Marquez v. Line et al

Filing 23

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS: The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1 ) is denied and this case is dismissed with prejudice. It is further ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). By Judge William J. Martinez on 12/12/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable William J. Martínez
Civil Action No. 14-cv-01313-WJM
ANTHONY MARQUEZ,
Applicant,
v.
RICK LINE, Warden, Arkansas Valley Corr. Fac., and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING 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 (ECF No. 1) (“the Application”) f iled by Applicant Anthony
Marquez. Respondents have filed an Answer to § 2254 Application (ECF No. 18) (“the
Answer”) and Mr. Marquez has filed a Traverse (ECF No. 22) (“the Traverse”). After
reviewing the record, including the Application, the Answer, the Traverse, 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. Marquez is challenging the validity of his conviction and sentence in Denver
District Court Case Number 05CR3500. Mr. Marquez was convicted by a jury of theft,
theft from an at-risk victim, possession of a controlled substance, and possession of a
controlled substance with intent to distribute. The judgment of conviction was affirmed
on direct appeal, although the Colorado Court of Appeals determined that the theft

convictions must be merged and that the controlled substance of fenses also must be
merged. See People v. Marquez, No. 06CA1701 (Colo. App. Mar. 18, 2010)
(unpublished) (ECF No. 11-9). Thus, the Court of Appeals vacated the conviction for
simple possession and remanded the matter with instructions to correct the mittimus to
reflect a single conviction for “theft (from an at-risk adult)” and resentence Mr. Marquez
for that offense. (See id. at 10.) On July 19, 2010, the Colorado Supreme Court
denied Mr. Marquez’s petition for writ of certiorari on direct appeal. (See ECF No. 117.) Pursuant to an amended mittimus issued in March 2011 Mr. Marquez was
sentenced as an habitual offender to concurrent terms of forty-eight and sixty-four years
in prison.
On April 27, 2011, Mr. Marquez filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 111 at 11.) On June 16, 2011, the trial court denied the Rule 35(c) m otion without a
hearing and without appointing counsel. (See id.) The trial court’s order denying the
Rule 35(c) motion was affirmed on appeal. See People v. Marquez, No. 11CA1569
(Colo. App. Apr. 11, 2013) (unpublished) (ECF No. 11-4). On Decem ber 9, 2013, the
Colorado Supreme Court denied Mr. Marquez’s petition for writ of certiorari in the
postconviction Rule 35(c) proceedings. (See ECF No. 11-2.)
The Application was filed on May 9, 2014, and Mr. Marquez presents five claims
for relief. He asserts in claim 1 that the trial court erred in refusing to sever the theft
charges from the drug charges in violation of his right to due process. He contends in
claim 2 that the evidence was insufficient to support his convictions in violation of his
right to due process. Mr. Marquez maintains in claim 3 that he was subjected to double
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jeopardy because two of the four offenses on which he was convicted are lesser
included offenses of the other convictions. He contends in claim 4 that the Colorado
Court of Appeals improperly refused to consider the severance claim on direct appeal in
violation of his right to due process. Mr. Marquez finally asserts in claim 5 that the trial
court improperly denied his postconviction Rule 35(c) motion using the wrong standard
and without holding a hearing or appointing counsel. The Court previously entered an
Order to Dismiss in Part (ECF No. 17), dismissing claims 1, 3, 4, and 5. Therefore, only
claim 2 remains to be addressed on the merits.
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers f iled by Mr. Marquez
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 (10 th 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. Marquez bears the burden of proof under § 2254(d). See
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Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011). In particular, “determ ining 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 (10 th 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 (10 th Cir.

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2003). The threshold question the Court must answer under § 2254(d)(1) is whether
Mr. Marquez seeks to apply a rule of law that was clearly established by the Supreme
Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). Clearly established federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10 th 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
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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.
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 judg ment 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 and citation 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).
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Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 131 S. Ct. at 786 (stating that “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking
in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.
Richter, 131 S. Ct. 786-87.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C. §
2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10 th 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 m ust
presume that the state court’s factual determinations are correct and Mr. Marquez
bears the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]ef erence 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 (10 th Cir. 2006). “Unless the error is a
structural defect in the trial that defies harmless-error analysis, [the Court] must apply
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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
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious ef fect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious ef fect’ 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
make this harmless error determination based upon a review of the entire state court
record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10 th 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 (10 th
Cir. 2004).
III. MERITS OF CLAIM 2
Mr. Marquez alleges in claim 2 that the evidence was insufficient to support his
convictions in violation of his right to due process. The parties agree that the proper
standard for sufficiency of the evidence, which was clearly established when Mr.
Marquez was convicted, is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In

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Jackson the Supreme Court held that “the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Id.
at 319. “This familiar standard gives full play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Id. “Under Jackson, federal courts must
look to state law for ‘the substantive elements of the criminal offense,’ but the minimum
amount of evidence that the Due Process Clause requires to prove the offense is purely
a matter of federal law.” Coleman v. Johnson, 132 S. Ct. 2060, 2064 (2012) (per
curiam) (quoting Jackson, 443 U.S. at 324, n.16). To the extent an insufficient
evidence claim involves an interpretation of state law, the state court’s interpretation
“binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (per curiam). “Sufficiency of the evidence is a mixed question of law and fact.”
Maynard, 468 F.3d at 673. The Court must apply both § 2254(d)(1) and (d)(2) and “ask
whether the facts are correct and whether the law was properly applied to the facts.” Id.
The Colorado Court of Appeals addressed the merits of Mr. Marquez’s claim
challenging the sufficiency of the evidence on direct appeal. The state court reasoned
as follows in rejecting the claim:
Defendant next argues that the evidence is
insufficient to support the jury’s verdicts. We disagree
“[I]t is unlawful for any person knowingly to . . .
possess, or to possess with intent to . . . distribute a
controlled substance.” § 18-18-405(1)(a), C.R.S. 2009. A
defendant is subject to mandatory minimum sentencing if he
or she possesses a schedule II controlled substance, such
as cocaine, weighing “[a]t least twenty-five grams . . . but
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less than four hundred fifty grams.” § 18-18-405(2)(a)(I)(A),
(3)(a)(I), C.R.S. 2009.
As applicable here, “[a] person commits theft when he
knowingly obtains or exercises control over anything of value
of another without authorization, or by . . . deception.” § 184-401(1)(a), C.R.S. 2009. Under the penalty provision in
effect during the relevant time period (2005), theft of
property worth fifteen thousand dollars or more was
classified as a class three felony. Ch. 384, secs. 3, 19, §
18-4-401(2)(d), 2007 Colo. Sess. Laws 1691, 1698
(increasing the triggering amount to twenty thousand dollars,
effective July 1, 2007).
Theft from an at-risk adult is not a separate
substantive offense. People v. McKinney, 99 P.3d 1038,
1043 (Colo. 2004) (theft from at-risk adult is penaltyenhanced form of general theft and not separate offense).
Rather, section 18-6.5-103(5), C.R.S. 2009, specifies that if
the victim of a theft of property worth five hundred dollars or
more is an at-risk adult (defined in relevant part as a person
sixty years of age [or] older, section 18-6.5-102(1), C.R.S.
2009), then the offense is elevated to a class three felony.
In assessing the sufficiency of the evidence
supporting a guilty verdict, a reviewing court must determine
whether any rational trier of fact might accept the evidence,
taken as a whole and in the light most favorable to the
prosecution, as sufficient to support a finding of guilt beyond
a reasonable doubt. In applying this standard, we must give
the prosecution the benefit of every reasonable inference
that might fairly be drawn from the evidence. Kogan v.
People, 756 P.2d 945, 950 (Colo. 1988), abrogated on other
grounds by Erickson v. People, 951 P.2d 919, 923 (Colo.
1998).
Here, the evidence, when viewed according to the
foregoing standards, establishes the following facts.
Defendant defrauded a seventy-six year-old man (the
victim) of approximately seventy thousand dollars by telling
him, falsely, that he needed money for his ill mother. Over
several months, the victim made numerous withdrawals from
his bank account and provided the funds to defendant. At
trial, the victim was unable to recall many of the withdrawals
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he had made, or to identify defendant. However,
defendant’s identity as the perpetrator was established by a
bank employee who testified that she had called the police
after defendant accompanied the victim to the bank, took
possession of more than nine thousand dollars in cash
which the victim had withdrawn from his account, and falsely
stated that the victim was his father. In addition, a police
officer testified that the victim had identified defendant as
the person to whom he had given large sums of money.
An investigator testified that he obtained a warrant for
defendant’s arrest and went to an apartment building with
several police officers. As he approached, the investigator
encountered defendant, who was wearing a pair of black
pants with red stripes. Defendant ran inside and changed
his pants, but he soon surrendered while attempting to flee.
The investigator then searched the residence and found the
red striped pants he had seen defendant wearing. The
investigator searched the pants and found more than one
hundred and ninety-five grams of crack cocaine, and nearly
nine thousand dollars in cash. During a search of the
house, one of the officers found a digital scale.
We conclude this evidence amply supports the jury’s
verdicts as to all elements of the offenses and the special
sentencing provisions.
(ECF No. 11-9 at 4-7.)
Mr. Marquez does not contend that the decision of the Colorado Court of
Appeals is contrary to Jackson. In other words, 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 in his case. See House,
527 F.3d at 1018.
Mr. Marquez also fails to demonstrate the state court’s ruling is an unreasonable
application of Jackson. Mr. Marquez contends with respect to the theft conviction that
the evidence was insufficient because: (1) no theft occurred; (2) the only evidence at
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trial that he possessed the victim’s money was the bank manager’s testimony regarding
an incident on June 9, 2005, in which $9,500.00 of the victim’s money that had been
withdrawn was returned to the victim the same day and redeposited into the victim’s
account after being possessed only briefly by Mr. Marquez; (3) the victim did not identify
Mr. Marquez in court; (4) the victim’s testimony was confused about whether he gave
money to Mr. Marquez, for what purpose, and how much; and (5) there was no link
between the money found when Mr. Marquez was arrested on June 15, 2005, and any
money taken from the victim.
The state court acknowledged that the victim’s testimony was confused and that
he did not identify Mr. Marquez at trial. However, the state court determined the
evidence at trial established the victim made numerous withdrawals totaling
approximately seventy thousand dollars over a period of several months, the victim
gave the money to Mr. Marquez who stated falsely that he needed the money for his ill
mother, and Mr. Marquez’s identity as the recipient of the money was established by
witnesses other than the victim. The Court presumes these factual findings are correct
and Mr. Marquez’ vague and conclusory assertion that no theft occurred is not clear
and convincing evidence that would overcome the presumption of correctness. See 28
U.S.C. § 2254(e)(1).
In light of these facts, the state court’s legal conclusion that the evidence was
sufficient to support a conviction for theft under Colorado law was not an unreasonable
application of Jackson. Mr. Marquez’s argument regarding the incident on June 9,
2005, does not alter this conclusion and dem onstrate the state court unreasonably
applied Jackson. The bank manager testified that Mr. Marquez briefly possessed the
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money the victim withdrew on June 9, 2005, lied about his relationship with the victim,
and attempted to get the victim to leave the bank with the money before the police
arrived. Furthermore, the theft conviction was not premised solely on the money the
victim withdrew on June 9, 2005. Instead, the evidence supporting the theft conviction
demonstrates the victim made numerous withdrawals totaling approximately seventy
thousand dollars over a period of several months. Finally, Mr. Marquez’s argument that
there was no evidentiary link between the money found when he was arrested on June
15, 2005, and any money taken from the victim is not relevant to the Court’s analysis
under Jackson because the prosecution was not required to establish such a link in
order to prove Mr. Marquez was guilty of theft under Colorado law.
Mr. Marquez contends with respect to the controlled substance conviction that
the evidence was insufficient because no evidence was presented at trial to establish
the knowing element, the possession element, or the intent to distribute element. The
state court disagreed, based on the facts that Mr. Marquez ran back into an apartment
when he was approached by police, quickly changed his pants, attempted to flee, and
the pants he had been wearing were found to contain a substantial amount of crack
cocaine and cash. The Court presumes these factual findings are correct and Mr.
Marquez fails to present clear and convincing evidence that would overcome that
presumption. See 28 U.S.C. § 2254(e)(1). Instead, Mr. Marquez seeks to diminish the
significance of these facts by insinuating that other individuals in the apartment when
he was arrested also had access to the pants and that there w as no evidence linking
him to drug paraphernalia found in the apartment. However, the state court properly
viewed the evidence in the light most favorable to the prosecution, as it was required to
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do under Jackson, and reasonably concluded that a rational juror could have found
beyond a reasonable doubt that Mr. Marquez was a drug dealer and knowingly
possessed the drugs found in the pants he took off after he was approached by the
police.
Ultimately, Mr. Marquez fails to demonstrate that the jury’s findings with respect
to either the theft conviction or the controlled substance conviction “was so
insupportable as to fall below the threshold of bare rationality” required under Jackson.
Coleman, 132 S. Ct. at 2065. As a result, the Court cannot conclude that the state
court’s determination “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. Thus, Mr. Marquez is not entitled to relief
on claim 2. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) is denied and this case is dismissed with prejudice. It is
further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c).
Dated this 12th day of December, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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