Esparza v. Falk et al

Filing 27

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 1 is denied and this case is dismissed with prejudice. There is no basis on which to issue a certificate ofappealability under 28 U.S.C. § 2253(c). Leave to proceed in forma pauperis is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. Applicants request 26 for copies of documents from the state court record, filed on December 9, 2014, is denied. Signed by Judge Christine M. Arguello on 1/5/2015. (shart)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-01186-CMA
GABRIEL ESPARZA,
Applicant,
v.
JAMES FALK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. # 1) (“the Application”) filed by Applicant Gabriel
Esparza. Respondents have filed an Answer to Petition for Writ of Habeas Corpus
(Doc. # 21) (“the Answer”) and Mr. Esparza has filed a Reply to Respondents’ Answer
(Doc. # 25) (“the Reply”). After reviewing the record, including the Application, the
Answer, the Reply, and the state court record, the Court FINDS and CONCLUDES that
the Application should be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Esparza is challenging the validity of his conviction and sentence in the
Arapahoe County District Court case number 04CR1256. In direct appeal proceedings,
the Colorado Court of Appeals summarized the factual background of Mr. Esparza’s
conviction as follows:
1

Defendant, Gabriel Esparza, appeals his judgment of
conviction from the Arapahoe County District Court, entered
upon a jury verdict, for first degree murder after deliberation
of Tina Esparza, his estranged wife, aggravated motor
vehicle theft, and violation of a criminal restraining order.
We affirm.
In December 2003, five months before she was
murdered, Tina Esparza discovered that defendant had been
secretly videotaping her daughters in various states of
undress with devices hidden in a bedroom and bathroom of
the family home. She notified law enforcement authorities,
who filed sexual assault charges against defendant in
Jefferson County, Case No. 03M6227, and obtained a
protection order for herself and two of her daughters, which
required defendant to vacate the family home and move to a
separate resident. The couple began the process of
dissolving their marriage.
During the months following the separation, defendant
was seen in the neighborhood of the family home, took his
wife’s truck from the parking garage at the Englewood Civic
Center (ECC) where she worked, and violated the protection
order in early May 2004 by sending flowers to his wife for
Mother’s Day under the daughters’ names. Shortly after
noon on May 14, 2004, witnesses heard a loud noise come
from the parking garage at the ECC, found Tina Esparza’s
body lying in a pool of blood on the floor of the parking
structure, and saw a gray van speeding out of the garage.
Defendant’s wife was dead on arrival at Swedish Medical
Center. The following day, defendant turned himself in to
the Clear Creek County Sheriff’s Department after seeing
the murder described in a newspaper and learning that he
was wanted for the murder.
Through counsel at his trial, defendant did not deny
shooting his wife but argued in both opening statement and
closing argument that he was guilty only of reckless
manslaughter because his actions were impulsive and
unexpected, not premeditated.
People v. Esparza, No. 05CA1952, slip op. at 1-2 (Colo. App. Apr. 30, 2009) (Doc. # 8-7
at 3-4). The judgment of conviction was affirmed on direct appeal. Id. On July 20,

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2009, the Colorado Supreme Court denied Mr. Esparza’s petition for writ of certiorari.
(See Doc. # 1-2).
On December 7, 2009, Mr. Esparza filed in the state district court a
postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal
Procedure. (See Doc. # 8-1 at 4). Mr. Esparza also requested appointment of
postconviction counsel, but the state district court did not appoint counsel and
summarily denied his Rule 35(c) motion. (See Doc. # 1-3). On January 19, 2012, the
Colorado Court of Appeals affirmed the trial court’s order denying the Rule 35(c) motion.
(See Doc. # 1-4 at 2). On September 23, 2013, the Colorado Supreme Court denied
Mr. Esparza’s petition for writ of certiorari. (See Doc. # 1-5).
On April 28, 2014, Mr. Esparza filed the § 2254 Application asserting seven
claims for relief. He asserts in Claim One that his Fourth Amendment rights were
violated when he was arrested without a warrant and searched. He contends in Claim
Two that the trial court violated his Fourth Amendment rights by denying his motion to
suppress evidence from invalid searches. Mr. Esparza asserts in Claim Three that he
was tried before a biased judge who should have recused himself in violation of his due
process rights under the Fifth and Fourteenth Amendments. He asserts in Claim Four
that the trial court violated his due process rights under the Sixth and Fourteenth
Amendments by making prejudicial evidentiary rulings. He alleges in Claim Five that his
due process rights were violated because the prosecution misled defense counsel and
the trial court refused to hold a suppression hearing. Mr. Esparza asserts in Claim Six
that his due process rights were violated by prosecutorial misconduct. Mr. Esparza
finally contends in Claim Seven that he received ineffective assistance of trial counsel
3

because (a) counsel did not conduct a sufficient investigation into his casino alibi
defense; (b) counsel failed to secure a Gun Shot Residue expert to challenge the
State’s interpretation of the CBI test results; (c) counsel did not represent him during the
motions hearing concerning a forced handwriting exemplar; and (d) counsel infringed on
his right to plead not guilty and to testify on his own behalf by admitting his guilt to the
jury in opening statements. The Court previously entered an Order to Dismiss in Part
dismissing Claim 7(c) as unexhausted and procedurally barred. (See Doc. # 19).
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Mr. Esparza
liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam); 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.
28 U.S.C. § 2254(d). Mr. Esparza 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
4

statement of reasons by the state court for rejecting the claim. Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011). In particular, “determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.” Id. at
784. Thus, “[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.” Id. at 784-85. Even “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. at 784. In other words, 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.
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
the 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
5

(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]
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.
House, 527 F.3d at 1018.
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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. Furthermore,
[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Richter, 131 S. Ct. at 786 (internal quotation marks omitted). In conducting 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”).
7

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 the 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 MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see
also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted

8

harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious effect” on the jury’s
verdict. 507 U.S. at 637. “A ‘substantial and injurious effect’ exists when the court finds
itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” Bland, 459 F.3d
at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave doubt” exists
when “the matter is so evenly balanced that [the Court is] in virtual equipoise as to the
harmlessness of the error.” O’Neal, 513 U.S. at 435. The Court makes this harmless
error determination based upon a review of the entire state court record. See Herrera v.
Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
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).
III. MERITS OF APPLICANT’S REMAINING CLAIMS
A. Claim One
Mr. Esparza alleges he was arrested without a warrant and searched in violation
of the Fourth Amendment. (Doc. # 1 at 5-7). Specifically, he asserts that the trial court
erred in failing to suppress evidence obtained by the search because the trial court
incorrectly found that Mr. Esparza was validly arrested based on the restraining order
violation. (Id. at 6). Mr. Esparza also contends that the trial court erred in finding, in the
alternative, that even if the arrest was not valid, a good faith exception applied and thus
exclusion of the evidence was not required, as explained in Herring v. United States,

9

129 S. Ct. 695 (2009). (Id. at 7).
The Fourth Amendment protects against unreasonable search and seizure and is
generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S.
213, 254 (1983). In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme
Court limited federal habeas review of alleged Fourth Amendment violations. In Stone,
the Supreme Court held that
[W]here the State has provided an opportunity for full and
fair litigation of a Fourth Amendment Claim, the Constitution
does not require that a state prisoner be granted federal
habeas corpus relief on the ground that evidence obtained in
an unconstitutional search or seizure was introduced at his
trial.
Id. at 481-82.
The United States Court of Appeals for the Tenth Circuit has noted that
“[a]lthough Stone announced a verbal standard, it failed to clothe the words ‘opportunity
for full and fair litigation’ with any precise meaning.” Gamble v. State of Okla., 583 F.2d
1161, 1164 (10th Cir. 1978). Therefore, the Tenth Circuit has determined that the
meaning of the phrase, “opportunity for full and fair litigation,” “includes, but is not
limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment
claim.” Id. at 1165. It also includes the full and fair evidentiary hearing contemplated by
Townsend v. Sain, 372 U.S. 293 (1963). Id. Furthermore, it contemplates recognition
and at least a colorable application of the correct Fourth Amendment constitutional
standards. Id. “Thus, a federal court is not precluded from considering Fourth
Amendment claims in habeas corpus proceedings where the state court wilfully refuses
to apply the correct and controlling constitutional standards.” Id.; see also Sanders v.

10

Oliver, 611 F.2d 804, 808 (10th Cir. 1979).
In his state court proceedings, Mr. Esparza’s counsel filed a motion to suppress
evidence obtained from the search subsequent to his arrest. (Doc. # 8-1 at 16). After
hearing the testimony of police officers regarding Mr. Esparza’s arrest and the
arguments of counsel, the trial court denied the motion to suppress, finding that the
arresting officers had confirmed an active warrant through dispatch and that the seizure
of Mr. Esparza was valid based on the restraining order violation. (See State Court R.,
2/24/05 Hrg. Trans. at 393-484; 3/16/05 Hrg. Trans. at 495-574).
On appeal, the Colorado Court of Appeals addressed the merits of Mr. Esparza’s
Fourth Amendment claim as follows:
Suppression rulings present issues of both law and fact.
People v. Alameno, 193 P.3d 830, 834 (Colo. 2008). “[W]e defer to the
factual findings of the court so long as there is sufficient evidence in
the record to support the findings, but we subject the trial court’s legal
conclusions to de novo review.” People v. Arroya, 988 P.2d 1124,
1129 (Colo. 1999).
At the preliminary hearing, a deputy from the Jefferson County
Sheriff’s Office testified that he had been investigating the restraining
order violation stemming from Tina Esparza’s allegation that defendant
had sent her flowers in her daughters’ names. After the deputy
communicated with the flower shop, he determined that he had
probable cause to arrest defendant. The deputy discussed the
situation with defendant over the phone on the day before the murder,
indicating that defendant might be charged with violating the
restraining order.
On May 14, 2004, the day of the murder, when the deputy
learned that Tina Esparza had been killed, he faxed an affidavit for an
arrest warrant for the restraining order violation to the Jefferson County
duty judge, who signed it and faxed it back to him at 6:05 p.m. The
portion of the form filled out by the deputy contains a checked box next
to “AFFIDAVIT FOR ARREST WARRANT”; the portion apparently filled
out by the judge contains a checked box next to “Probable Cause
FOUND,” but no mark appears in the box corresponding to “Arrest
11

Warrant Issued.”
However, the only arrest warrant for violation of the restraining
order found in the record is dated May 26, 2004. Nonetheless, an
entry was made by the Colorado Crime Information Center (CCIC) at
7:05 p.m., after the judge approved the issuance of an arrest warrant,
indicating that the warrant was issued. In reliance upon this computer
entry, the Clear Creek County Sheriff arrested defendant when he
turned himself in the next day, and pursuant to the arrest, searched
him.
We first conclude that the trial court did not err in finding that
defendant was validly arrested based on the restraining order violation.
Although the judge did not check a box on the form presented to him,
he expressly found that probable cause existed to arrest defendant for
the restraining order violation, thus satisfying the formalities required
for the issuance of an arrest warrant under Crim. P. 4.2. Defendant
does not argue that the finding of probable cause was erroneous.
Although the paper arrest warrant was apparently not issued at the
time the judge approved the issuance of a warrant, the CCIC database
correctly showed that defendant was wanted for a violation of the
restraining order, supplying probable cause for defendant’s arrest.
Since the arrest of defendant was valid, the search incident to
the arrest was valid, and items seized in that search were admissible in
defendant’s subsequent murder trial, even though the arrest was for
violation of the restraining order. An officer conducing a search
incident to a lawful custodial arrest “may seize and examine weapons,
contraband, or other articles which the officer reasonably believes to
be related to criminal activity even though these articles do not directly
relate to the offense for which the arrest itself was effected.” See
People v. Bischofberger, 724 P.2d 660, 665 (Colo. 1986).
Alternatively, even if defendant’s arrest was not valid, the denial
of his suppression motion is warranted under section 16-3-308, C.R.S.
2008, which provides that evidence shall not be suppressed if seized
as a result of a good faith mistake or a technical violation. A good faith
mistake is defined as “a reasonable judgmental error concerning the
existence of facts . . . which if true would be sufficient to constitute
probable cause.” § 16-3-308(2)(a).
Here, the Clear Creek County Sheriff’s Department, relying on
the information in the CCIC database, arrested defendant in the belief
that there was a warrant for his arrest. If in fact there was no such
warrant, the sheriff’s department made a good faith mistake as to its
12

existence.
Evidence seized in the custodial search need not be excluded if
the arresting officers had a good faith, but erroneous, belief that an
arrest warrant was in effect. In People v. Blehm, 983 P.2d 779, 795-96
(Colo. 1999), the court applied the good faith exception to the
exclusionary rule with respect to a search incident to the execution of
an arrest warrant that had been vacated by the court unbeknownst to
the arresting officers. Because there was no indication that the officers
were objectively unreasonable in relying upon their understanding that
the warrant was still in effect, the suppression motion was denied.
Here, whether the failure to issue the arrest warrant was due to
a fault of the court or negligence of Jefferson County deputy is not
clear. However, under Herring v. United States, ___ U.S. ___, 129 S.
Ct. 695 (2009), the uncertainty does not determine the outcome on
these facts.
In Herring, the United States Supreme Court extended the good
faith exception to the exclusionary rule, as recognized in Arizona v.
Evans, 514 U.S. 1 (1995), to a situation where a law enforcement
agency, rather than a court, was responsible for an erroneous
outstanding warrant remaining in the database. In Herring, the
arresting officers relied on information from the database of another
county’s law enforcement agency indicating a valid warrant for the
arrest of the defendant. Although the arresting officers learned almost
immediately after the arrest that the computer information was
inaccurate, the contraband seized in the interim was not excluded.
The Supreme Court emphasized that if the police had been shown to
be reckless in maintaining a warrant system or had knowingly made
false entries to lay the groundwork for a future arrest, the need for
deterrence of such conduct would justify exclusion. ___ U.S. at ___,
129 S. Ct. at 703. No such showing of recklessness or intentional
entry of false information was made in this case, and therefore we
conclude suppression was not required.
People v. Fields, 785 P.2d 611 ( Colo. 1990), on which
defendant relies, is distinguishable from this case. In Fields, not only
was no arrest warrant issued for the arrest of the former parolee, who
was charged with a crime based on contraband found in a search
incident to his arrest, but also there was no authority or probable cause
whatsoever to arrest him on the purported parole violation because his
parole had expired. In defendant’s situation, however, there is no
dispute that probable cause existed to arrest him for violating the
restraining order.
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Thus, the trial court’s denial of the motion to suppress evidence
seized at the time of defendant’s arrest was proper.
(Doc. # 8-7 at 5-11).
Mr. Esparza challenges the state courts’ factual findings that there was a valid
warrant at the time of his arrest and that even if there was no valid warrant for his arrest,
that there was a good faith mistake as to the warrant’s existence. Specifically, Mr.
Esparza asserts that the factual finding that “the CCIC database correctly showed that
defendant was wanted for a violation of the restraining order, supplying probable cause
for defendant’s arrest” was contrary to the testimony and evidence provided regarding
the CCIC printout during the suppression hearing. (See Doc. # 25 at 3-4). Mr. Esparza
also asserts that the state appellate court’s alternative finding that there was a good
faith mistake as to the existence of a warrant also was contrary to the testimony and
evidence presented during the hearing. (Doc. # 1 at 6-7; Doc. # 25 at 6). He contends
that the arresting officers’ testimony established that they never verified the purported
warrant in the CCIC printout, which demonstrates an actual showing of recklessness.
(Doc. # 1 at 7).
Mr. Esparza bears the burden to refute the state courts’ factual findings with clear
and convincing evidence. 28 U.S.C. § 2254(e)(1). The factual findings, which are
presumed correct in a federal habeas proceeding, are supported by the state court
record of the suppression hearing. (See State Court R., 2/24/05 Hrg. Trans. at 393484; 3/16/05 Hrg. Trans. at 495-574). The Court finds that Mr. Esparza has not pointed
to anything in the hearing transcripts that clearly contradicts the state courts’ factual
findings.

14

The Court further finds that the state courts considered applicable law in deciding
that the Fourth Amendment was not implicated by Mr. Esparza’s search and seizure.
Specifically, the state courts relied on federal and state case law applying federal
constitutional standards and Fourth Amendment precedent in resolving Mr. Esparza’s
claim. (See State Court R., 3/16/05 Hrg. Trans. at 573 (citing People v. Bischofberger,
724 P.2d 660, 662-65 (Colo. 1986) (relying on federal Fourth Amendment standards
relating to a search incident to a lawful custodial arrest)). (See also Doc. # 8-7 at 8-9)
(citing People v. Blehm, 983 P.2d 779, 795-96 (Colo. 1999) (relying on federal Fourth
Amendment principles concerning the “good faith” exception to the exclusionary rule)
and (citing Herring v. United States, 555 U.S. 135 (2009) (extending the good faith
exception to the exclusionary rule to a situation where a law enforcement agency was
responsible for an erroneous outstanding warrant remaining in the database)).
Accordingly, the Court finds that the state court proceedings sufficed to provide
Mr. Esparza with an opportunity for full and fair litigation of his claim. See Smallwood v.
Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (holding that petitioner was not entitled to
habeas review of Fourth Amendment claim where petitioner’s trial counsel informed the
trial court of the factual basis for a Fourth Amendment claim, appellate counsel
presented the issue to the state appellate court on direct appeal, and the state courts’
“thoughtfully considered the facts underlying petitioner’s Fourth Amendment claim” but
rejected it on the merits by applying appropriate Supreme Court precedent). Mr.
Esparza’s mere disagreement with the result of his suppression hearing does not
demonstrate that the state courts failed to recognize, or wilfully ignored, controlling legal
standards. See Gamble, 583 F.2d at 1165. Thus, the Court finds that Mr. Esparza is
15

not entitled to federal habeas relief for his Fourth Amendment claim. Accordingly, Claim
One will be dismissed.
B. Claim Two
Mr. Esparza alleges in Claim Two that the state trial court violated his Fourth
Amendment rights by denying his motions to suppress evidence seized from invalid
searches of two residences. (Doc. # 1 at 8-14). Mr. Esparza contends that the trial
court wrongfully found that probable cause existed because the trial court identified an
“incomplete, and therefore incorrect, legal standard” and considered irrelevant evidence
during the suppression hearing. (Id. at 9-12). He also contends that the state courts
misapplied federal law in finding that the search warrants were particular enough to
prevent an exploratory search. (Id. at 12-14; Doc. # 25 at 6-9).
As explained above, Mr. Esparza may not obtain federal habeas relief if the state
court proceedings provided him with an opportunity for full and fair litigation of his
Fourth Amendment claim. See Stone, 428 U.S. at 494. Respondents assert that Mr.
Esparza’s Fourth Amendment claim has been litigated in the sate courts and, therefore
he had a full and fair opportunity to litigate Claim Two. (Doc. # 21 at 13).
As substantiated by the record, Mr. Esparza filed separate motions to suppress
any evidence seized at his residence and at his sister’s residence because the affidavits
failed (1) to provide a sufficient nexus between Tina Esparza’s murder, the places to be
searched, and the things to be seized; and (2) to satisfy the particularity requirement of
the Fourth Amendment. (See Doc. # 8-1 at 16-17; Doc. # 1 at 9, 12-14). After full
briefing and an evidentiary hearing on the motions, the trial court denied both motions to
suppress, finding that there was probable cause for the searches because the
16

“supporting affidavits do establish a fair probability that contraband or evidence of the
subject crime or crimes would be found there.” (State Court R., 4/27/05 Hrg. Trans. at
890- 935). The trial court further found even assuming that the affidavits were
insufficient, that the police officers were operating under a good faith exception to
reasonably believe that they were utilizing valid search warrants to seize the contents of
the safe. (Id. at 936-38).
The Colorado Court of Appeals concluded “that the detective’s affidavit provided
a substantial basis to establish probable cause that the searches would yield material
evidence for use in a criminal prosecution.” (Doc. # 8-7 at 13). The Court of Appeals
further found that the affidavit
describes the appearance of a motive for defendant to kill his
wife, his previous act of taking her truck from the ECC
parking lot, the precautions she took there out of concern for
her safety, his violation of the restraining order, and his
apparent plans to disappear coincident with the murder.
These are not merely vague allegations; rather they
establish a fair probability that defendant engaged in a
specific crime at a specific time and a reasonable basis for
believing that the evidence of the crime would be located at
defendant’s home and in his safe. See People for
Kazmierski, 25 P.3d 1207, 1211-12 (Colo. 2001) (“A court
analyzes the sufficiency of a search warrant in terms of time,
crime, objects, and place.”).
(Id.).
The Court of Appeals also rejected Mr. Esparza’s argument that the warrant
failed to describe the items to be seized with sufficient particularity. The state appellate
court specifically found that the “addendum to the warrant listed twenty-two items that
could be relevant in investigating the crime, and there is no evidence that the police
intended to, or did in fact, conduct a ‘general, exploratory rummaging’ in defendant’s
17

belongings.” (Doc. # 8-7 at 14). Lastly, the Court of Appeals rejected Mr. Esparza’s
contention that the police officers did not have the authority to open the safe seized
from his sister’s home. (Id. at 14-15).
The Court first finds that the state court proceedings sufficed to provide Mr.
Esparza with an opportunity for full and fair litigation of this Fourth Amendment claim.
Gamble, 583 F.2d at 1165. Further, Mr. Esparza has pointed to no authority mandating
reversal but ignored by the state courts, and this Court has found none. See id. Finally,
the Colorado state courts relied on state and federal case law that was solidly based in
Fourth Amendment precedent set forth by the United States Supreme Court. (See
State Court R., 4/27/05 Hrg. Trans. at 933-938). (See also Doc. # 8-7 at 11-15 (citing
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (setting forth Fourth Amendment
requirements for search and seizure); People v. Roccaforte, 919 P.2d 799, 803 (Colo.
1996) (explaining the particularity requirement of the Fourth Amendment); People in
Interest of D.F.L., 931 P.2d 448, 452 (Colo. 1997) (noting that “federal courts have
consistently applied the general proposition that a container found within a dwelling or
residence that is subject to a validly issued warrant may be searched by law
enforcement officers if it ‘is large enough to contain the contraband or evidence that [the
officers] are looking for.’”)). Under this precedent, the Colorado Court of Appeals
proceeded to determine that, based on the entire record before it, there was no
constitutional concerns present with regard to the searches of the residences.
The Court finds that Mr. Esparza has failed to present any well-pled facts from
which it can be inferred that the state courts failed to recognize or wilfully refused to
apply the correct and controlling constitutional standards in this regard, and no such
18

evidence is apparent from the record. See Gamble, 583 F.2d at 1165. Mr. Esparza
merely disagrees with the result, and would like the Court to reconsider these issues de
novo. However, that is not the Court’s function nor an appropriate review to be
undertaken in a federal habeas proceeding. Accordingly, Mr. Esparza is not entitled to
federal habeas review of his Fourth Amendment claim, and Claim Two will be
dismissed.
C. Claim Three
Mr. Esparza contends that his Fifth and Fourteenth Amendment due process
rights were violated because he was tried before a biased judge who should have
recused himself. (Doc. # 1 at 14-16). Mr. Esparza alleges the “trial court was clearly
wrong in finding that [the motion to disqualify] contained ‘only opinions, conjecture, and
conclusory allegations’” and that the “Court of Appeals erroneously found that ‘prejudice
against the lawyer for the defendant does not require recusal.’” (Id. at 15-16).
To demonstrate a violation of due process because of judicial bias, a claimant
must show either actual bias or an appearance of bias. Bixler v. Foster, 596 F.3d 751,
762 (10th Cir. 2010). “The standard is purely objective, and [t]he inquiry is limited to
outward manifestations and reasonable inferences drawn therefrom.” United States v.
Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008) (alteration in original) (quoting
United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (internal quotation marks
omitted). In addition, “[a]lthough a judge's remarks during the course of a trial may be
‘critical,’ ‘disapproving,’ or ‘hostile’ to a party, usually they will not support a partiality
charge.” Nickl, 427 F.3d at 1298 (quoting Liteky v. United States, 510 U.S. 540, 555
(1994). “[J]udicial rulings alone almost never constitute a valid basis for a bias or
19

partiality motion.” Liteky, 510 U.S. at 555. “Thus, ‘adverse rulings cannot in themselves
form the appropriate grounds for disqualification.’” Nickl, 427 F.3d at 1298 (quoting
Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Finally, to show actual bias,
the applicant must present “compelling” evidence. See Fero v. Kerby, 39 F.3d 1462,
1478 (10th Cir. 1994) (in upholding dismissal of a habeas claim involving judicial bias,
the court stated that “[d]isqualification of a judge for actual bias or prejudice is a serious
matter and should only be required when the evidence is compelling”) (citation omitted).
On direct appeal, Mr. Esparza identified three instances of judicial bias: (1) the
trial judge held an important hearing without Mr. Esparza or his counsel in which the
merits of defense objections to forced handwriting samples were discussed with the
prosecution; (2) the trial judge did not appropriately discipline the prosecution for ex
parte communications; and (3) the trial judge repeatedly ruled in favor of the
prosecution and rescinded decisions favorable to the defense. (See Doc. # 8-2 at 2223; Doc. # 8-7 at 17-20).
After setting forth the legal standard for disqualification, the Colorado Court of
Appeals rejected Mr. Esparza’s claim and found that even assuming, without deciding,
that Mr. Esparza’s attorneys’ two affidavits attached to the motion to disqualify were
sufficient to “verify” the motion under state statutes, the motion and affidavits failed to
state facts showing the existence of grounds for disqualification. (See Doc. # 8-7 at 16).
The state appellate court further rejected Mr. Esparza’s allegation that the trial judge
held an “ex parte” motions hearing regarding Mr. Esparza’s handwriting sample
because the record demonstrated that Mr. Esparza had notice of the hearing but failed
to attend. (Id. at 17). The state appellate court further found that the trial judge’s ruling
20

on the handwriting exemplar did not demonstrate hostility, ill will, or an absence of
impartiality. (Id.). The Colorado Court of Appeals also rejected Mr. Esparza’s allegation
that the trial judge was biased because he did not appropriately discipline the
prosecution for ex parte communication with defense witnesses. The state appellate
court found that (i) the judge did reprimand the prosecutor for contacting the witnesses
to tell them that they were not needed at the hearing; and (ii) the prosecutor’s contact
did not prejudice Mr. Esparza. (Id. at 18-19). Finally, the Colorado Court of Appeals
rejected Mr. Esparza’s allegations that the trial judge displayed a “skeptical attitude”
toward defense counsel while behaving favorable to the prosecution. The state
appellate court first found that this argument was entirely conclusory. (Id. at 19).
However, even assuming the allegations were true, the state appellate court further
determined that recusal was not required because Mr. Esparza failed to make a
showing of hostility, ill will, or absence of impartiality. (Id. at 20).
Mr. Esparza contends that he was denied his right to an impartial tribunal based
on the trial judge’s rulings regarding the prosecution’s ex parte communications and the
alleged introduction of false or erroneous testimony. (Doc. # 1 at. 15-16; Doc. # 15 at
11-12). These allegations are insufficient to show actual bias or an appearance of bias.
See Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion”). None of the trial judge’s rulings suggested a
prejudgment of guilt or exhibited antagonism toward Mr. Esparza himself. See Liteky,
510 U.S. at 555-556 (“[A] judge’s ordinary efforts at court-room administration – even a
stern and short-tempered judge’s ordinary efforts at courtroom administration – remain
immune [from charges of bias] . . . [and the defendant failed] to point to any conduct that
21

arguably reveals an opinion of favoritism or antagonism as to make fair judgment
impossible.”). Further, the Colorado Court of Appeals’ decision did not run afoul of any
controlling Supreme Court precedent. Thus, Mr. Esparza has failed to demonstrate that
he was deprived of due process and a fair trial by judicial bias. Therefore, he is not
entitled to habeas relief on this claim, and Claim Three will be dismissed.
D. Claim Four
Mr. Esparza alleges that the state trial court violated his due process rights under
the Sixth and Fourteenth Amendments by making prejudicial evidentiary rulings. (Doc.
# 1 at 16-19). Specifically, he contends that the trial court erred in the manner in which
it admitted evidence regarding the Jefferson County sexual assault charges and
allegations against Mr. Esparza. (Id.).
Generally, state law questions about the admissibility of evidence are not
reviewed in federal habeas proceedings. Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir.
2001). A federal court “may not interfere with state evidentiary rulings unless the rulings
in question rendered ‘the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.’” Id. (quoting Tucker v. Markowski, 883 F.2d 877, 881 (10th Cir.
1989); see also Payne v. Tennessee, 501 U.S. 808, 825 (1991) (evidence violates due
process only when it is so unduly prejudicial that it renders a trial fundamentally unfair).
The United States 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
22

(10th Cir. 2002) (internal quotation marks and citation 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). Moreover, a state court's admission
of evidence of prior crimes, wrongs or acts will only be disturbed if the “probative value
of such evidence is so greatly outweighed by the prejudice flowing from its admission
that the admission denies [applicant] 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).
Before Mr. Esparza’s trial, the prosecution filed a notice of intent to introduce
evidence of Mr. Esparza’s alleged sexual assault of Tina Esparza’s daughter. (Doc. #
8-7 at 20). The prosecution maintained that the Jefferson County sexual assault
charges and allegations were probative of Mr. Esparza’s motive and intent for the
murder of Tina Esparza, and should be admitted as res gestae evidence or as prior bad
acts under Colo. R. Evid. 404(b). (See State Court R., 4/15/05 Hrg. Trans. at 739-750).
After hearing the arguments of counsel, the trial court found that the evidence was
“integral and highly probative for the fact finder to understand the situation involving [Mr.
Esparza and his estranged wife]” and “relevant on the issues of the defendant’s intent,
motive, preparation, plan, knowledge, and also, issues relating to identity.” (Id. at. 78083). Prior to voir dire, the trial court reiterated its ruling that the Jefferson County case
charges and basic allegations were admissible. (See State Court. R., 7/11/05 Hrg.
Trans. at 1139-42). During opening statements and throughout trial, Mr. Esparza’s
counsel objected to the prosecution’s presentation of evidence regarding the Jefferson
County case. (See e.g., id. at 1295; 7/13/05 Hrg. Trans. at 1560-71, 1688-90; 7/14/05
23

Hrg. Trans. at 1795-1803, 2029).
On direct appeal, Mr. Esparza argued that the manner in which the evidence was
admitted at trial constituted prejudice entitling him to a mistrial. (Doc. # 8-2 at 31-43;
Doc. # 8-7 at 23-29). Specifically, he argued that the trial court should not have
permitted testimony about the content of the videotapes found in the family home or
other testimony concerning specific facts of the Jefferson County case; that the trial
court ignored prosecutorial misconduct; that the trial court wrongfully denied him a
hearing on the issue; and that the admission of the evidence entitled him to a mistrial.
(Id.).
The Colorado Court of Appeals disagreed that the introduction of the allegations
of the sexual assault case denied Mr. Esparza due process. First, the Court of Appeals
found that the evidence was relevant to motive and intent because “Tina Esparza had
caused sexual assault charges to be filed against him in Jefferson County arising from
the secret videotaping that occurred in the family home; as a result of the charges, a
protective order was obtained preventing defendant from contacting his wife or her
daughters; the violation of the restraining order had been reported to the authorities and
was coming up for a hearing; the sexual assault charges were being prosecuted; and
Tina Esparza was a potential material witness.” (Doc. # 8-7 at 22). The Court of
Appeals further found that the sexual assault charges and allegations were “presented
as part of a sequence of events leading up to the murder.” (Id. at 22-23). Finally, the
Court of Appeals found that the underlying sexual assault case was not unfairly
prejudicial. (Id.).
The Colorado Court of Appeals further determined that Mr. Esparza was not
24

entitled to a mistrial because the manner of presentation of the allegations of the sexual
assault charge was not unfairly prejudicial. Specifically, the state appellate court
explained in detail as follows:
Defendant argues that the court abused its discretion by
failing to enforce its pretrial ruling that only the charge and the
“basic allegations” in the Jefferson County sexual assault case
were admissible. At trial, the parties debated the scope of the
phrase “basic allegations,” prompting the court to clarify its ruling.
On appeal, defendant argues the trial court’s rulings were intended
to exclude any testimony about the content of the videotapes, as
opposed to the charges arising out of the making of the videotapes
and that the trial court failed to enforce its own ruling.
During opening argument, the prosecution related how
defendant’s wife discovered the video recording equipment in the
family home and reported it to the police, and described the
observations made by officers from the Jefferson County Sheriff’s
Department when they conducted an investigation. Defendant’s
objection to the statement was overruled and the prosecution
continued:
And that deputy looks into the attic and he sees cables,
cables that run from the fan in the girls’ bathroom across the
attic and down to a VCR in the master bedroom. VCR tapes
are found, and on some of those tapes there are images of
[one daughter] at the age of about 17. She is undressed,
she is naked. Pictures of her in her bathroom. Pictures of
her naked then in her bedroom.
Two days later, when the prosecution called a number of
witnesses to testify about the videotaping, the defense objected
again to the presentation of evidence relating to the contents of the
videotapes. The court then explicitly ruled that the fact of the secret
videotaping was admissible, but that references to what the
stepdaughter was doing in the tapes and whether or not she was
clothed were unfairly prejudicial and potentially confusing to the
jury. After this explicit ruling, defendant points to no references by
the prosecution that violated the order. Moreover, contrary to the
suggestion in defendant’s opening brief, we find no indication in the
record that the videotapes were entered into evidence or even
offered to be entered into evidence.

25

Nor do we find evidence that the prosecution violated the
court’s orders made at the preliminary hearing as made explicit at
trial. The prosecution presented testimony from Officer Lee Hoag,
who had viewed three of the videotapes, and the sister of the
victim, who had viewed brief segments of two of the videotapes.
Officer Hoag testified that one of the videotapes contained spliced
segments depicting defendant’s stepdaughter “coming in and doing
similar activities that she wouldn’t have all done on the same day”
and one segment of defendant manipulating the video camera with
a toilet brush. The victim’s sister testified only that the two
videotapes she viewed “very briefly” show defendant’s
stepdaughter in the bathroom and bedroom.
The prosecution also presented the charges from the
Jefferson County case, which included an officer’s reciting the
allegation that defendant “unlawfully and knowingly subjected,
observed, or took a photograph of the intimate parts of [his
stepdaughter] without the victim’s consent in a situation where the
victim had a reasonable expectation of privacy for the Defendant’s
own sexual gratification in violation of 18-3-404-1.7 from the
Colorado Revised Statues.” The charge was specifically deemed
admissible in the preliminary hearing.
We conclude that the references to the content of the
videotapes in the prosecution’s opening statement and the
testimony presented did not unfairly prejudice defendant or
contradict the substance of the trial court’s rulings. Moreover, the
court limited the prejudicial effect by excluding graphic references
to specific content of the videotapes.
(Doc. # 8-7 at 24-27).
The Court finds that Mr. Esparza has not demonstrated that the trial court's
decision to allow evidence of the alleged sexual assault charges and allegations was so
overwhelmingly prejudicial that it resulted in a fundamentally unfair trial. First, the
evidence was relevant to explaining the facts leading up to Tina Esparza’s murder and
establishing Mr. Esparza’s motive and intent. See Knighton v. Mullin, 293 F.3d 1165,
1171 (10th Cir. 2002) (admitting evidence of petitioner’s other crimes and bad acts was
relevant to explain the “chain of events” leading up to the murder and the petitioner’s
26

intent and motive). Moreover, the trial court provided a limiting instruction that the
testimony only “may be used as evidence for the purpose of showing intent, motive,
preparation, plan, knowledge, and identity, and you should consider it as evidence for
no other purpose.” (See e.g., State Trial R., 7/14/05 Hrg. Trans. at 1816). Thus, it is
clear from the state court record that the trial court instructed the jury to consider the
evidence only for the specified, limited purpose of showing motive or intent and for no
other purpose.
Further, the state trial court permitted only general references and excluded
specific, graphic descriptions, which refutes Mr. Esparza’s contention that his trial was
rendered fundamentally unfair by the admission of evidence of the sexual assault case.
See e.g., Willingham v. Mullin, 296 F.3d 917, 928-29 (10th Cir. 2002) (according
deference to state court’s admission of objectionable photograph as relevant, despite
habeas petitioner’s argument that photographs were unduly prejudicial and concluding
that petitioner failed to demonstrate a due process violation). Accordingly, the Court
finds that the state appellate court’s decision regarding the admissibility of this evidence
was not contrary to, or involved an unreasonable application of, clearly established
Federal law, nor is it an unreasonable determination of the facts. Therefore, Mr.
Esparza is not entitled to federal habeas relief. Claim Four lacks merit and will be
dismissed.
E. Claim Five
In Claim Five, Mr. Esparza contends that his due process rights were violated
when the prosecution misled defense counsel and the trial court that it would not
introduce specific facts of the Jefferson County sexual assault case. (Doc. # 1 at 19).
27

He also asserts that the trial court erred in failing to hold a hearing concerning Mr.
Esparza’s motion to suppress evidence seized in the Jefferson County case. (Doc. # 1
at 19-20).
In general, habeas relief is available for prosecutorial misconduct only if the
misconduct “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). But if the
“challenged statements effectively deprived the defendant of a specific constitutional
right,” relief is available unless the violation can be “deemed harmless beyond a
reasonable doubt.” Gipson v. Jordan, 376 F.3d 1193, 1197 (10th Cir. 2004).
The Colorado Court of Appeals held that there was no prosecutorial misconduct
that warranted a mistrial. (Doc. # 8-7 at 27-28). The state appellate court also
determined that the state trial court did not err in failing to hold a hearing on Mr.
Esparza’s pretrial motion to suppress evidence because:
the search of the family home occurred after defendant’s
wife reported his conduct to the police and with her consent. See
People v. Sanders, 904 P.2d 1311, 1313 (Colo. 1995) (consent
freely and voluntarily given eliminates the need for a warrant).
Consent to a search may be given by a third party with “common
authority” over the premises to be searched without violating a
defendant’s Fourth Amendment rights. Id. (quoting United States v.
Matlock, 415 U.S. 164, 168-72 (1974). Thus, the officers did not
need defendant’s consent. Because the search was facially proper,
the court did not err in denying a hearing on the motion to
suppress.
(Doc. # 8-7 at 28-29).
To the extent Claim Five could be read as a Fourth Amendment claim, the claim
is precluded by Stone v. Powell, 428 U.S. 465 (1976). The state court record
demonstrates that Mr. Esparza had a full and fair opportunity to litigate this claim. Mr.
28

Esparza’s attorney filed a motion to suppress any evidence relating to the search in the
Jefferson County case. (Doc. # 1 at 19; State Court R., 4/15/05 Hrg. Trans. at 782).
The trial court did not rule on the motion prior to trial, but Mr. Esparza’s attorney
renewed the motion to suppress during trial. (State Court R., 7/13/05 Hrg. Trans. at
1560, 1564-71, 1688-90; 7/14/05 Hrg. Trans. at 1862-74; 7/15/05 Hrg. Trans. at 203941.) The trial court listened to counsel’s arguments, disagreed with defense counsel’s
characterization, and denied suppression and a mistrial. (Id., 7/13/05 Hrg. Trans. at
1571, 1688-90; 7/14/05 Hrg. Trans. at 1862-74; 7/15/05 Hrg. Trans. at 2039-56).
Mr. Esparza also raised the issue on direct appeal and the Colorado Court of
Appeals rejected the claim. The state appellate court found that Tina Esparza’s consent
to search was given voluntarily and that officers obtained a valid consent to search,
citing to United States v. Matlock, 415 U.S. 164 (1974). (See Doc. # 8-7 at 28-29).
Based on the record, the Court concludes that Mr. Esparza had a full and fair
opportunity to litigate his Fourth Amendment claim in the state courts. As a result, the
Court is precluded from considering the claim based on Stone.
To the extent, Mr. Esparza’s claim is not precluded by Stone, the Court finds that
he is not entitled to habeas relief. In the Application, Mr. Esparza argues that the state
courts’ reliance on Matlock was improper because it is distinguishable from his case.
Mr. Esparza also claims that the warrantless search was invalid under Georgia v.
Randolph, 547 U.S. 103 (2006).
The Court finds that Mr. Esparza is not entitled to relief on his due process claim
because he fails to identify any clearly established federal law providing that the search
was not facially proper. Respondents are correct that Georgia v. Randolph does not
29

apply to Mr. Esparza’s case. In Georgia v. Randolph, the United States Supreme Court
considered “whether one occupant may give law enforcement effective consent to
search shared premises, as against a cotenant who is present and states a refusal to
permit the search.” 547 U.S. at 108 (emphasis added). The Supreme Court specifically
declined to “undercut” the holding in Matlock by “drawing a fine line,” and stated the
very narrow terms of its holding as follows:
If a potential defendant with self-interest in objecting is in fact at the
door and objects, the cotenant’s permission does not suffice for a
reasonable search, whereas the potential objector nearby but not
invited to take part in the threshold colloquy, loses out.
Id. at 122 (emphasis added).
In the instant case, Mr. Esparza does not allege that he was invited to take part
in the threshold request for consent to search. Nor does Mr. Esparza allege that he
objected to the search. He merely alleges that he “was also present” and that “no
evidence was introduced to show that he gave voluntary consent.” (Doc. # 1 at 20). A
failure to give consent does not equate to an express refusal to consent and the state
court record does not reflect that Mr. Esparza was “at the door and object[ed.]” Instead,
the state court record demonstrates that the investigating officer responded to Tina
Esparza’s request to investigate a “family matter;” that he contacted her and her
daughter outside of her residence; that she invited him into the house; that she took the
officer upstairs to search the bedrooms, bathroom, and attic; that the officer passed Mr.
Esparza on the stairs on his way to the second floor and had a conversation with him;
and that after the search was completed, Mr. Esparza gave an interview with one of the
officers. (See State Court R., 7/13/05 Hrg. Trans. at 1686-1704; see also Doc. # 8-13 at

30

17-20). Thus, Mr. Esparza’s reliance on Georgia v. Randolph is misplaced because the
facts alleged in his Application are sufficiently different from the limited holding in that
case.
Mr. Esparza also has failed to demonstrate that the Colorado Court of Appeals
relied on incorrect federal constitutional standards by following United States v. Matlock
to determine whether the search was proper based on voluntary consent by a cooccupant who has authority over the property. Based on the state courts’ factual
findings and United States Supreme Court precedent, the Court cannot find that the
Colorado Court of Appeals applied a rule “contrary to” any current, materially
distinguishable Supreme Court case, or that it “unreasonably applied” the governing
Supreme Court law to the facts of this case. See Mitchell v. Esparza, 540 U.S. 12, 17
(2003) (“A federal court may not overrule a state court for simply holding a view different
from its own, when the precedent from this Court is, at best, ambiguous”). Accordingly,
Mr. Esparza is not entitled to federal habeas relief as to Claim Five, and Claim Five will
be dismissed.
F. Claim Six
Mr. Esparza contends in Claim Six that prosecutorial misconduct violated his
constitutional right to a fair trial. (Doc. # 1 at 21-22). Mr. Esparza asserts that the
prosecution intentionally misled the defense by stating at a preliminary hearing that it
intended to mention only the “charge and the basic allegations” of the Jefferson County
sexual assault case, but then at trial presented evidence to support the allegations.
(Id.). Mr. Esparza further alleges that despite the trial court’s limiting rule regarding the
Jefferson County case, “the prosecution introduced all of the specific, highly prejudicial
31

facts of the untried charges throughout Mr. Esparza’s trial.” (Id.).
The clearly established federal law for purposes of a claim of prosecutorial
misconduct is the Supreme Court’s decision in Darden v. Wainwright, 477 U.S. 168
(1986). See Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (per curiam). In Darden,
the Supreme Court explained that prosecutorial misconduct violates the Constitution
only when the misconduct “‘so infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” 477 U.S. at 181 (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (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.” Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998). “[T]he Darden
standard is a very general one, leaving courts ‘more leeway . . . in reaching outcomes in
case-by-case determinations.’” Parker, 132 S. Ct. at 2155 (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Finally, prosecutorial misconduct claims are
mixed questions of law and fact. See Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir.
2002).
The Colorado Court of Appeals rejected Mr. Esparza’s claim of prosecutorial
misconduct as follows:
The notice of intent to introduce res gestae or CRE 404(b)
evidence states that the prosecution intended to present “[a]ll
information relating to Jefferson County Court case 03M6227.” The
notice is appended with a “general summary” of the facts in that
case comprised of a nine-page report by Officer Hoag, which
includes a description of the video equipment and wiring found in
the family home as well as the content of two videotapes. As noted,
at the pretrial hearing the court ruled that evidence of the Jefferson
County case and the “basic allegations” was admissible as res
32

gestae or under CRE 404(b). As we have noted above, the trial
court excluded references to specific matter depicted in the
videotapes, and defendant points to no references which violated
the court’s express rulings. On this record, we see no prosecutorial
misconduct that warranted a mistrial. See People v. Prieto, 124
P.3d 842, 851 (Colo. App. 2005) (“[A]lleged improprieties must be
reviewed in the context of the arguments as a whole and in light of
the evidence presented.”)
(Doc. # 8-7 at 27-28).
The Court finds that Mr. Esparza fails to present any evidence, let alone clear
and convincing evidence, to overcome the presumption of correctness that attaches to
the state court’s factual determinations that the prosecution did not intentionally mislead
the trial court and Mr. Esparza’s attorneys and that the prosecution did not violate the
court’s express rulings regarding the Jefferson County case. Mr. Esparza argues that
the prosecution played a “semantic game” when it stated it would present the “basic
allegations” of the sexual assault case and that “allegations” only meant the charges
and not the evidence supporting the charges. (Doc. # 1 at 22). However, the state
court record provides no indication that the prosecution intentionally deceived Mr.
Esparza’s counsel and the trial court. Instead, the prosecution stated in its notice of
intent to introduce “all information related to” the Jefferson County case, and the notice
was appended with a “general summary” of the facts in that case from the officer’s
report. (See Doc. # 8-7 at 27; State Court R., 2/11/05 People’s Notice of Intent to
Introduce Res Gestae Evidence and/or Evidence of Other Acts of the Defendant
Pursuant to CRE 404, at 190-250). In addition, the prosecution represented that it
would elicit testimony regarding the “basic allegations,” which the trial court ruled as
admissible. (See State Court. R., 7/11/05 Hrg. Trans. at 1139-42). Therefore, the

33

Court cannot find that the Colorado Court of Appeals’ decision was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceedings.
Mr. Esparza also fails to demonstrate that the decision of the Colorado Court of
Appeals is either contrary to or an unreasonable application of clearly established
federal law. He does not cite any contradictory governing law set forth in Supreme
Court cases or any materially indistinguishable Supreme Court decision that would
compel a different result. See House, 527 F.3d at 1018. He also fails to demonstrate
that the state court’s ruling “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. As noted above, “the Darden standard is a
very general one, leaving courts ‘more leeway ... in reaching outcomes in case-by-case
determinations.’” Parker, 123 S. Ct. at 2155 (quoting Yarborough, 541 U.S. at 664). In
light of this very general standard, the absence of any evidence or indication that the
prosecutor intentionally misled the trial court and Mr. Esparza’s attorneys and violated
the trial court’s rulings, the Court cannot conclude that Mr. Esparza’s trial was
fundamentally unfair. Therefore, Mr. Esparza is not entitled to relief on this claim and
Claim Six will be dismissed.
G. Claim Seven
In remaining Claim Seven, Mr. Esparza contends that he received ineffective
assistance of counsel because (a) counsel did not conduct a sufficient investigation into
his casino alibi defense; (b) counsel failed to secure a Gun Shot Residue expert to
challenge the State’s interpretation of the CBI test results; and (c) counsel infringed on
34

his right to plead not guilty and to testify on his own behalf by admitting his guilt in
opening statements. (Doc. # 1 at 22-27).
It was clearly established when Mr. Esparza was convicted that a defendant has
a Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed
questions of law and fact. See id. at 698. To establish that counsel was ineffective, Mr.
Esparza must demonstrate both that counsel’s performance fell below an objective
standard of reasonableness and that counsel’s deficient performance resulted in
prejudice to his defense. See id. at 687. “Judicial scrutiny of counsel’s performance
must be highly deferential.” Id. at 689. There is “a strong presumption” that counsel’s
performance falls within the range of “reasonable professional assistance.” Id. It is Mr.
Esparza’s burden to overcome this presumption by showing that the alleged errors were
not sound strategy under the circumstances. See id. “For counsel’s performance to be
constitutionally ineffective, it must have been completely unreasonable, not merely
wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Furthermore, “because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009).
Under the prejudice prong, Mr. Esparza must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 131 S. Ct. at
792 (stating that “[t]he likelihood of a different result must be substantial, not just
35

conceivable.”). In determining whether Mr. Esparza has established prejudice, the
Court must look at the totality of the evidence and not just the evidence that is helpful to
Mr. Esparza. See Boyd, 179 F.3d at 914. If Mr. Esparza fails to satisfy his burden with
regard to either prong of the Strickland test, his ineffective assistance of counsel claim
must be dismissed. See Strickland at 697.
Finally, conclusory allegations that counsel was ineffective are not sufficient to
warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir.
2001).
(1) Failure to Investigate Casino Alibi and to Challenge CBI Test Results
Mr. Esparza contends in Claim 7(a) and (b) that he was denied the effective
assistance of counsel because counsel failed to investigate more thoroughly his casino
alibi defense and to challenge the CBI test results by hiring a Gun Shot Residue expert.
The Colorado Court of Appeals applied the two-part Strickland test in rejecting
Mr. Esparza’s ineffective assistance of counsel claims as follows
B. Investigation
Defendant also contends trial counsel was ineffective
because counsel failed to investigate his alibi properly by (1) failing
to obtain a casino surveillance tape, which would support his alibi,
before it was destroyed and (2) failing to call an expert on gun
powder transference as a witness. We disagree.
According to the record, nine months before trial, the
prosecution in this case provided all the casino surveillance tapes in
its possession to trial counsel.
A week before trial, the prosecution interviewed a casino
security guard and learned for the first time that the security guard
had previously generated an internal report regarding one of the
tapes. The prosecution obtained a copy of the report and faxed it
to trial counsel.
36

The report stated that, at a certain casino, a person loosely
fitting defendant’s physical description entered the casino; however,
this other person’s clothing did not match the description of
defendant, his hair was styled differently, and he was not wearing a
hat.
Trial counsel made the following representation on the
record:
I can tell the Court that we contacted the casinos very early
on in our investigation and asked them what they had as far
as video surveillance. And [the security guard] at that time
did not disclose to us the existence of this report.
Trial counsel made a motion to the trial court to find a
discovery violation, which the court denied. Trial counsel then
requested that the prosecution reformat a few of the tapes so they
would be “formatted in a manner that [they could] watch them
[because the tapes] were not so clear that you could even say
somebody is most definitely [defendant] or not.” The court denied
this request. Trial counsel requested a continuance, which the trial
court denied as well.
At trial, the prosecution admitted into evidence photographs
of the person in the casino that the security guard viewed on the
surveillance tape mentioned in his report.
We conclude the record plainly refutes defendant’s claim.
The record shows the prosecution turned over to trial counsel all
the casino surveillance tapes for the relevant period and that none
of the tapes were “destroyed.”
Regarding the gun powder transference expert, to prevail on
such a claim, defendant must identify an expert he would call at an
evidentiary hearing who would present favorable testimony that
would have been both available and likely to be successful at trial.
People v. Naranjo, 840 P.2d 319, 325 (Colo. 1992); see also James
v. Borg, 24 P.3d 20, 27 (9th Cir. 1994) (failure to present different
defense does not show ineffectiveness where defendant fails to
identify evidence counsel should have presented that would support
a different defense). He has not done so. Thus, defendant has
failed to carry his burden to show that such expert testimony
existed, see Naranjo, 840 P.2d at 325, and a mere allegation that
counsel should have investigated to find such an expert is
insufficient to warrant a hearing, see People v. Gandiaga, 70 P.3d
37

523, 526 (Colo. App. 2002) (no prejudice where defendant was
granted a hearing and neither presented evidence of witness’s
willingness to testify, nor made an offer of proof with respect to the
substance, credibility, or admissibility of the anticipated testimony).
We therefore conclude defendant’s claim, as pled, does not
establish either prong of the Strickland standard. See, e.g., Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (if defendant claims counsel
should have pursued a defense instead of a guilty plea, he must
show defense would likely be successful at trial); see also People v.
Mills, 163 P.3d 1129, 1132 (Colo. 2007) (where there was no
evidence not-guilty-by-reason-of-insanity plea was appropriate,
failure to seek such a plea does not constitute ineffective
assistance of counsel).
Given that both the security surveillance tape and gun
powder transference expert claims necessarily fail, we conclude the
district court did not err in summarily denying defendant’s Crim. P.
35(c) motion alleging ineffective assistance of trial counsel in this
regard either.
(Doc. # 8-13 at 10-13).
Mr. Esparza fails to demonstrate that the state court’s rejection of Claim 7(a) and
(b) was contrary to or involved an unreasonable application of clearly established law.
He fails to cite to any contradicting governing law set forth by the Supreme Court or any
materially indistinguishable Supreme Court decision that would compel a different result
with respect to his claims.
Mr. Esparza also fails to demonstrate that the state court’s rejection of Claim 7(a)
and (b) was an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings. Because the state court did not hold an
evidentiary hearing as to Mr. Esparza’s ineffective assistance of counsel claims, the
Court evaluates “the factual record” made by his trial counsel. Miller v. Champion, 161
F.3d 1249, 1254 (10th Cir. 1998)

38

In the Application and the Reply, Mr. Esparza contends that it was clearly
erroneous for the trial court to assume that Mr. Esparza’s counsel timely requested
casino videotapes that were properly formatted and that counsel’s failure to challenge
the CBI test results was unreasonable. (Doc. # 1 at 10-13; Doc. # 25 at 25-29). These
arguments are belied by the state court’s factual determination that the prosecution
turned over to trial counsel all the casino surveillance tapes for the relevant time period,
a factual determination the Court presumes to be correct under § 2254(e)(1). Further, a
review of the state court record establishes that trial counsel had contacted the casinos
very early on in the investigation, made a motion for a discovery violation for late
disclosure of a casino report, and requested reformatting of the tapes. (See State
Court. R., 7/7/05 Hrg. Trans. at 999-1015; 7/8/05 Hrg. Trans. at 1038-45, 1053-67). Mr.
Esparza has made no showing that counsel’s alleged failure to properly investigate the
casino alibi defense was not based upon a valid strategic choice. See Bullock v.
Carver, 297 F.3d 1036, 1047 (10th Cir. 2002) (finding that defendant bears “the burden
of showing that counsel’s action or inaction was not based on a valid strategic choice.”).
Accordingly, the “presumption that the attorney's decision was objectively reasonable,”
attaches to this decision, and it becomes “virtually unchallengeable.” United States v.
Nguyen, 413 F.3d 1170, 1181 (10th Cir. 2005).
Moreover, Mr. Esparza also fails to demonstrate the state court’s determination
that counsel made a strategic decision not to challenge the CBI test results by hiring a
Gun Shot Residue expert is an unreasonable application of the deficient performance
prong of the Strickland analysis. See Strickland, 466 U.S. at 690 (counsel’s “strategic
choices made after thorough investigation of law and facts relevant to plausible options
39

are virtually unchallengeable.”). Moreover, Mr. Esparza does not adequately address
the fact that the state appellate court also rejected the claim due to his failure to
demonstrate prejudice under Strickland, which was based on his failure to present any
evidence that would have resulted from the hiring of a Gun Shot Residue expert.
Mr. Esparza has not demonstrated that the state courts’ rejection of his claim
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. As a result, the Court finds that the decision of the appellate
court did not result in a decision that was contrary to, or involved an unreasonable
application of Strickland. Thus, Mr. Esparza is not entitled to relief on Claim 7(a) and
(b).
(2) Admission of Guilt
Mr. Esparza contends in Claim 7(c) that he was denied the effective assistance
of counsel because counsel admitted his guilt during opening statements. More
specifically, Mr. Esparza contends that counsel’s statement was the functional
equivalent of “pleading him guilty to the lesser-included offense of second degree
murder and undercutting any testimony he might try to give concerning his whereabouts
and innocence.” (Doc. # 1 at 26).
The Colorado Court of Appeals applied the two-part Strickland test and reasoned
as follows in rejecting the claim:
A. Admission of Guilt
Defendant first contends, based on People v. Bergerud, 223
P.3d 686 (Colo. 2010), that trial counsel was ineffective because
counsel improperly admitted defendant’s guilt of the lesser crime of
40

manslaughter during opening and closing statements. He contends
that this was against his wishes and that he had maintained his
innocence and wanted to put forward a defense based on an alibi.
We disagree.
We note that Bergerud was decided several years after
defendant’s trial. Before Bergerud, the decision of what defense to
pursue was within the purview of trial counsel. See Steward v.
People, 179 Colo. 31, 34, 498 P.2d 933, 934 (1972). Indeed, in
Steward, our supreme court described what decisions fell within
counsel’s purview, and what decisions were reserved for the
accused as follows:
Defense counsel stands as captain of this ship in
ascertaining what evidence should be offered and what
strategy should be employed in the defense of the case . . . .
“(a) Certain decisions relating to the conduct of the case are
ultimately for the accused and others are ultimately for
defense counsel. The decisions which are to be made by
the accused after full consultation with counsel are: (i) what
plea to enter; (ii) whether to waive jury trial; (iii) whether to
testify in his own behalf. (b) The decisions on which
witnesses to call, whether and how to conduct crossexamination, what jurors to accept or strike, what trial
motions should be made, and all other strategic and tactical
decisions are the exclusive province of the lawyer . . .”
179 Colo. at 34, 498 P.2d at 934 (quoting ABA Standards of
Criminal Justice: Defense Functions 5.2(a)-(b)); see Arko v. People,
183 P.3d 555, 556 (Colo. 2008) (“[T]he decision whether to request
jury instructions on lesser offenses is a tactical decision that rests
with defense counsel . . . . “); accord Florida v. Nixon, 543 U.S. 175,
187, 189 (2004) (attorney was not “required to gain express
consent before conceding [the defendant’s] guilt because a
defendant has “the ultimate authority” to determine only “whether to
plead guilty, waive a jury, testify in his or her own behalf, or take an
appeal”) (quoting in part Jones v. Barnes, 463 U.S. 745, 751
(1983)).
At the time of defendant’s trial, therefore, it was reasonable
for his counsel to believe that the decision of what defense to
pursue was within counsel’s purview. See Dunlap, 173 P.3d at
1062-63 (“In conducting the reasonableness inquiry, a court must
make ‘every effort . . . to eliminate the distorting effects of hindsight,
to reconstruct the circumstances of counsel’s challenged conduct,
41

and to evaluate the conduct from counsel’s perspective at the
time.’”) (quoting Strickland, 466 U.S. at 689); People v. Trujillo, 169
P.3d 235, 238 (Colo. App. 2007) (“A reviewing court must evaluate
counsel’s performance from his perspective at the time of the
representation, ignoring the distorting effects of hindsight.”) (citing
Davis v. People, 871 P.2d 769, 772 (Colo. 1994)). Because we
measure reasonableness based on the perspective of trial counsel
at the time of the representation, see Dunlap, 173 P.3d at 1062-63,
and we presume trial counsel’s conduct was reasonable, see
Strickland, 466 U.S. at 689-90 (courts are directed to “indulge a
strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance”); People v.
Rodriguez, 914 P.2d 230, 294 (Colo. 1996), we conclude it was
reasonable for trial counsel to believe the decision of what defense
to pursue, including a defense of mitigation rather than alibi, fell
within her purview.

Moreover, defendant does not contend trial counsel should
have foreseen Bergerud and its implications for her decisionmaking in defendant’s case. The fact that three justices dissented
in Bergerud supports the conclusion that it was reasonable for trial
counsel not to have foreseen the result in that case. Bergerud, 223
P.3d at 707.
Further, at the time of trial, we conclude trial counsel’s
decision to pursue a defense of mitigation was objectively
reasonable. At trial, the prosecution presented, as evidence of
motive, testimony regarding a sexual assault case that had been
brought against defendant. The victim had alerted authorities to the
sexual assault involved in this case and had assisted the police in
their investigation of the case. Other evidence established that, in
the days leading up to the murder, defendant asked a relative to
watch his dogs while he went on a “weekend retreat,” rented a van,
stole a gun, and checked into a local motel. Hence, there was
significant evidence of defendant’s guilt that made reasonable trial
counsel’s decision to seek to mitigate the case.
We therefore conclude the district court did not err in
summarily denying defendant’s Crim. P. 35(c) motion in this regard.
(Doc. # 8-13 at 6-10.)
Mr. Esparza fails to demonstrate that the state court’s rejection of the Claim 7(c)

42

was contrary to clearly established law. He alleges that Bergerud, although decided
several years after his trial, was built upon “long-standing federal rights” which were
violated and cites only to Williams v. Taylor, 529 U.S. 362 (2000) to support his
argument. In Williams, the Supreme Court held that the state supreme court rendered a
decision that was contrary to or an unreasonable application of clearly established
federal law and that petitioner’s right to ineffective assistance of counsel as defined in
Strickland was violated where his counsel was incompetent at sentencing by failing to
present mitigation evidence. Id. at 399. This case does not demonstrate contradictory
governing law or a materially indistinguishable decision that would compel a different
result in Mr. Esparza’s case.
Mr. Esparza also asserts that counsel’s opening statement foreclosed his right to
testify during trial and relieved the prosecution of its burden of persuasion. A limited
exception to Strickland’s two-part test applies in situations that “are so likely to prejudice
the accused that the cost of litigating their effect in the particular case is unjustified.”
United States v. Cronic, 466 U.S. 648, 658 (1984). One situation in which prejudice
under Strickland will be presumed is when “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” Bell v. Cone, 535 U.S. 685, 696
(2002) (quoting Cronic, 466 U.S. at 659). However, an attorney’s strategic decision to
concede certain points or even guilt of a lesser offense is not the equivalent of a
complete failure to subject the prosecution’s case to meaningful testing. See Haynes v.
Cain, 298 F.3d 375, 381 (5th Cir. 2002) (concluding “strategic or tactical decisions are
evaluated under Strickland’s traditional two-pronged test” because “Cronic” is reserved
only for those extreme cases in which counsel fails to present any defense.”) Thus, the
43

state court’s decision is not contrary to clearly established federal law.
Mr. Esparza also fails to demonstrate that the state court’s rejection of Claim 7(c)
was an unreasonable application of clearly established federal law. The Court has little
to add to the state appellate court’s thorough analysis set forth above. In short, the
Court agrees that Mr. Esparza’s counsel’s decision to pursue a mitigation defense
rather than alibi was within counsel’s purview under Colorado Supreme Court and
United States Supreme Court precedent. (See Doc. # 8-13 at 6-10) (citing Steward v.
People, 498 P.2d 933, 934 (Colo. 1972) (holding that what defense to present was
within the purview of trial counsel) and (citing Florida v. Nixon, 543 U.S. 175, 187, 189
(2004) (holding that an attorney was not “required to gain express consent before
conceding the defendant’s guilt because a defendant has the ultimate authority to
determine only whether to plead guilty, waive a jury, testify in his or her own behalf, or
take an appeal)).
Moreover, the Court agrees that the evidence against Mr. Esparza was
significant and, in light of such evidence of guilt, counsel’s decision to pursue a
mitigation defense was not deficient performance and did not prejudice Mr. Esparza.
See e.g., Haynes, 298 F.3d at 382-83 (petitioner could not establish prejudice under
Strickland stemming from counsel’s strategic concession, against petitioner’s wishes, of
facts amounting to second degree murder because evidence of guilt was
overwhelming). In any event, the state court’s decision was “not so lacking in
justification that there was an error well understood and comprehended by existing law
beyond any possibility for fairminded disagreement.” Richter, 131 S. Ct. 786-87. As a
result, Mr. Esparza is not entitled to relief on Claim 7(c).
44

V. CONCLUSION
In summary, the Court finds that Mr. Esparza is not entitled to relief on any of his
remaining habeas claims.
Under 28 U.S.C. § 2253(c)(2), this Court may issue a certificate of appealability
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when a prisoner demonstrates that jurists of
reason would find it debatable that a constitutional violation occurred, and that the
district court erred in its resolution. Mr. Esparza has not made a substantial showing of
the denial of a constitutional right. Therefore, a certificate of appealability is
denied.
Under 28 U.S.C. § 1915(a)(3), the Court certifies 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 U.S. 438 (1962). If Mr.
Esparza files a notice of appeal, he also must pay the full 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.
Finally, Mr. Esparza’s request for copies of documents from the state court
record will be denied. The state court record is currently in this Court’s possession and
will be retained in the federal courts’ possession pending the expiration of Mr. Esparza’s
time to file a notice of appeal in the Tenth Circuit or during the pendency of any appeal
he may file in the federal courts. Once his entire federal appellate process is complete,
the record will be returned to the Arapahoe County District Court and Mr. Esparza may
request copies of any documents in the state court record from that court for his state
45

court appellate proceedings.
Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (Doc. # 1) is denied and this case is dismissed with prejudice. It is
FURTHER ORDERED that there is no basis on which to issue a certificate of
appealability under 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied without
prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal
in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that Applicant’s request (Doc. # 26) for copies of
documents from the state court record, filed on December 9, 2014, is denied.
DATED January 5, 2015.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

46