). The courts must
“consider the probable effect the prosecutor’s [statements] would have on the jury’s
ability to judge the evidence fairly.” Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir.
2000) (quoting Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998), cert. denied,
526 U.S. 1025 (1999)). The federal habeas court does not consider a prosecutor’s
statement or argument “word by word in a vacuum.” Paxton v. Ward, 199 F.3d 1197,
1217 (10th Cir. 1999).
In making this assessment, a court should examine whether “the prosecutor’s
argument . . . manipulate[d] or misstate[d]” the evidence, whether “it implicate[d] other
specific rights of the accused such as the right to counsel or the right to remain silent,”
whether “the objectionable content was invited by or responsive to the opening
summation of the defense,” and whether “[t]he weight of the evidence against applicant
was heavy.” Darden v. Wainwright, 477 U.S. 168, 181-82 (1986). “Any cautionary
steps-such as instructions to the jury-offered by the court to counteract improper
remarks,” are also relevant. Bland v. Sirmons, 459 F.3d 999, 1024 (10th Cir. 2006)
(alteration in original) (internal quotation marks and citation omitted). “Inquiry into
fundamental fairness requires examination of the entire proceedings,” and “[c]ounsel’s
26

failure to object to the comments, while not dispositive, is also relevant to a fundamental
fairness assessment.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citations
omitted and emphasis added).
“[I]t is not enough that the prosecutors’ remarks were undesirable or even
universally condemned.” Darden, 477 U.S. at 181 (internal quotation marks omitted).
Rather, “[t]he ultimate question is whether the jury was able to fairly judge the evidence
in light of the prosecutors’ conduct.” Bland, 459 F.3d at 1024.
In addressing this claim, the CCA found as follows:
V. Prosecutor’s Closing Arguments
Although defendant did not object at trial, he now contends that two
instances of prosecutorial misconduct during closing and rebuttal closing
argument require reversal. We disagree that either comment, or the
cumulative effect of both, constitutes plain error.
Allegations of prosecutorial misconduct not objected to at trial are
reviewed for plain error, which occurs only when the prosecutor’s actions
are flagrant or glaringly or egregiously improper, and undermine the
fundamental fairness of the trial so as to cast serious doubt on the
reliability of the conviction. People v. Wallace, 97 P.3d 262, 268-69 (Colo.
App. 2004).
Defendant argues that when the prosecutor told the jury that
defendant’s statement, “I’m going to kill you,” constituted deliberation, he
misstated the law regarding the requisite mental state for the attempt
element of the crime of attempted first degree murder. However, the jury
was properly instructed on the element of deliberation, and, properly
considered in context, this comment was merely argument by the People
that defendant’s statements and inferences legitimately drawn therefrom
were sufficient to prove the element of deliberation.
Nor did the People’s request to the jury to hold defendant
“accountable” constitute plain error. Even if improper, the prejudicial effect
of the comment was negligible and did not cast doubt upon the reliability
of his conviction.
Velasquez, No. 03CA2449 at 16-17.
27

A review of the trial court’s alleged error is subject to the plain error test.
Colorado’s plain error test is rooted in due process. See People v. Kruse, 839 P.2d 1, 3
(Colo. 1992) (“Plain error occurs when . . . the error so undermined the fundamental
fairness of the trial itself as to cast serious doubt on the reliability of the judgment of
conviction.") (internal quotation marks omitted). Because there is no practical distinction
between Colorado’s plain error test and the federal due process test that requires
reversal when error “so infused the trial with unfairness as to deny due process of law,”
Estelle, 502 U.S. at 75 (internal quotation marks and citation omitted), the deferential
standard of review applies unless the CCA unreasonably applied federal due process
law, see Thornburg v. Mullin , 422 F.3d 1113, 1124-25 (10th Cir. 2005) (citing 28 U.S.C.
§ 2254(d)).
The trial court instructed each of the jurors that the closing arguments are not
evidence and they are to determine the facts of the case based solely on the evidence.
July 7, 2003 Trial Tr. at 151-52. Jurors are presumed to follow the instructions given
and give less weight to counsel’s arguments. See Weeks v. Angelone, 528 U.S. 225,
234 (2000); Boyde v. California, 494 U.S. 370, 384 (1990) (explaining that “arguments
of counsel generally carry less weight with a jury than do instructions from the court”).
The Court also has reviewed the trial court’s instruction on deliberation and finds the
instruction was proper. July 9, 2003 Trial Tr. at 56-57.
Even if the prosecutors’ comments were improper, they did not infuse the trial
with unfairness and result in a denial of due process of law. The comments were
fleeting, based on argument not evidence, and do not provide a basis for finding the jury
was unable to fairly judge the evidence in light of the prosecutors’ conduct. The CCA
28

decision regarding this claim, therefore, did not result in a decision that was contrary to,
or involve an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States and did not result in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Claim Six, therefore, fails to assert a claim for
federal habeas relief and is dismissed for lack of merit.
F. Claim Seven
In this Claim, Applicant sets forth five claims of ineffective assistance of trial
counsel. Application at 7-8.
It was clearly established when Applicant was convicted that a defendant has a
right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668
(1984). To establish that counsel was ineffective, Applicant 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 an applicant’s burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id.
Under the prejudice prong, an applicant 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 assessing prejudice under
29

Strickland the question is whether it is reasonably likely the result would have been
different. Harrington v. Richter, 131 S. Ct. at 791. “The likelihood of a different result
must be substantial, not just conceivable.” Id. at 792 (citing Strickland, 466 U.S. at
693.)
Furthermore, under AEDPA, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard,” which is the
question asked if the claim came to the court “on direct review of a criminal conviction in
a United States district court.” Richter, 131 S. Ct. at 785. “When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question is “whether
there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Id. at 788.
If Applicant fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claim must be dismissed. See id. at 697. Also, ineffective
assistance of counsel claims are mixed questions of law and fact. Id. at 698.
The Court will address each of the five ineffective assistance claims as follows.
1. Coercion to not testify
In the Court’s February 1, 2013 Order, Respondents were directed to brief the
substantialness of this claim under Martinez v. Ryan, 132 S. Ct. 1309, 1312 (2012).
Although Applicant raised a Martinez issue in his Reply to the Pre-Answer Response
regarding this claim, asserting a basis for procedural default of the claim, he has not
replied to Respondents’ briefing on the substantialness of the claim.

30

In Martinez, the U.S. Supreme Court held that a “procedural default will not bar a
federal habeas court from hearing a substantial claim of ineffective assistance at trial if,
in the [State’s] initial-review collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.” Martinez, 132 S. Ct. at 1320. The narrow exception in
Martinez to find cause for excusing such a default is based on if
(1) the ineffective-assistance-of-trial-counsel claim was a “substantial”
claim; (2) the “cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the “initial” review proceeding in
respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state
law requires that the claim “be raised in an initial-review collateral
proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1913 (2013) (quoting Martinez, 132 S. Ct. at 1320.)
(internal quotation marks omitted).
Respondents assert the trial court gave Applicant a People v. Curtis, 681 P.2d
504 (Colo. 1984), advisement instructing Applicant that he had the right to testify or not
to testify, that if he chose to remain silent the jury could not use that decision against
him, and that he should discuss the decision with trial counsel, but the decision was his
personal decision to make. Respondents further assert Applicant told the trial court that
he had chosen not to testify and had made the decision freely and voluntarily. A review
of the trial court transcript indeed shows that Applicant was given a Curtis instruction
and he freely and voluntarily chose not to testify. July 9, 2003 Trial Tr. at 25-28. Based
on these findings, Respondents conclude that Applicant’s claim is without factual
support in the record and is insubstantial. Therefore, Applicant has failed to show
cause for the default of this claim based on Martinez. This claim will be dismissed as
procedurally barred from federal habeas review.
31

2. Failure to raise affirmative defense of voluntary intoxication/Failure to
conduct reasonable investigation and interview witnesses to support voluntary
intoxication defense
The CCA addressed these issues as follows:
An attorney has a duty to investigate possible defenses or make
reasonable determinations not to pursue them. See People v. Bergerud,
223 P.3d 686, 705 (Colo. 2010). A decision not to investigate certain
witnesses does not amount to ineffective assistance of counsel if it is
made in the exercise of reasonable professional judgment. See People v.
Apodaca, 998 P.2d 25, 29 (Colo. App. 1999).
A defendant may present a voluntary intoxication defense to negate
the existence of the specific intent element of the crime charged. See §
18-1-804(1), C.R.S. 2011. However, pursuing such a defense may be
inconsistent with or may potentially undermine a defendant’s theory of
defense. See People v. Villarreal, 131 P.3d 1119, 1125 (Colo. App. 2005)
(where the defendant’s defense was that she was not the person who
attacked the victim, “[p]roviding the jury with an intoxication instruction
would have been inconsistent with, and potentially undermining of, her
theory of defense”).
Here, the postconviction court found that:
• Trial counsel knew about the intoxication defense and
understood the nature of that defense;
• Trial counsel explored with defendant “the collateral
consequences of pursuing that defense in terms of
diminishing other potential defenses,” including self-defense;
• Trial counsel made an informed decision “after
investigation had been completed, an investigator had been
utilized, numerous witnesses had been interviewed, and
discovery had been reviewed”; and
• Trial counsel’s decision “was a thoughtful decision made by
[him] at the time, after reviewing the evidence, and the legal
options available to him, and understanding that the. . .
voluntary intoxication defense had limited utility” based on
“his experience in hundreds of cases” and could have
adversely impacted defendant’s pursuit of other defenses.

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The court’s findings are supported by the record. At the Crim. P.
35(c) hearing, trial counsel testified that:
• He had tried more than 300 cases and had dealt with the
potential defense of voluntary intoxication many times and
the ramifications and subtleties involved with presenting the
defense;
• In his experience, a defendant did not “fare[] well” with
intoxication as a defense, even in cases where he put on an
expert witness who could testify about the defendant’s blood
alcohol level;
• In this case, there was no blood alcohol test to rely upon;
• Putting on evidence of defendant’s intoxication would have
opened the door to other bad character evidence;
• Although trial counsel could not recall exactly why he
recommended not to pursue an intoxication defense, he
testified that he made the decision and recommended it to
defendant, and defendant agreed with the decision;
• The decision was made after he obtained discovery,
interviewed witnesses, and was advised by defendant of
“what he would have been consuming that day”; and
• At trial, he attempted to implicate codefendant in the crime.
It further appears that trial counsel made a reasonable
determination not to interview the witness who supposedly could testify to
the quantity of alcohol defendant consumed, once the decision had been
made not to pursue the defense of voluntary intoxication.
We defer to the postconviction court’s findings because they are
supported by the record. See Kyler, 991 P.2d at 818. The court’s findings
support a conclusion that trial counsel made a reasonable and informed
strategic decision to forgo the voluntary intoxication defense, he explained
the decision to defendant, and defendant agreed with the decision at the
time it was made. Trial counsel reviewed discovery, interviewed
witnesses, and knew that defendant had consumed a substantial amount
of alcohol that day. He then relied on his experience of pursuing the
intoxication defense in other cases in making a reasonable strategic
decision not to pursue it in defendant’s case.

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While counsel did not interview the potential witness who may have
been able to confirm the amount of alcohol defendant had consumed,
defendant had told trial counsel what he had drunk and what that witness
would likely say. Although trial counsel testified that “[they] did not think
[they] would have sufficient evidence to convince a jury regarding
intoxication,” that statement, alone, does not support a conclusion that trial
counsel’s decision not to interview the witness constituted deficient
performance. Rather, the record as a whole shows that trial counsel relied
on (1) his experience that intoxication defenses did not do well even when
an expert witness testified about the defendant’s blood alcohol level, and
(2) the fact that there was no blood alcohol test to rely on in this case.
Therefore, we agree with the postconviction court that trial counsel’s
decision was made with the reasonable understanding that the “voluntary
intoxication defense had limited utility.”
Further, while counsel did not pursue a self-defense theory at trial,
the failure to do so was due to defendant’s own conduct. Trial counsel
also attempted to implicate codefendant in the crime, which would have
been inconsistent with an intoxication defense. See Villarreal, 131 P.3d at
1125. Under these circumstances, we conclude that the postconviction
court properly determined that trial counsel’s performance was not
deficient.
Based on our conclusion that trial counsel was not deficient, we
need not review defendant’s argument that trial counsel’s performance
prejudiced his defense. See Karpierz, 165 P.3d at 759.
People v. Velasquez, No. 11CA0450, 5-10 (Colo. App. June 14, 2012).
“The duty to investigate derives from counsel’s basic function . . . to make the
adversarial testing process work in the particular case.” Williamson v. Ward, 110 F.3d
1508, 1514 (10th Cir. 1997) (internal quotation marks omitted). “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. (internal quotation marks omitted). “[S]trategic choices
made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable

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decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 69091.
Even if trial counsel was ineffective in not conducting a reasonable investigation
and interviewing witnesses that would support a voluntary intoxication defense,
Applicant fails to assert how he was prejudiced by trial counsel’s conduct. Applicant
does not assert what trial counsel would have discovered if he had investigated and
interviewed witnesses that would support a voluntary intoxication defense. Moreover, in
light of the evidence presented in the state court proceedings, the CCA’s determination
was reasonable. As a result of the evidentiary hearing held by the Rule 35(c) court, the
trial court found that trial counsel reviewed discovery, interviewed witnesses, knew that
Applicant had consumed a substantial amount of alcohol, and relied on his experience
in pursuing the intoxication defense in other cases in making his strategic decision not
to pursue this defense in Applicant’s case. The factual findings relied on by the trial
court are presumed correct in this federal habeas proceeding and are supported by the
state court record. Feb. 11, 2011 Hr’g Tr. At 1-64. Because Applicant does not point to
any clear and convincing evidence to the contrary, I find that Applicant has not
demonstrated 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 the above findings, the CCA decision regarding Applicant’s
investigation and interview claim did not result in a decision that was contrary to, or
involve an unreasonable application of, clearly established federal law, as determined
by the Supreme Court of the United States and did not result in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented
in the state court proceeding. This claim, therefore, lacks merit and will be dismissed.
3. Failure to object to prosecution’s misstatements of law and
misconduct in closing and rebuttal arguments
Applicant asserts that trial counsel was ineffective for not objecting to the
prosecution’s closing remarks, which prevented review under the lesser standard of
harmless error rather than plain error on direct appeal.
The CCA addressed this issue as follows:
3. Failure to Object to Prosecutor’s Closing
Velasquez also contends that counsel’s performance at trial was
deficient because he failed to object to certain statements by the
prosecution during closing argument. Specifically, Velasquez argues that
the prosecution misstated the law by telling the jury Velasquez’s alleged
statement to the victim, “I’m going to kill you,” was sufficient to show he
acted after deliberation and that the prosecutor improperly interjected his
personal opinion when he urged the jury to hold Velasquez accountable
for the victim’s injuries.
We note that on direct appeal Velasquez argued that these same
remarks were improper and required reversal of his convictions. Since his
trial counsel did not object, the panel reviewed these remarks under the
plain error standard. The panel found the jury was properly instructed on
the element of deliberation and it was not improper for the prosecution to
argue that the jury could infer from such a statement that Velasquez acted
with the requisite deliberation. In addition, the panel found that even if it
were improper for the prosecution to tell the jury Velasquez should be held
accountable for his actions, any prejudicial effect from the comment was
minimal.
Velasquez now renews these arguments in the context of a claim of
ineffective assistance of counsel. Even if we assume that counsel should
have objected to these remarks, to satisfy the second prong of Strickland
Velasquez must show that such objection would have created a
reasonable probability that the outcome of the trial would have been
different. We conclude on the trial record this prong is not met. We agree
with the panel’s statement in Velasquez’s direct appeal: the jury was
properly instructed on deliberation and could properly infer deliberation
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from his remark, and the reference to holding him accountable had a
minimal prejudicial effect, if any.
Velasquez, No. 07CA1796 at 8-9.
Applicant does not specify in the Application what remarks trial counsel should
have challenged. In his postconviction motion he asserted ineffective assistance of
counsel because trial counsel failed to object to the same remarks he challenged in his
direct appeal as improper. As I stated above, the comments were fleeting, based on
argument not evidence, and do not provide a basis for finding the jury was unable to
fairly judge the evidence in light of the prosecutors’ conduct. Therefore, I find that
Applicant was not prejudiced by these remarks.
Based on the above findings, the CCA decision regarding Applicant’s closing
remarks claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
4. Cumulative error
The cumulative error doctrine applies only when there are two or more actual
errors, and it does not apply to the accumulation of non-errors. Castro v. Ward, 138
F.3d 810, 832 (10th Cir. 1998). On federal habeas review, a cumulative error analysis
applies only to cumulative constitutional errors. Young v. Sirmons, 551 F.3d 942, 972
(10th Cir. 2008). Since none of the ineffective assistance claims have been found to
state a constitutional error, the cumulative error claim will be dismissed for lack of merit.

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G. Claim Eight
In this claim, Applicant asserts that he was denied his right to a jury trial on the
habitual criminal counts in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Application at 8. The Court will dismiss this claim for lack of merit. Apprendi clearly
exempts judicial factfinding regarding prior convictions from the rule that only a jury may
constitutionally find facts which increase a defendant’s maximum sentence. United
States v. Moore, 401 F.3d 1220, 1223-24 (10th Cir. 2005); see also United States v.
Delacruz-Soto, 414 F.3d 1158, 1164 n. 2 (10th Cir. 2005) (noting that AlmendarezTorres, 523 U.S. 224 (1998), forecloses argument that a jury, not the sentencing court,
must find that defendant had prior convictions). Even though the recidivism exception
announced in Almendarez-Torres, has been eroded, the Supreme Court has not
overruled the exception. See Moore, 401 F.3d at 1224.
IV. Conclusion
For the foregoing reasons, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, ECF No. 6, is DENIED. It is
FURTHER ORDERED that I sua sponte deny the issuance of a Certificate of
Appealability pursuant to 28 U.S.C. § 2253(a). Having considered the standards of
Slack v. McDaniel, 529 U.S. 473, 484 (2000), I find that Applicant has not made a
substantial showing of the denial of a constitutional right such that reasonable jurists
could disagree as to the disposition of his petition. 28 U.S.C. § 2253(c)(2). It is
FURTHER ORDERED that I also sua sponte certify pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in
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forma pauperis status will be denied for the purpose of appeal. See Coppedge v.
United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also
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.
Dated: February 5, 2014.
BY THE COURT:

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

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