Gilbert v. Morgan County District Court
ORDER FOR DISMISSAL re 2 : the application for writ of habeas corpus is denied and this civil action is dismissed, by Judge Richard P. Matsch on 4/23/2014. (jsmit)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 14-cv-00271-RPM
RONALD ARTHUR GILBERT,
MORGAN COUNTY DISTRICT COURT (PROBATION DEPARTMENT) and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER FOR DISMISSAL
In his Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254,
Ronald Arthur Gilbert claims that his convictions by jury verdict of violation for unlawful
sexual contact (at risk victim) and unlawful sexual contact and sentence to four-years
sex offender intensive supervised probation should be vacated and set aside because
(1) his constitutional right to due process of law under the Fifth Amendment and
Fourteenth Amendment to the United States Constitution was violated by the Colorado
Court of Appeals ex post facto judicial revision of C.R.S. 18-1-405 and (2) his
constitutional right to present a defense and confront a prosecution witness was violated
by the trial court’s limitation on cross examination concerning prior sexual experience
and prior criminal conduct. A magistrate judge entered an Order to File Pre-Answer
Response on February 4, 2014, limited to the issues of timeliness and exhaustion of
state court remedies. . The respondent filed the pre-answer response on March 21,
2014. . In that response the respondents admit timeliness of the application and
asserted a failure to exhaust the claims other than the refusal to permit cross
examination about alleged prior sexual experience of a prosecution witness. The
applicant filed his reply on April 10, 2014. .
This court has now reviewed the application on the merits and concludes that the
applicant has failed to set forth a sufficient claim of constitutional error, requiring
dismissal under Rule 4 of the Rules Governing Section 2254 Cases.
The ex post facto claim asserts that the Colorado Court of Appeals in the
judgment affirming the convictions, April 11, 2013, Exhibit D to the application, revised
the standards for granting a continuance under the Colorado Speedy Trial Act, C.R.S. §
18-1-405(6)(g) because the continuance was granted without evidence that the
unavailable witness would be available if a continuance is granted. The trial was
continued for three and one-half months because of the court’s acceptance of the
prosecutor’s statement that the witness was hospitalized for a diabetic coma. The
continuance was an extension of a statutory right to speedy trial and the extent of the
continuance in this case is not a violation of the constitutional protection of speedy trial
provided by the Sixth Amendment. The assertion that the Colorado Court of Appeals
revised previous law concerning the state statute does not present a claim under the
United States Constitution.
The limitations on cross examination of the witness both with regard to prior
sexual experience and criminal conduct are not shown to be outside the trial court’s
discretion and do not establish a violation of the confrontation clause of the Sixth
Amendment or the protection of counsel under that amendment and do not constitute a
violation of the due process clause of the Fourteenth Amendment.
Accordingly, it is now
ORDERED that the application for writ of habeas corpus is denied and this civil
action is dismissed.
DATED: April 23rd, 2014
BY THE COURT:
s/Richard P. Matsch
Richard P. Matsch, Senior Judge
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