Martinez v. Archuleta et al

Filing 26

ORDER re: 6 Amended Application for Writ of Habeas Corpus filed by Miguel Martinez. ORDERED that the amended Application for a Writ of Habeas Corpus Pursuantto 28 U.S.C. § 2254 6 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 Raymond P. Moore on 10/2/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-01390-RM
MIGUEL R. MARTINEZ,
Applicant,
v.
WARDEN LOU ARCHULETA, FCF, and
JOHN W. SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER DENYING AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) (“the Am ended Application”) filed pro
se by Applicant Miguel R. Martinez. Respondents have filed an Amended Answer to §
2254 Application (ECF No. 23) (“the Amended Answer”) and Mr. Martinez has filed
Applicant’s Reply to Respondents’ Answer to § 2254 Application (ECF No. 25) (“the
Traverse”). After reviewing the record, including the Amended Application, the
Amended Answer, the Traverse, and the state court record, the Court finds and
concludes that the Amended Application should be denied and the case dism issed with
prejudice.
I. BACKGROUND
Mr. Martinez is challenging the validity of his conviction and sentence in
Jefferson County District Court case number 10CR2259. Mr. Martinez originally was
charged with possession with intent to distribute a schedule II controlled substance, 25-

450 grams (Count One), a class 3 felony offense, and possession of drug paraphernalia
(Count Two), a class 2 petty offense. (See ECF No. 11-1 at 3-4.) On January 25,
2011, the trial court granted the prosecution’s motion to amend Count One to
possession with intent to distribute a Schedule II controlled substance, 25-450 g rams,
second offense, a class 2 felony offense. (See ECF No. 1 at 42.) On April 29, 2011,
Mr. Martinez agreed to plead guilty to an added Count Four charging possession with
intent to distribute a schedule II controlled substance, second or subseq uent offense, a
class 2 felony offense. (See ECF No. 11-1 at 9.) On June 6, 2011, he was sentenced
to sixteen years in prison and five years of mandatory parole. (See id.) Mr. Martinez
did not file a direct appeal.
On September 6, 2011, Mr. Martinez filed in the trial court a combined motion
seeking relief pursuant to Rule 35 of the Colorado Rules of Criminal Procedure and
appointment of counsel. (See id. at 8.) Counsel was appointed to represent Mr.
Martinez in the state court postconviction proceedings. On January 5, 2012, the trial
court denied the Rule 35 motion and a copy of the trial court’s order is attached to the
original application in this action. (See ECF No. 1 at 24-27.) The Colorado Court of
Appeals subsequently affirmed the trial court’s order denying the Rule 35 motion and a
copy of the appellate court’s order also is attached to the original application in this
action. (See id. at 115-124.) On April 7, 2014, the Colorado Suprem e Court denied Mr.
Martinez’s petition for writ of certiorari in the state court postconviction proceedings.
(See id. at 126.)
The Amended Application was filed on June 12, 2014. Mr. Martinez does not
provide a clear statement of each claim he is asserting in the Amended Application.
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However, Respondents discern the following claims in the Amended Application:
1.

Breach of a plea agreement calling for an 8-year sentence in exchange for
waiver of a preliminary hearing;

2

Ineffective assistance of trial counsel, in that:
(a) counsel failed to insist on compliance with the earlier plea agreement;
(b) counsel failed to investigate the possibility that the drugs in the bag Mr.
Martinez was carrying belonged to his wife;
(c) counsel advised Mr. Martinez that his chances of success at trial were
small;
(d) counsel advised Mr. Martinez to plead guilty to an added count
charging a higher-class felony than was originally charged and incorrectly
advised him that under the agreement:
(i) he would be eligible for alternative sentencing; and
(ii) the quantity of drugs in his possession when he was arrested
would not be used against him at sentencing;
(e) counsel advised Mr. Martinez against seeking to withdraw the guilty
plea prior to sentencing;
(f) counsel coerced Mr. Martinez into accepting the plea agreement; and
(g) there was an actual conflict of interest between counsel and Mr.
Martinez.

In a prior order the Court determined that the claims identified by Respondents are a
fair and liberal construction of the Amended Application. (See ECF No. 15 at 3.) In the
same order the Court dismissed claims 1, 2(a), 2(b), and 2(e) - 2(g) as unexhausted
and procedurally barred. Therefore, only claims 2(c) and 2(d) remain to be addressed
on the merits. Although Mr. Martinez includes arguments in the Traverse relevant to
the merits of some of the dismissed claims and in particular claim 2(g), the Court will
not address his arguments regarding the merits of the dismissed claims.
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II. STANDARDS OF REVIEW
The Court must construe the Amended Application and other papers filed by Mr.
Martinez 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. Martinez bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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.
2003). The threshold question the Court must answer under § 2254(d)(1) is whether
Mr. Martinez 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
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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
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
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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.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (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).
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
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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. Martinez
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
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
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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 APPLICANT’S REMAINING CLAIMS
The Court will address the remaining claims together because both claims raise
issues of ineffective assistance of counsel. Mr. Martinez alleges in claim 2(c) that
counsel was ineffective by advising Mr. Martinez his chances of success at trial were
small. He alleges in claim 2(d) that counsel was ineffective by advising Mr. Martinez to
plead guilty to an added count charging a higher-class felony than was originally
charged and incorrectly advising him that under the agreement: (i) he would be eligible
for alternative sentencing; and (ii) the quantity of drugs in his possession when he was
arrested would not be used against him at sentencing. As noted above, although Mr.
Martinez agreed to plead guilty to an added count charging a higher-class felony (class
2) than was originally charged (class 3), the original charge had been amended to a
8

class 2 felony offense, the same degree felony as the added count.
It was clearly established when Mr. Martinez 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 under Strickland Mr. Martinez 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. Martinez’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 (10 th 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. Martinez 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

9

792 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable.”). To show prejudice in the context of a guilty plea, Mr. Martinez must
demonstrate a reasonable probability that, but for counsel’s alleged errors, he would
not have pled guilty but would have insisted on going to trial. See Hill v. Lockhart, 474
U.S. 52, 59 (1985). In determining whether Mr. Martinez has established prejudice, the
Court must look at the totality of the evidence and not just the evidence that is helpful to
Mr. Martinez. See Boyd, 179 F.3d at 914.
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 (10 th Cir.
2001). If Mr. Martinez fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697.
The Colorado Court of Appeals applied the two-part Strickland test and reasoned
as follows in rejecting the remaining ineffective assistance of counsel claims:
Martinez argues that, had he known that the trial court
was going to sentence him to sixteen years in prison rather
than to probation and drug treatment, he would not have
pleaded guilty. In his Crim. P. 35(c) motion, he framed this
complaint as an ineffective assistance of counsel claim,
alleging that his plea counsel made “false pretenses that he
might have a chance of Alternative Sentencing and/or a
possibility of Drug Treatment.”
Even if we accept Martinez’s allegation as true, the
record reflects that counsel’s advice was accurate. At the
providency hearing, the trial court confirmed that Martinez
was probation-eligible, and his counsel requested that
Martinez be screened “for ISP, P[e]er I, ICCS and recovery
court,” a request that the trial court granted. The trial court
also carefully explained to Martinez [at] the providency
hearing that his potential prison sentence fell within the
aggravated range of sixteen to forty-eight years, but that he
was probation-eligible, and that the trial court did not yet
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know what sentence it would ultimately deem appropriate.
Thus, counsel’s representation to Martinez that he might
have a chance of alternative sentencing and drug treatment
was accurate and did not constitute ineffective assistance.
See Davis, 871 P.2d at 772.
Martinez also alleged in his Crim. P. 35(c) motion that
counsel was ineffective for counseling him that he would not
have a chance of winning an acquittal at trial. Here, too, the
record indicates that counsel’s advice did not constitute
ineffective assistance. At the providency hearing, the
prosecutor recited the factual basis for the charges, namely,
that police officers caught Martinez in possession of a duffle
bag containing approximately 270 grams of
methamphetamine packaged in six different baggies, a
scale, several pay and owe sheets, and two cell phones.
Martinez admitted at the providency hearing that the recited
factual basis was accurate. The evidence indicates that
Martinez had a low possibility of success if he had taken the
case to trial, and counsel did not provide ineffective
assistance by giving Martinez a strongly worded warning to
that effect. See People v. Adams, 836 P.2d 1045, 1048
(Colo. App. 1991) (“Competent advice of counsel, albeit
stated in strong language, does not constitute coercion
standing alone. And, the duty of defense counsel, after
conducting a thorough investigation, is to discuss the case
with complete candor and to offer the best estimate possible
as to the outcome.”) (citations omitted).
Martinez further alleged in his Crim. P. 35(c) motion
that counsel inaccurately told him that the amount of drugs
involved could not be used against him at sentencing.
Assuming the truth of this allegation, we conclude Martinez
has not shown that he was prejudiced as a result of
counsel’s representation. Although the trial court did
mention during sentencing the amount of drugs involved, the
sentencing hearing transcript reflects that the trial court
sentenced Martinez to sixteen years in prison rather than
probation because (1) he had a large number of prior drug
convictions, and (2) while defendant was on bond in this
case he left Colorado in violation of his probation conditions
and was charged with drug possession in another state.
(ECF No. 1 at 119-121.)

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Mr. Martinez fails to demonstrate that the decision of the Colorado Court of
Appeals rejecting his remaining ineffective assistance of counsel claims was contrary to
clearly established law. 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. See House, 527 F.3d at 1018.
Mr. Martinez also fails to demonstrate that the decision of the Colorado Court of
Appeals rejecting the remaining ineffective assistance of counsel claims was an
unreasonable application of clearly established federal law. With respect to claim 2(c),
in which he contends counsel was ineffective by advising him his chances of success at
trial were small, Mr. Martinez argues in the Traverse that the state court’s rejection of
that claim was based on erroneous factual determinations and that there is clear and
convincing evidence he is probably innocent because the duffel bag in his possession
when he was arrested, and the drugs in that bag, belonged to his wife. According to
Mr. Martinez,
the drugs found were, in fact, not Martinez [sic] drugs. He
was not sure there was even drugs in the black bag (he only
thought drug paraphernalia was in the bag) and had he
known the actual contents of the bag, and the amount of
drugs, he would have never taken off with it knowing the
police were dispatched. The fact still remains that Mr.
Martinez [sic] wife admitted that the black duffel bag was
her’s and then plead guilty to the possession of those drugs;
this was mentioned in the transcripts at sentencing.
(ECF No. 25 at 5.)
Pursuant to § 2254(e)(1), the Court presumes that the state court’s factual
determinations are correct and Mr. Martinez bears the burden of rebutting the
presumption by clear and convincing evidence. He has not met this burden. The state
12

court record confirms, as the Colorado Court of Appeals noted, that Mr. Martinez
admitted at the providency hearing that the factual basis for his guilty plea presented by
the prosecution was correct; i.e., he was caught in possession of a duffle bag
containing approximately 270 grams of methamphetamine packaged in six different
baggies, a scale, several pay and owe sheets, and two cell phones. This admission in
open court carries “a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63,
74 (1977). Furthermore, even in the Traverse Mr. Martinez contends only that there is
clear and convincing evidence to prove he is “probably” innocent.
In light of these facts and admissions, the state court’s legal conclusion that
counsel was not ineffective in advising Mr. Martinez that his chance of success at trial
were small is not an unreasonable application of clearly established federal law. Mr.
Martinez is not entitled to habeas relief with respect to claim 2(c) because he 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.
Mr. Martinez does not present any argument in the Traverse that specifically
addresses the state court’s rejection of his ineffective assistance of counsel arguments
in claim 2(d), in which he contends counsel was ineffective by advising him to plead
guilty to an added count charging a higher-class felony than was originally charged and
incorrectly advising him that under the agreement: (i) he would be eligible for
alternative sentencing; and (ii) the quantity of drugs in his possession when he was
arrested would not be used against him at sentencing. In any event, the unrebutted
facts as determined by the Colorado Court of Appeals demonstrate that Mr. Martinez
13

was eligible for alternative sentencing and that,
[a]lthough the trial court did mention during sentencing the
amount of drugs involved, the sentencing hearing transcript
reflects that the trial court sentenced Martinez to sixteen
years in prison rather than probation because (1) he had a
large number of prior drug convictions, and (2) while
defendant was on bond in this case he left Colorado in
violation of his probation conditions and was charged with
drug possession in another state.
(ECF No. 1 at 121.) In light of these facts, Mr. Martinez’s conclusory allegations that
counsel was ineffective fail to demonstrate the state court’s rejection of claim 2(d) was
an unreasonable application of clearly established federal law. Therefore, Mr. Martinez
also is not entitled to relief with respect to claim 2(d).
IV. CONCLUSION
In summary, the Court finds that Mr. Martinez is not entitled to relief on either of
his remaining claims. Accordingly, it is
ORDERED that the amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 6) is denied and this case is dism issed 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 October 2, 2014.
BY THE COURT:

RAYMOND P. MOORE
United States District Judge
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