Velarde v. Archuleta et al

Filing 32

ORDER: 16 Amended Application for Writ of Habeas Corpus filed by Wighty W. Velarde is DENIED. The issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(a) is DENIED. Leave to proceed in forma pauperis on appeal is DENIED. Entered by Judge Christine M. Arguello on 6/19/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Christine M. Arguello

Civil Action No. 14-cv-02356-CMA
WIGHTY W. VELARDE,
Applicant,
v.
LOU ARCHULETA, Warden, Fremont Corr. Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING PETITION FOR HABEAS CORPUS
Christine M. Arguello, District Judge.

The matter before the Court is an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 16. The Court has determined it can
resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R.
Governing Section 2254 Cases 8(a).
I. BACKGROUND
Applicant pleaded guilty to second degree murder and one count of attempted
sexual assault. See Pre-Answer Resp., App. C, ECF No. 9-3, at 4. In the only appeal
that Applicant submitted to the Colorado Court of Appeals (CCA) challenging both his
direct appeal and the denial of his Colo. R. Crim. P. 35(c) postconviction motion, see id.
at 3, the CCA summarized the underlying facts and proceedings as follows:
According to the presentence report, officers discovered the
victim’s deceased body in a hotel room, with blood on the mattress, bloody
bedding on the floor, and bloody bedding in the bathroom. It looked like
there had been a struggle in the room.

Velarde thereafter told the police the following account of the
victim’s death. He said he and the victim, who was his wife, had been
drinking heavily before engaging in “real hard sex,” which included his
penetrating her anally, with both his penis and his fingers. He further said
that she began bleeding heavily, originally saying that she was bleeding
from menstruation but later adding that he noticed blood coming from her
anus. He said that she then lost consciousness and he could not revive
her with CPR. He said that he believed the victim died from a heart
attack.
The doctor performing the autopsy concluded that the victim bled to
death from injuries to her anus.
Velarde was charged with first degree murder (specifically felony
murder) and two counts of sexual assault. Pursuant to a plea agreement,
Velarde pleaded guilty to second degree murder and one count of
attempted sexual assault, and the other counts were dismissed. The
parties stipulated to a term of thirty-three years in prison for the second
degree murder count and a concurrent term of six years for the attempted
sexual assault count.
Prior to sentencing, Velarde moved to withdraw his plea, alleging,
as pertinent here, that when he pleaded guilty (1) he had a defense,
specifically, that his wife had died of a heart attack before he accidentally
caused her to bleed, and (2) his plea counsel pressured him into pleading
guilty.
After a hearing on the motion, at which Velarde and his plea
counsel both testified, the district court denied the motion to withdraw the
plea, reasoning that (1) counsel had considered the “heart attack” defense
but found it implausible and the “heart attack” defense was neither new
nor a surprise to Velarde and (2) plea counsel had not inappropriately
pressured Velarde to plead guilty.
After sentencing, Velarde filed Crim. P. 35(c) motions for
postconviction relief, alleging, as pertinent here, that plea counsel was
ineffective for failing to (1) investigate whether the victim’s cause of death
related to heart issues, (2) consider intoxication as a defense to the sexual
assault charges, and (3) advise him of his right to testify. He also alleged
that his post-plea counsel had been ineffective in failing to perfect an
appeal of the denial of his motion to withdraw his guilty plea.
After hearings at which Velarde, plea counsel, and post-plea
counsel testified, the postconviction court concluded, in a thorough and
detailed order, that plea counsel had not provided ineffective assistance.
In so concluding, the postconviction court found that plea counsel had (1)
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reviewed the available evidence on the victim’s cause of death, and acted
within his professional judgment in pursuing a potential defense of consent
that would rely on the cause of death stated by the coroner; (2) thoroughly
explored the issue of intoxication as a potential defense; and (3) advised
Velarde of his right to testify. The postconviction court also concluded that
post-plea counsel had been ineffective in failing to perfect an appeal of the
denial fo Velarde’s motion to withdraw his guilty plea, and thus reinstated
Velarde’s right to file such an appeal.
People of the State of Colo. v. Velarde, No. 12CA2183,1-4 (Colo. App. June 26, 2014).
II. HABEAS CLAIMS
Applicant, acting pro se, initiated this action on August 25, 2014, and
subsequently, pursuant to Court order, filed an Amended Application on November 10,
2014. He asserts four claims in the Amended Application as follows:
(1) An unknowing and involuntary plea entered in violation of the
Fourteenth Amendment;
(2) Ineffective assistance of counsel for failure to investigate the
possible defenses of voluntary intoxication and victim’s heart
attack;
3) Ineffective assistance of counsel for failure to advise of automatic
sentence enhancer and for gross misadvise regarding parole
eligibility; and
4) Ineffective assistance of counsel for failure to seek suppression of
statements to police upon arrest.
Am. Application, ECF No. 16.
On November 11, 2014, Magistrate Judge Boyd N. Boland entered an order
directing Respondents to file a Supplemental Pre-Answer Response regarding the
November 10, 2014 Amended Application and address the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28
U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those
defenses. Respondents filed a Supplemental Pre-Answer Response on November 24,
3

2014. Applicant filed a Supplemental Reply on December 18, 2014. Respondents
concede in the Pre-Answer Response that the Application is timely, but they argue that
Claim Two is unexhausted and Claims One, Three, and Four are anticipatorily
defaulted.
This Court reviewed the Amended Application, Supplemental Pre-Answer
Response, and Supplemental Reply and determined that Claim Two is exhausted. The
Court also deferred a ruling on whether Applicant had demonstrated cause for his
procedural default under Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309 (2012), pending
the Court’s receipt of the state court record in the criminal case at issue. Respondents
were directed to file an answer that fully addresses the merits of Claim Two, and if they
desired to include additional arguments concerning the merits of Claims One, Three,
and Four.
Respondents filed an Answer, ECF No. 25, on January 21, 2015. Applicant filed
a Traverse, ECF No. 29, on March 9, 2015.

III. LEGAL STANDARDS
A. Pro Se Standard of Review
Applicant is proceeding pro se. The Court, therefore, “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However,
a pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts
4

that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant’s pro se status does not
entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958
(10th Cir. 2002).
B. 28 U.S.C. § 2254
Section 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).
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 pursuant to § 2254(d)(1) is whether Applicant seeks to
apply a rule of law that was clearly established by the Supreme Court at the time his
conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The “review
under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the prisoner’s claim on the merits.” Cullen v. Pinholster, ---- U.S. ----, 131
S. Ct. 1388, 1398 (2011). “Finality occurs when direct state appeals have been
exhausted and a petition for writ of certiorari from this Court has become time barred or
5

has been disposed of.” Greene v. Fisher, ---- U. S. ----, 132 S.Ct. 38, 44 (2011) (citing
Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).
Clearly established federal law “refers to the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Williams, 529 U.S. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice.
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) (citation omitted).
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. Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably extends, or

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unreasonably refuses to extend, a legal principle from Supreme Court
precedent to a new context where it should apply. Carter [v. Ward], 347
F3d. [860,] 864 [10th Cir. 2003] (quoting Valdez [v. Ward, 219 F.3d [1222]
1229-30 [10th Cir. 2000]).
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective one. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. In addition,
[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, 562 U.S. 86, 101 (2011) (internal quotation marks and citation
omitted). 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. at 102. “[E]ven a strong
case for relief does not mean the state court’s contrary conclusion was unreasonable.”
Id. (citation omitted). “Section 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute for
7

ordinary error correction through appeal.” Id. at 102-03 (internal quotation marks and
citation omitted).
“[O]nly the most serious misapplications of Supreme Court precedent will be a
basis for relief under § 2254.” Maynard, 468 F.3d at 671.
Furthermore,
[a]s a condition for obtaining habeas corpus relief from a federal court, a
state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 562 U.S. at 103.
The Court reviews claims of factual errors pursuant to 28 U.S.C. § 2254(d)(2)
and . See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section
2254(d)(2) allows a court to grant a writ of habeas corpus only if the state court decision
was based on an unreasonable determination of the facts in light of the evidence
presented. Pursuant to § 2254(e)(1), the Court must presume that the state court’s
factual determinations are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982),
and Applicant bears the burden of rebutting the presumption by clear and convincing
evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). “The
standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
A claim, however, may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for rejecting the claim. Richter,
562 U.S. at 98 (“[D]etermining whether a state court’s decision resulted from an
8

unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning”) (citations omitted). Furthermore,
“[w]hen a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.” Id. at 99.
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
[its] independent review of the record and pertinent federal law persuades [it] that [the]
result contravenes or unreasonably applies clearly established federal law, or is based
on an unreasonable determination of the facts in light of the evidence presented.” Id. at
1178. “This ‘independent review’ should be distinguished from a full de novo review of
the [applicant’s] claims.” Id. (citation omitted). Likewise, the Court applies the AEDPA
(Antiterrorism and Effective Death Penalty Act) deferential standard of review when a
state court adjudicates a federal issue relying solely on a state standard that is at least
as favorable to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d
1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court,
and if the claim also is not procedurally barred, 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).

IV. ANALYSIS
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A. Claim Two
Applicant asserts in Claim Two that counsel was ineffective because he failed to
investigate the possible defenses of intoxication and heart attack. ECF No. 16 at 6. He
further contends that counsel failed to explain to Applicant that voluntary intoxication is
a defense to a murder charge. Id. Respondents argue that the “CCA plainly applied the
correct governing principle and [A]pplicant does not point to any Supreme Court case
reaching a result diametrically different” from the CCA’s on materially identical facts,”
with respect to these claims. ECF No. 25 at 19.
It was clearly established when Applicant was convicted that a defendant has a
Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed
questions of law and fact. See id. at 698.
To establish that counsel was ineffective, Applicant must demonstrate both that
counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. See id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[A]
court considering a claim of ineffective assistance must apply a strong presumption that
counsel’s representation was within a wide range of reasonable professional
assistance.” United States v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011) (citations
and internal quotation marks omitted). It is an applicant’s burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances, see Strickland, 466 U.S. at 689, and that the errors were so serious that
“counsel was not functioning as the counsel guaranteed the defendant by the Sixth
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Amendment,” Rushin, 642 F.3d at 1307 (quoting Richter, 562 U.S. at 104) (emphasis,
citation, and internal quotation marks omitted). Applicant bears the burden of rebutting
this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). An
applicant must show counsel failed to act “reasonably considering all the
circumstances.” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland,
466 U.S. at 688, 690) (internal quotation marks omitted).
If Applicant fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claim must be dismissed. See Strickland, 466 U.S. at 697.
Pursuant to § 2254(e)(1), the factual findings of the state courts are presumed correct.
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).
Under the prejudice prong, an applicant must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. In assessing prejudice under
Strickland the question is whether it is reasonably likely the result would have been
different. Richter, 562 U.S. at 111. “The likelihood of a different result must be
substantial, not just conceivable.” Id. at 112 (citing Strickland, 466 U.S. at 696.)
Furthermore, under AEDPA, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
whether defense counsel’s performance fell below Strickland’s standard,” which is the
question asked “on direct review of a criminal conviction in a United States district
court.” Richter, 562 U.S. at 101. “When § 2254(d) applies, the question is not whether
11

counsel’s actions were reasonable. The question is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id. at 105.
i. Heart Attack Defense
“The duty to investigate derives from counsel’s basic function . . . to make the
adversarial testing process work in the particular case.” Williamson v. Ward, 110 F.3d
1508, 1514 (10th Cir. 1997) (internal quotation marks omitted). “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Id. (internal quotation marks omitted). “[S]trategic choices
made after less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation. In other
words, counsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
690-91. “Counsel [is] entitled to formulate a strategy that [is] reasonable at the time and
to balance limited resources in accord with effective trial tactics and strategies.”
Richter, 562 U.S. at 107.
With respect to the Heart Attack defense, the CCA found as follows:
B. The Alleged “Heart Attack” Defense
Here, concerning the alleged “heart attack” defense, Velarde
testified that he told his plea counsel of a specific instance approximately
two years prior to the victim’s death where the victim had experienced
heart palpitations and had received medical treatment in New Mexico, but
plea counsel failed to investigate the medical records of that incident.
Plea counsel, in contrast, testified that his investigation for this case
included reviewing discovery, interviewing Velarde, interviewing witnesses
including the coroner, and visiting the crime scene. Plea counsel further
testified that based on the interview with the coroner and the medical
evidence, he was developing a defense based on consent. Specifically,
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according to defense counsel, the medical evidence suggested that
Velarde did not perform a particular nonconsensual sex act to which he
had referred in a police interview. Plea counsel further testified that he
knew of Velarde’s statements that the victim had an irregular heartbeat
and that he had hazy memories of trying to obtain the victim’s medical
records in New Mexico, but ultimately there was no indication that heart
failure was the cause of the victim’s death.
On this evidence, the postconviction court concluded that Velarde
failed to establish that plea counsel was ineffective in his consideration of
the cause of death of the victim and whether an irregular heartbeat had
any significance to this case. The court found and reasoned that plea
counsel reviewed the available evidence concerning the victim’s cause of
death, and that his decision to present a defense based on the cause of
death stated by the coroner was well within his sound professional
judgment.
Because the record supports these findings, we will not disturb the
district court’s conclusion that plea counsel was not ineffective in
investigating any potential “heart attack” defense. See [People v.]
Washington, [2014 COA 41] ¶ 17, __ P.3d at ___ (We will not disturb the
postconviction court’s findings when they are supported by evidence in the
record.).
Velarde, No. 12CA2183, at 12-14.
In the Traverse, relying on Wiggins v. Smith, 539 U.S. 510, 521-22 (2003), and
Strickland, 466 U.S. at 691, Applicant agues that counsel had a duty to make
reasonable investigations or make a reasonable decision that particular investigations
were unnecessary. Applicant further asserts that counsel only had vague recollections
as to conducting investigations regarding the victim’s previous medical history and
provided no records that he did conduct such investigations. ECF No. 29 at 4.
Applicant also contends that plea counsel admits in his testimony that he probably
should have conducted a more thorough investigation of the coroner’s findings to
determine if there was a possibility that the victim died of a heart problem. Id.

13

At the Rule 35(c) hearing, Applicant’s plea attorney testified during direct
examination as follows regarding the victim’s irregular heartbeat.
Q.

No problem. Mr. Cherner, I want to move on to
talking about the investigation and specifically this issue of
an irregular heartbeat in this case that the victim may have
had.
Did Mr. Velarde ever discuss with you that the victim
in this case had an irregular heartbeat.

A.

I can’t recall the conversation but I’m sure he did, and
I think it’s mentioned either in the discovery or in his videos.
We were aware of it. I just I can’t remember how it came to
us, that’s right. It might have been in the handwritten
statement that he gave to police.

Q.

What types of investigation did you do on that issue
along with -- what type of investigation did you do with that
issue to the best of your ability?

A.

Well, I know I met with the coroner pretty early
because I wanted to understand the cause of death. This
case was unusual to say the least in the way the death
occurred, and I didn’t have any experience in those kind of
wounds.
So I met with him for an hour I think, maybe more,
before the preliminary hearing, and I eventually decided to
call him at the prelim so I know I talked to him again to prep
his testimony, and then of course, we put him on the stand.
And either before or after the preliminary hearing, we
took the coroner to the jail to physically examine Mr.
Velarde’s hands so he could understand their exact
dimensions in preparation for using the same theory at trial.
It had to do with whether his hand was of a certain
size relative to the injuries that were actually observed. He
testified at the preliminary hearing it was doubtful that Mr.
Velarde could have caused -- I have that backwards. It was
doubtful that penetration could have occurred as deep as
even Mr. Velarde claims in his own video because there was
insufficient damage to the sphincter muscle at the anus.
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Simply put, Mr. Velarde’s hand would have caused
more damage going through that opening than it did. The
internal damage was a different issue, but the lack of
damage to the sphincter muscle tended to negate the fact
that he penetrated the woman with his hand as deeply as he
claimed he had, and that in turn was tied to the issue of
consent.
Our argument was he didn’t exceed the scope of
consent between he and his wife. Had he penetrated more
deeply, he would have but he didn’t. That was our
argument.
So that was part of our investigation, or really
education is maybe a better way to put it, of the injuries and
the mechanism of death.
You’ve had my file for months so I haven’t had a
chance to look back at my notes. I have looked at what I
have on the computer, but that’s only a smidgen of what we
generate. So I don’t have my notes of my interview with the
coroner.
The People did provide me with a copy of the autopsy
report the other day and I read through it again, but there
wasn’t any indication in the autopsy report that the cause of
death was other than massive exsanguination of bleeding
from the internal wounds in the anal area.
And there was a broken neck which was -- I’m not
even sure it was premortem that didn’t appear to have
anything to do with the cause of death. There was extensive
liver damage I’m assuming from years of alcohol abuse and
some other things, but there was no indication of heart
failure from any cause.
Now, if I did this right. I should have asked the
coroner was there any indication of other cause of death
that’s not in your report and what about heart failure, et
cetera. I don’t know if I did or did not because I haven’t seen
my notes.
But even if he -- well, to make a long story short, we
didn’t have any evidence that the cause of death was other
than what the coroner set forth.
15

As we moved towards trial, we considered getting a
second medical examiner look at it, but when I say it, I’m not
entirely sure whether we were looking at that issue or
whether we wanted to address the physical testimony, the
expert testimony about the geometry of the wound and fist
as I’ve explained, but I did notice I had a note on the
computer about getting a second opinion from a pathologist.
Q.

Did your investigation -- did you ever investigate or
get any documents from New Mexico or anywhere where the
victim in this case was from about the irregular heartbeat or
anything like that?

A.

Right. It was an interesting situation. My client may
have been the holder of the medical privilege. It goes like
this.
I think the law is if a person dies, their privilege
devolves down through their estate, and I don’t remember if
she had a will or not as I sit here, but if she died intestate,
then the heir would be the husband probably, and I know we
had some thinking are we the holder -- is Mr. Velarde the
holder of the medical privilege by virtue of that and then the
effort would be to try to get some medical records.
In reviewing the material I have available to me, I did
see we tried to get other records of hers out of New Mexico
and couldn’t find any indication we tried to get medical
records. I have some hazy memories about that, but they’re
no more than hazy memories about getting the actual
medical records.
Now, you asked if we did any investigation in New
Mexico and we did by phone. We did extensive
investigation. That was because the government was
seeking to admit similars and eventually filed a motion along
those lines, and they sent somebody down there for a couple
days, the prosecution did, to interview any number of people
in their hometown, Mr. Velarde’s hometown.
We interviewed the same people and others by
phone, and se we had an extensive investigation done in
New Mexico about Mr. Velarde and Ms. Notsinneh’s
relationship over the years.

16

Q.

To the best of your recollection, did you ever obtain
any records dealing or see any records dealing specifically
with the issue of the irregular heartbeat?

A.

I don’t know. But I don’t have any recollection of any
evidence that the irregular heartbeat was an issue that we
could use in court. So my guess is we never got anything
that helped us.
I do know it came up. After I was no longer counsel, it
came up in the Rule 32 motion and litigated there.

Velarde, No. 06CR236, Sept. 2, 2011 Rule 35(c) Hr’g at 22-28.
Plea counsel also testified at the change of plea hearing and stated as follows.
A.

In that regard, one of the first things we did, and I do
this in many murder cases because I find it very useful, is to
sit down with the Coroner for an hour or an hour and a half
and make sure I understand what’s in that coroner’s report.
If I remember right -- oh, no, that was another -- we
met with the coroner in my office for over an hour. We went
over his report. We had -- Leslie and I met with the coroner.
We had many questions for him. He took it through -- he
took us through and he actually gave us some helpful
information, which led to him being called as a witness in the
preliminary hearing by the defense.
And I consulted with at least one other coroner, as
well. And of course, I talked to Mr. Velarde and he was
aware of the full range of evidence about cause of death,
both from the coroner and all the other sources. I did not
see that this case could be defended on a claim that she
died, but not because of Mr. Velarde’s conduct.

Q.

Well, your examination of the coroner in the document
that we made an exhibit in this case has Dr. Gallagher [sic]
stating that it would be highly unlikely that he could get his
fist into the anus; you remember that?

A.

Yes, That’s Dr. Galloway.

Q.

Galloway. Excuse me.

17

A.

And yes, that’s correct.

Q.

And –

A.

But that tended to -- see, we put that on because in our view,
and with all due respect, Your Honor, you were wrong about your
ruling, but it had to do with cause of death -- I’m sorry, not cause of
death, but consent.
That was the -- that’s why we put that on at the
preliminary hearing, because we were arguing that the victim
consented to the level of contact which was visited upon her
by Mr. Velarde. And we argued strenuously at the prelim
that the coroner’s testimony proved that he didn’t reach in so
far that he violated the scope of the consent which was
implied or explicit in the relationship between he and his wife
and the behavior leading up to that day and the behavior on
that day. So it’s all a consent issue, not a cause of death
issue.

Id., Aug. 10, 2007 Withdraw Plea Hr’g at 73-74.
According to plea counsel’s testimony at both the withdrawal of plea and Rule
35(c) hearings, counsel had discussed the coroner’s report with the coroner, who
confirmed that the cause of death was massive bleeding from the internal wounds in the
anal area. Based on these findings, plea counsel’s strategy was to argue Applicant had
not violated the scope of consent between Applicant and his wife making the issue of
one of consent and not of cause of death. Counsel further testified that because he did
not have his notes available he could not say whether he asked the coroner if there
possibly were other causes of death, but that would have been the proper question for
him to ask. Nonetheless, plea counsel testified that they did not have evidence
otherwise that would have indicated cause of death was other than massive bleeding.
The Court finds that the CCA’s credibility determination regarding plea counsel’s
testimony is supported by the record and these findings of facts are entitled to
18

deference. See Felkner v. Jackson, 562 U.S. 594, 597 (2011) (under the Antiterrorism
and Effective Death Penalty Act (AEDPA) a trial court’s determination based largely on
evaluation of credibility is entitled to great deference and is sustained unless clearly
erroneous) (citations and quotation marks omitted). Plea counsel made reasonable
investigations, and as to not pursuing an investigation of the victim’s medical records,
made a reasonable decision that any further investigation regarding this issue most
likely was unnecessary based on the autopsy report.
Even if trial counsel was ineffective, as Applicant suggests in the Traverse, in not
pursuing the alleged irregular heartbeat issue, Applicant fails to assert how he was
prejudiced by counsel’s conduct. Applicant does not assert what trial counsel would
have discovered if he had investigated the medical records and interviewed witnesses
that would support a cause of death other than massive bleeding.
Therefore, in light of the evidence presented in the state court proceedings, the
CCA’s determination was reasonable. The factual findings relied on by the trial court
are presumed correct in this federal habeas proceeding and are supported by the state
court record. Because Applicant does not point to any clear and convincing evidence to
the contrary, see 28 U.S.C. § 2254(e)(1); Cullen, 131 S. Ct. at 1403, the Court finds that
Applicant has not demonstrated a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Based on the above findings, the CCA decision regarding Applicant’s irregular
heartbeat claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States and did not result in a decision that was based on
19

an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
ii. Voluntary Intoxication
In the Traverse, Applicant concedes that plea counsel’s investigations regarding
intoxication were sufficient. The Court, therefore, dismisses this claim. To the extent in
Claim Two Applicant asserts plea counsel incorrectly told him that intoxication is not a
defense to anything in his case, the CCA found as follows.
C. The Alleged Intoxication Defense
Concerning the intoxication defense, Velarde testified that his plea
counsel told him that intoxication was absolutely not a defense to anything
in his case and that he would not have accepted the plea agreement if he
had known that intoxication could have been used as a defense.
Plea counsel, in contrast, testified to why intoxication was not a
defense to the crime at issue and under the particular facts of this case.
Specifically, plea counsel testified that he advised Velarde that intoxication
is not a defense to a knowing crime. Plea counsel further testified that
although there was evidence that Velarde was very intoxicated during the
crime, Velarde was nonetheless a “pretty good historian” of the crime – in
lengthy and extensive police videos, he described the crime in detail –
thus making it hard to argue that he was so drunk that he did not know
what he was doing. Plea counsel thus testified: “[S]etting aside whether
intoxication is a defense to whatever he’s charged with, you didn’t have
the facts to run with it even if it was a defense. He was well able to
describe what happened.”
On this evidence, the postconviction court concluded that plea
counsel was not ineffective in addressing the issue of intoxication and its
possible use as a defense in this case. The court found and reasoned
that plea counsel thoroughly explored the issue of intoxication as a
potential defense, explained to Velarde that intoxication could not be used
as a defense to a knowing crime, and viewed the intoxication issue as
complicated by the fact that Velarde provided a detailed history of the
events surrounding the victim’s death.

20

Because the record supports these findings, we will not disturb the
district court’s conclusion that plea counsel was not ineffective in his
analysis of any potential intoxication defense. See id.
Velarde, No. 12CA2183, at 14-15.
Respondents argue Applicant fails to rebut with clear and convincing evidence
the CCA’s factual conclusion that he was not so intoxicated to be held responsible.
Answer, ECF No. 25 at 23. Respondents further argue, relying on People v. Harlan, 8
P.3d 448, 470-71 (Colo. 2000), overruled on other grounds by People v. Miller, 113
P.3d 743 (Colo. 2005), that voluntary intoxication is not a defense to a “knowing” crime
such as second degree murder, which is not a specific intent crime. Id. Given Applicant
was not charged with, or pled guilty to, a crime that was a specific intent crime,
Respondents further argue voluntary intoxication was not available as a defense to
Applicant’s crime. Id. at 24. Respondents, therefore, conclude that plea counsel’s
advice regarding the rejection of voluntary intoxication as a defense was correct and
that counsel was not ineffective in his decision to not pursue this as a defense. Id. at
24-25.
Applicant fails to assert in either the Application or the Traverse any claim that
counters Respondents’ voluntary intoxication argument.
“Colorado statutes allow juries to consider evidence of a defendant’s voluntary
intoxication when it ‘is relevant to negative the existence of a specific intent if such
intent is an element of the crime charged.’ ” People v. Lucas, 232 P.3d 155, 162 (Colo.
2009) (quoting Colo. Rev. Stat. § 18-1-804(1)). Voluntary intoxication is not an
affirmative defense, and only “sets forth a rule concerning the admissibility of evidence

21

of intoxication by the defendant to counter the prosecution’s evidence that the
defendant had the requisite specific intent of the charged offense.” See id.
At the Rule 35(c) hearing, plea counsel testified on direct examination as follows
regarding the possibility of a voluntary intoxication defense.
Q.

A.

Mr. Cherner, now I want to move on to talking about
the defense of intoxication. Did you and Mr. Velarde discuss
the possibility of the defense of intoxication being raised in
this case?
Yes.

Q.

Can you just discuss to the best of your recollection
what you remember those discussions being.

A.

Well, the clearest piece comes from a memo that I
wrote either right before or right after he pled in which I wrote
down that we specifically talked about it. I cited a case to
him that said intoxication is not a defense to a knowing
crime, answered all his questions about it.
So my presentation to him at that point was it’s not a
defense because you’re charged with knowing crimes.
Whether we spoke about that earlier, I don’t know. We very
well might have because intoxication was a big part of the
facts in this case, or maybe internally the lawyers talked
about it and we were aware of it. We may or may not have
told him about it. I can’t say for sure.
But I know at some point based on that memo either
right before or right after he pled, we did have a good
discussion about it.

Q.

Mr. Cherner, you just said intoxication was a big part
of this case. To the best of your recollection, can you just
kind of go through how intoxication was part of this case.

A.

It would be easier to say how it wasn’t. It would be a
shorter conversation. I’m sorry, but the case was drenched
in alcohol. Their relationship was built around alcohol.

22

Mr. Velarde if I remember right in the videos
describes, and in his handwritten statement describes, a
nonstop drinking binge, which apparently was a subset of
lifestyle of drinking binges, starting at or during a conference
that I think Ms. Notsinneh was attending in Fort Collins if I
remember right, and they drank their way from Fort Collins to
the Denver area.
The police found the room filled with alcohol
containers. The two of them are drunk the whole time
they’re in the motel. Mr. Velarde leaves, drinks some more
and ends up getting pulled over for drunk driving I think in
the Springs with a blood alcohol in excess of .4.
So you could make the argument for the entire fact
pattern he’s intoxicated and not just a little but dramatically.
However, despite that, in the videos to the police which are
extensive and lengthy, he describes in some detail
everything that goes on.
There are periods where he mentions drifting in and
out of consciousness, but he’s a pretty good historian for all
this unfortunately which I think in the courtroom would make
it hard to argue that he was so drunk that he didn’t know
what he was doing.
So setting aside whether intoxication is a defense to
whatever he’s charged with, you didn’t have the facts to run
with it even if it was a defense. He was well able to describe
what happened.
I’ve only run intoxication as a defense once or twice I
think in my career, and I don’t know anybody -- that’s
overstating it. In my judgment, it’s a very, very risky
defense. It goes in that group if you’ve got nothing else,
maybe that’s what you’re going to try.
I don’t think juries are particularly enamored with the
idea that you can go get yourself hammered and then go out
and commit crimes. That’s the way they see it. Technically
it’s not a crime if it’s a defense, but the misconduct is not
easily excused by jurors. That’s sort of my general belief but
I’ve only actually run it a couple of times.

23

Q.

As to specifically the element of whether the victim
knew -- whether the defendant knew the victim was
incapable of appraising the nature of the victim’s contact, did
you ever discuss whether intoxication could be used to
negate that specific element?

A.

I can’t remember that I did. I don’t know what else to
tell you about that.

Velarde, No. 06CR236, Sept. 2, 2011 Rule 35(c) Hr’g at 28-32.
Plea counsel went on to testify during cross examination as follows with respect
to the voluntary intoxication defense.
Q.

I want to turn it just a little bit. I have a few more
questions in the area of intoxication then. You talked about
this some on direct examination.
Given that consent would have most likely been the
defense and the best way to proceed in the case, did you
then rule out intoxication or at least conclude that as part
of the consent it may have been, but it would have been
better to go with consent rather than straight on intoxication,
or is there some sort of blending between the two? If you
can talk about that.

A.

Well, intoxication was problematic on two levels.
One, it’s not a defense to a knowing crime so you have to
use it in some other fashion, but I never thought much about
that because of the other problem. The facts didn’t back it
up.
Despite the fact that Mr. Velarde was intoxicated or
near death, over .4, he was able to do all kinds of things. He
described the sexual activity. He described dealing with the
death. He described before and after. He described why he
left the body where he did, what he did after the death. He
described driving a vehicle. In fact, he was apprehended 40
or 50 miles away and managed to drive.
But most importantly, he described the victim being in
and out of consciousness which is the $ 64,000 piece of
evidence if you’re the prosecutor. In his own words, he
said I knew she was conscious and unconscious.
24

Well, then, however much you and I might need to
drink, Mr. Velarde didn’t have enough to drink to prevent him
from knowing what’s going on. At least my fear was that
was how a jury would have looked at it.
Q.

Sir, I want to talk to you about your recollection as to
Mr. Velarde drinking and at what point he may have been
fully intoxicated.
Is it fair from your review or your memory from the
case that there is at least some information from Mr.
Velarde’s statement that after he realized the victim died,
then he started to consume alcohol at that point?

A.

Well, yes. He had more after, not to say he didn’t
have a lot before. But yeah, I think he describes drinking
whiskey, I can’t remember, either while he’s driving south or
before he gets in the car. I can’t remember the exact
sequence, but yes.

Q.

Does he also describe drinking whiskey in the hotel
room after he realized that she had died?

A.

Let me -- yes, he does.

Q.

So it’s fair that there’s at least an argument, and see if
you considered this, that while he may have had some
intoxication level, he clearly spiked that intoxication level
after he realized the victim died. Is that fair or not fair?

A.

Well, that was going to be the government’s argument
if we raised intoxication. They were going to hint he wasn’t
as drunk as defense would argue he was until after the
offense, but that wasn’t a very credible argument for your
side frankly.

Q.

Okay. But it was at least something that you knew
would have been presented based on some of the
information and the descriptions that Mr. Velarde had
provided.

A.

It occurred to us.

25

Q.

A.

But it was more his description and his written
statement that led you to believe that he was able to
describe this and have a good memory of the event.
Unfortunately, yes, that’s correct.

Id. 53-56.
Therefore, in light of the evidence presented in the state court proceedings, the
CCA’s determination was reasonable. Plea counsel testified that he talked with
Applicant regarding the defense and told him intoxication is not a defense to a knowing
crime and answered Applicant’s questions. Plea counsel also testified that even if an
intoxication defense was allowed the facts did not support the defense, because
Applicant’s description of what happened the night the victim died was too detailed to
support a defense that due to being intoxicated Applicant did not know what he was
doing. Applicant also concedes under cross examination that his plea attorney did
discuss with him that under Colorado law that the use of alcohol is not a defense to a
knowing crime. Aug. 10, 2007 Withdrawal of Plea Hr’g, at 26.
The factual findings relied on by the trial court are presumed correct in this
federal habeas proceeding and are supported by the state court record. Because
Applicant does not point to any clear and convincing evidence to the contrary, see 28
U.S.C. § 2254(e)(1); Cullen, 131 S. Ct. at 1403, the Court finds that Applicant has not
demonstrated a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.
Based on the above findings, the CCA decision regarding Applicant’s voluntary
intoxication claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
26

Supreme Court of the United States and did not result in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. This claim, therefore, lacks merit and will be dismissed.
B. Claims One, Three, and Four-Procedural Default/Martinez
In the Order for Answer, the Court refrained from addressing Claims One through
Three based on the following.
In Martinez v. Ryan, --- U.S. ---, 132 S.Ct. 1309 (2012), the Supreme
Court held:
Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review
collateral proceeding, a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
Id. at 1320. The petitioner must also show that the underlying ineffective
assistance of counsel claim is “substantial”— i.e., has “some merit.” Id. at
1318. The holding in Martinez recognizes an exception to Coleman v.
Thompson, 501 U.S. 722, 753–55 (1991). In Coleman, the Supreme
Court’s stated that being there is no constitutional right to counsel in a
state collateral proceeding, an attorney’s errors in the proceeding do not
establish cause for a federal habeas petitioner’s procedural default. See
Martinez, 132 S. Ct. at 1315.
Martinez applies only when “the State [bars] the defendant from
raising the claims on direct appeal,” so that postconviction proceedings
are an applicant’s first opportunity to present an ineffective assistance of
trial counsel claim. Martinez, 132 S. Ct. at 1320; see also Trevino v.
Thaler, --- U.S. ---, 133 S. Ct. 1911, 1915 (2013) (extending Martinez to
circumstances in which state law does not require claims of ineffective
assistance of trial counsel to be brought in collateral proceedings, but
“make[s] it virtually impossible for an ineffective assistance claim to be
presented on direct review” (quotation omitted)).
The Colorado Supreme Court “has expressed a preference for
having ineffective assistance of counsel claims brought in Crim. P. 35(c)
proceedings.” People v. Thomas, 867 P.2d 880, 886 (Colo. 1994)
(internal citations omitted); Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003)
27

(“In light of the considerations potentially involved in determining
ineffective assistance, defendants have regularly been discouraged from
attempting to litigate their counsels’ effectiveness on direct appeal.”)).
“Review of a claim of ineffective assistance of trial counsel that is raised
on direct appeal is limited to the existing record.” Downey v. People, 25
P.3d 1200, 1202 n.3 (Colo. 2001) (citing People v. Blehm, 983 P.2d 779,
792-93 (Colo. 1999); see also People v. Apodaca, 998 P.2d 25, 29 (Colo.
App.1999) (citing Thomas); People v. Price, 240 P.3d 557, 565 (Colo.
App. 2010) (“Only ‘in rare instances’ are ineffective assistance of counsel
claims presented so that they ‘need no further [factual] development prior
to review on direct appeal.’ ”) (quoting People v. Kelling, 151 P.3d 650,
655 (Colo. App. 2006)).
Respondents argue that Martinez does not apply to Claims Three
and Four because the procedurally defaulted ineffective assistance claims
are insubstantial. ECF No. 9 at 22-31; ECF No. 19 at 10-14.
Respondents fail to address Martinez as it may relate to Claim One, even
though Applicant asserts this claim was defaulted due to ineffective
assistance of counsel in his initial postconviction review.
The Court is reluctant to determine at this time, without the benefit
of the state court record of Applicant’s criminal proceeding, whether the
procedurally defaulted ineffective assistance issues raised in Claims One,
Three, and Four are substantial.
Order for Answer, ECF No. 23 at 7-9.
Having received and reviewed the state court record, the Court will address
Claims One, Three, and Four below pursuant to Martinez.
i. Claim One
In Claim One, Applicant asserts that his plea was unknowing and involuntary
because plea counsel (1) told him that if he did not take the plea he would have to
represent himself; and (2) failed to investigate that his wife died of a heart attack and
not due to any alleged sexual assault. Am. Application, ECF No. 16, at 5. Applicant
further asserts this claim was exhausted on direct appeal. Id. Applicant also asserts in
the Traverse to Respondents’ Answer, ECF No. 29, plea counsel informed him that if he

28

went to trial he would have to pay counsel more money and based on counsel’s
statement he felt pressured to take the deal offered or otherwise he would be
unrepresented because his family could not afford the additional fees. ECF No. 29 at
10. Applicant further asserts that plea counsel’s assessment that he would never be
paroled is incorrect, especially given the facts of Applicant’s case and counsel’s
testimony that there are viable defenses to the charges Applicant was facing. Id.
Respondents contend that Claim One is procedurally barred from review
pursuant to Rule 35(c)(3)(VII) because Applicant could have presented the claim in his
July 2010 Rule 35(C) motion. Supp. Pre-Answer Resp., ECF No. 19, at 5-6. In his
Reply to the Pre-Answer Response, Applicant contends that he is not barred from
raising a second postconviction motion subsequent to the reinstatement of his direct
appeal. Supp. Reply, ECF No. 20, at 2.
Applicant may be correct that a postconviction motion may be allowed
subsequent to Applicant’s direct appeal for constitutional deprivations that may have
resulted in his direct appeal, but Applicant’s claims do not address deprivations that
were a result of his appeal. Applicant was granted the right to appeal the denial of his
motion to withdraw his guilty plea, which he did along with the denial of his Rule 35(c)
postconviction motion. See Velarde, No. 12CA2183, at 4. In his appeal he asserts the
trial court’s abused its discretion in denying his motion to withdraw his guilty plea. This
Court has found that the CCA’s opinion addresses only Applicant’s coercion claim in
support of his abuse of discretion claim by the trial court. Claim One in this action
pertains to plea counsel’s ineffectiveness, which were known by Applicant and subject
to review at the time he filed the July 10 Rule 35(c) postconviction motion. A review of
29

the Flat File in Case No. 06CR236 reveals that neither Applicant, nor postconviction
counsel on Applicant’s behalf, raised an ineffective assistance of plea counsel claim
based on coercion in the postconviction motion. Flat File, Case No. 06CR236, at 143151 and 177-183. This claim, therefore, has not been presented in state court and now
is barred pursuant to Rule 35(c)(3)(VII).
As for finding a Martinez exception that would allow a procedural default to be
waived, Applicant first must have either been unrepresented in his postconviction or
subject to ineffective assistance of counsel. Applicant originally submitted pro se a Rule
35(c) postconviction motion that addresses ineffective assistance of plea counsel for
failure to (1) conduct interviews with the forensic specialist who conducted the autopsy,
police detectives, and deputy district attorneys; and (2) view the crime scene, other
evidence, and proposed exhibits. See Flat File, July 8, 2010 Rule 35(c) Mot. (pro se), at
143-52, The pro se motion was denied in part by the district court. See id., Sept. 27,
2010 Ord., at 159-65. Postconviction Counsel then submitted an amended Rule 35(c)
motion that included specifically the irregular heartbeat and voluntary intoxication
claims. See id., April 27, 2011 Rule 35(c) Mot. (counseled), at 177-84. Neither
pleading included a involuntary and unintelligent plea claim based on coercion by plea
counsel.
Nonetheless, even if Applicant was unrepresented or subject to ineffective
postconviction counsel, as required to find a Martinez exception, neither of the claims
supporting the ineffective assistance of counsel claim in Claim One are substantial for
the following reasons.

30

When a habeas applicant challenges a guilty plea based upon ineffective
assistance of counsel, the deficient performance prong of the Strickland test requires
proof of a lack of reasonably competent advice concerning the plea. Hill v. Lockhart,
474 U.S. 52, 58-59 (1985). An applicant must satisfy the prejudice inquiry by showing
that the constitutionally ineffective performance “affected the outcome of the plea
process. In other words . . . that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Id.
Conclusory allegations without supporting factual averments are insufficient to support a
claim of ineffective assistance of counsel. United States v. Fisher, 38 F.3d 1144, 1147
(10th Cir. 1994).
This Court has addressed Applicant’s irregular heartbeat claim above and found
plea counsel neither was ineffective nor was Applicant prejudiced by counsel not
pursuing an investigation of this issue. As for the coercion claim, which Applicant has
couched in the Amended Application, ECF No. 16 at 5, as being told he would have to
represent himself if he did not enter into a plea, and in the Traverse, ECF No. 29 at 10,
that plea counsel would not proceed to trial unless Applicant paid more money, the
Court has reviewed the transcript of the withdrawal of plea hearing during which plea
counsel and Applicant testified regarding their plea discussions. Plea counsel, on cross
examination, testified as follows:
Q.

There’s been testimony that there was an agreement
for a retainer of $80,000; would you agree with that?

A.

No, it was 70.

Q.

All right.

31

A.

Q.
A.

Q.

Now, hang on a second. Let me clarify. I’m speaking
from memory, but I think it was 70 plus probably some
money for investigation, other expenses, maybe that totaled
80.
Okay.
So I don’t mean to quibble, but I just want to be as
accurate as I can.
Sure. Was that initial retainer fee paid?

A.

In stages. The Velarde family and I agree they would
pay it over a period of months, and they met every deadline.
They were very conscientious.

Q.

Okay. And as to the payment of that retainer fee and
the structure of the contract, did that payment of the fee
guarantee that you would do all litigation necessary to
conclude the case, including a jury trial?

A.
Q.

A.
Q.

I think so, yes.
All right. At the end of time with -- when this case
came to a conclusion prior to a jury trial, had the funds run
out?
No.
Did you ever tell Mr. Velarde, the funds have run out.
If you want a trial, you got to pay me some more money?

A.

Yes and no.

Q.

Okay.

A.

Q.

Again, I’m sorry to sound difficult, but here’s what I
remember, without having to go back and checking my
billing records today: I believe what happened -- well, first of
all, the fee agreement was staged. If we didn’t do certain
things, we didn’t get to transfer money from our trust account
to the operating account.
Certainly.

32

A.

Q.
A.

And you may or may not know that the way this works
is when money is paid to us, we place it in trust until we earn
it, and the fee agreement laid this out. So there were two
things happening in parallel: The family would send us
money at certainly [sic] deadlines, which I greatly
appreciated; and then we would transfer money from trust to
our operating account once we met certain milestones in the
litigation. And all of this was set forth in the fee agreement.
Certainly.
I think what happened -- well, I know the fee
agreement contained a large amount of money to be paid if,
and only if, we were going to trial.

Q.

And that would be -- is that within the $70,000 –

A.

Yes, it’s within it.

Q.

-- or was that over and above it?

A.

No, it was within it. So I think we -- we may have
reached the point where they already paid the full 70,000
and the money was in trust, or they still owed us one more
stage, I forget. But unless we tried the case, we weren’t
owed-- we weren’t allowed to move that last amount of
money from the operating -- from the trust account to the
operating account.
So to answer your question, what may have
happened here is they paid the full amount, but when he
entered a plea, we refunded the trial fee, took it out of trust,
wrote a check back to Mr. Velarde, Sr., because -- because
the money wasn’t earned and the case was done and -- and
there was no trial. We still had the sentencing to go, but in
this case the sentencing was stipulated. I think at that point I
might have given them back the money.
Or what might have happened is that they hadn’t yet
got to the point where they were supposed to pay us that last
amount and I told them don’t, because we’re not going to
trial. So one way or another it -- that’s how that played out.

Q.

Let’s assume -- the last scenario, that there was still a
payment left, that would be that trial fee essentially. During
33

the discussions with Mr. Velarde, when you’re discussing
about whether there’s going to be a plea or not or whether
he’s going to go to trial, would you have informed him that, If
we go to trial, the rest of the fee is due, but if we don’t go to
trial the rest of the fee is not due?
A.

Sure. And that was, of course, set forth in the written
agreement that he signed long ago anyway. But if you’re
asking would it have cost him more money to go to trial, in
the most naked sense, yes; but there was never a problem
with getting money from the family, and in fact, we may have
already had the money in our trust account when we were
having those discussions.

Q.

Did you ever sort of use that as a threat against Mr.
Velarde, You know what? If you want to go to trial, you got to
pony up 50 grand or I’m leaving?

A.

It was never a threat. It was at most, If we go to trial,
we’ll need the additional money; and if it was already in our
trust account, then it’s a non-issue, which I think it -- it was.
That’s my best recollection.

Q.

All right.

A.

And it may have been phrased the opposite, If we
don’t go to trial, we’ll be refunding money to your father;
because that’s our agreement, if there’s no trial, he doesn’t
have to pay for a trial.

Q.

As to threats or coercion, aside from simply advising
him of what could happen, what your opinions were, what
you thought should happen, what you thought he should do,
did you ever make any threats or co -- coerce him in any
way in this case?

....

A.

No.

Aug. 10, 2007 Withdrawal of Plea Hr’g, at 60-65 and 71. Applicant testified as follows
at the same hearing during cross, redirect, and recross examination.
(cross)

34

A.

I was under a lot of pressure at that time. I didn’t
want to sign it. My lawyer was -- threatening me -- well, not
threatening me, but he was saying that, Remember, 48
years, 48 years. You’re going to get 48 years, and I -signed this under a great deal of pressure.

Q.

And you said that your lawyer put a great deal of
pressure on you. What -- was the pressure your lawyer put
on you?

A.

I think I just stated that, that he -- he told me that -that -- I told him that I wasn’t in my right state of mind when - these things happened and I was under the influence of
alcohol, and he -- he stated to me that, Remember, Wrighty,
we can’t use alcohol as a defense.

Q.

Let me slow you down there. So your lawyer
discussed with you the fact that in Colorado law, alcohol is
not a -- the use of alcohol is not a defense to a knowing
crime?

A.

Yes, that’s -- that’s what he told me. He says, This
judge is a tough judge. He’s going to give you 48 years.

Q.

Okay. So you were aware of the sentencing range for
second degree murder that went up to 48 years?

....

A.
Q.

A.
Q.

A.
Q.
A.

Correct.
Did your lawyer discuss with you the possibility that
you could be convicted of first degree murder, or felony
murder as it's sometimes called?
Yes.
Did he discuss with you the possibility of a life
sentence without parole if you were to be convicted of that?
Yes. Yes.
Did he tell you there was a possibility the jury could
convict you of that?
Yes.

35

Q.

A.
Q.

A.

Did he also talk with you about the possible penalties
for the sexual assault counts being indeterminate, or to life
penalties?
Yes.
That if you were to be convicted of either of the sexual
assault counts, you could be incarcerated for up to your
natural life?
Yes.

Q.

And did he then encourage you that the offer that was
made to you, the 33-year stipulation, was a good deal?

A.

I don’t know if he said it was a good deal, but he told
me that I -- I -- he told me that -- I looked at him -- I
remember telling him, I don’t know if I’ll live that long, and
then he told me, I think you’ll live that long, and I told him, I
don’t think so, and -- and he said, You will. And like I said, I
signed it under a great deal of pressure.
And -- and I rethought it, and if they do find me guilty
and they take me -- they take me all the way and they -- they
put an indeterminate life sentence on me and I lose, I will
lose by telling the truth. I will lose by telling the truth before
my Lord, Jesus Christ, that I believe that she did pass from a
heart attack and losing a lot of blood while we were involved
in intercourse.
And if -- if the Court convicts me on this, and to that
measure, so be it, because I did not murder my wife, I didn’t
plan it, and it was -- it was an accident. And that’s the
reason why I want to take back my plea. And if -- if they put
me in for 48 years, that’s the rest of my life. I’m already 42
years old, and I think I deserve –

....
Q.

Sir, would you agree with me that Mr. Cherner told
you that the decision whether to go to trial or not was your
decision, but he strenuously told you he thought that was a
bad idea to go to trial?

A.

Yes, he kept threatening me with 48 years; We’re
gonna lose. We’re gonna lose.
36

Q.

A.

Okay. And when you say “threatening,” I want to
make sure I understand what you mean. What he told you
was it was his opinion that you would lose at trial and that
you would receive at least 48 years in prison?
Yes.

Q.

Were there any other threats besides that, that -- him
telling you what he thought would happen?

A.

No, just -- just that -- that threat of -- of 48 years and
no life -- no -- I would not see daylight again. I wouldn’t -and --

Q.

I just want to make sure that one point is crystal clear.
You’ve used the word “threat” with regard to your lawyer,
and then you said that what he would say is, We’re going to
lose, and if we lose, these are going to be the
consequences. Were there any other threats or coercion
that your lawyer made against you?

A.

The only thing he was threatening me was -- was the
point, Remember, 48 years. Remember? Remember, 48
years. You can’t -- there’s no defense in the state for
alcoholism.

....

I said, Yeah, but I did not -- I did not know when you
do this. And it states in the -- in the -- on -- it doesn’t state
right here on this one, but the one that I -- that -- I remember
the plea agreement that I signed was -- was that you
knowingly and you did voluntarily murder your wife, and I
said, no, I didn’t do it. And he says, Remember, 48 years,
48 years. And I didn’t want to. I had a hard time. We stood
there for 10, 15 minutes before I signed it.
Q.

Okay. Did your lawyer ever threaten -- tell you what
would -- that you would be abused in prison, tell you that you
would die, anything like that, be killed in prison?

A.

No, he didn’t do that.

Q.

Did he ever threaten you physically in any way –

37

A.

No.

Q.

-- if you don’t do this, I’ll hit you, or do --

A.

No.

Q.

-- anything like that?

A.

No.

Q.

He simply advised you of what he thought would
happen and that that would be a more severe sanction than
what you received under the current plea arrangement?

A.

That’s -- that’s -- he kept threatening me with the 48
years.

. . . . (redirect)
Q.

Very large amount of money. You remember that the
retainer agreement had no coverage, no phase mentioned
for going to trial?

A.

No, it did not. I don’t –

Q.

Everything stopped if you went to trial?
Yes. I’m not even sure of the -- too much of the
financial. I was -- I was not -- there was some
communication there that was not fully -- that was not fully
divulged to me.

Q.

A.
Q.

A.
Q.

And do you remember it being a distinct part of this
scenario that if you did not accept this deal, you would lose
your lawyer? He would not go to trial?
One more time, please?
Do you remember that if you did not accept this plea
agreement, that you would lose your lawyer?
Yes.
Because he would not go to trial?

38

A.

Yes, I would lose -- I would lose -- I would lose the
lawyer. I believe that he said he would go all the way to the
end, but money has been exhausted, or something to that
effect.

Q.

And he was ready to quit?

A.

Yes.

Q.

Unless you took this deal?

A.

Q.

Yes. Yes. He -- he said that the money was
exhausted, and that seemed to me like he was -- that that’s
as far as he would go, was go to motions -- or go
to -- he -- he stated that there was no more money, that I
had -Okay.

A.

-- I had no more money. I sold everything to get this
lawyer. I sold my cows. I sold everything I had to get this
lawyer. I am officially broke. I -- I don’t have -- I believe that I
don’t -- I -- I sold everything that I had.

Q.

And when you said he threatened you, although
he didn’t threaten you in any illegal way, isn’t it true
that he made it known that he would not any longer
represent you?

A.
Q.

Yes.
Did that have an impact on you and your
decision-making here?

A.

Yes.

Q.

Did that influence you?

A.

Yes.

Q.

How did it influence you?

A.

Well, it -- it made me mad because -- but that he -- I
had gave him so much money and -- and he couldn’t -- he
couldn’t -- he couldn’t -- I paid him a lot of money and -- and
39

it made me mad that he couldn’t represent me without -- he
wanted more money or something like that and I was -- I was
-- I was mad at him.
Q.

You remember how much you paid him?

A.

I -- 80 grand, 88 grand.

Q.

No further questions, Judge -- $80,000?

A.

$80,000.

. . . . (recross)
Q.

In your words, you said that Mr. Cherner said he
would represent you all the way, or to the end, but you just
hadn’t paid the trial fee yet?

A.

I believe he said he would -- it’s going to take more to
go to trial is what he said.

Q.

And that was part of the agreement you had with him
earlier was that --

A.
Q.

No.
-- the further you went --

A.

No.

Q.

-- the more money it would cost?

A.

No, huh-uh. No. There was a fixed fee. There was a
fixed fee of 80 grand to take it all the way to trial.

Aug. 10, 2011 Withdrawal of Plea Hr’g, at 25-33 and 37-40.
Applicant based his coercion on plea counsel’s continual reminder to Applicant
that he could face forty-eight years if he went to trial. Applicant does not argue that plea
counsel threatened him in any other way. Applicant’s testimony only supports a finding
that plea counsel was strongly urging him to plead guilty, which is “proper conduct of an

40

attorney if he believes that a plea is the best course.” See Nicholls v. Bigelow, 558 F.
App’x 778, 786 (10th Cir. 2014) (citing Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir.
1995).
Furthermore, when Applicant was questioned about the retainer fee on redirect,
he stated plea counsel told him that if he insisted on going to trial he would need more
money, he, however, also testified that he did not know details of the financial
arrangements of the retainer for plea counsel. Furthermore, Applicant’s father testified
at the withdrawal of plea hearing that Applicant was not well informed about the details
of the retainer and the $80,000 was the amount to be paid to plea counsel for all
proceedings including a trial. Aug. 10, 2011 Withdrawal of Plea Hr’g, at 43-44. Plea
counsel provided a sound description of the fee arrangement and nothing in Applicant’s
or his fathers’ testimony demonstrates that plea counsel was requesting more money
than the $70,000 or $80,000 that was originally agreed to for covering all proceedings
including trial, which is the basis of Applicant’s coercion claim.
Moreover, even Applicant’s statement that plea counsel threatened to withdraw
from the case if Applicant did not accept the plea agreement is insufficient to
demonstrate coercion and falls under an attempted persuasion by plea counsel that
entering into a plea is in Applicant’s best interest. See Miles, 61 F.3d at 1470 (citing
Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (attorney’s threat to withdraw
from case if client did not accept plea bargain was insufficient to establish that plea was
involuntary)). The Court finds no basis for a coercion claim against plea counsel.
Finally, the Tenth Circuit has noted that the “colloquy between a judge and a
defendant before accepting a guilty plea is not pro forma and without legal significance.
41

Rather, it is an important safeguard that protects defendants from incompetent counsel
or misunderstandings.” Fields v. Gibson, 277 F.3d 1203, 1214 (10th Cir. 2002).
Further, “[n]umerous courts have denied relief under §§ 2254 and 2255 to petitioners
alleging that their guilty pleas were the product of ineffective assistance, where the plea
colloquies have demonstrated otherwise.” Hammons v. Paskiewicz, 368 F. App’x. 904,
907 (10th Cir. 2010) (citing Fields, 277 F.3d at 1214).
The colloquy between the district court and Applicant in part is as follows:
THE COURT: Mr. Velarde, by entering a plea in this case, you’ll be
waiving or giving up certain rights. Those rights include the right to a jury
trial, the right to call witnesses on you own behalf, the right to confront or
cross-examine witnesses, and the right to require the People to prove
each and every element of the charges against you beyond a reasonable
doubt. Once you enter a plea, those rights are gone forever. Do you
understand that?
THE DEFENDANT: Yes.
....
THE COURT: Finally, there are potential punishments that may be
imposed upon you in this case. They are contained in writing in the
Request to Plead Guilty form. I want to make certain you understand
them at this point.
For the charge of Murder in the Second Degree, you could receive
a sentence in the presumptive range of 8 to 24 years in the Department of
Corrections. If mitigation is established, that sentence could be reduced
to four years; if aggravation is established, that sentence could be
increased to 48 years.
Mr. Cherner, it appears to the Court from the nature of the
disposition that there is an agreement, in fact, that aggravation does exist?
That would, I assume, be based upon the death?
MR. CHERNER: Your Honor, there is only one sentence for
second degree murder in this state, it’s 16 to 48, absent a stipulation, of
course. But there -- the terms “presumptive” and “extraordinary range”

42

don’t apply because it’s a crime of violence and it’s automatically 16 to 48
under any circumstance.
THE COURT: Well, I guess what I was getting at is that your -- my
understanding is that there’s not going to be any requirement, this being in
the aggravated range, there be some additional determination by a finder
of fact other than the Court?
MR. CHERNER: There’s a nolo position, Your Honor.
THE COURT: All right. Thank you.
....
For added Count Seven, the charge of Criminal Attempt to Commit
Sexual Assault as a Class 5 Felony, you could receive a sentence in the
range of from 1 to 3 years in the Department of Corrections in the
presumptive range; that -- if mitigation were presented, that sentence
could be reduced to 6months; with -- if aggravation were presented or
established, that sentence could be increased to 6 years. In addition,
there would be a mandatory period of 2 years and a potential fine of from
1,000 to $100,000.
Mr. Cherner, my understanding is that there is an aggravated
sentence on this to run concurrent with the sentence on Count Six; is that
Correct?
MR. CHERNER: Yes, Your Honor.
THE COURT: Would there be -- and based upon the -- well, would
there be any requirement that this determination, as to aggravation, be
made a factfinder other than the Court?
MR. CHERNER: No.
THE COURT: All right. And I’m going to assume that based upon
the facts presented in this case, that would form the basis for the
aggravation her, Mr. Vahle?
MR. VAHLE: Judge, that’s correct. The crime of violence statute
lists any sexual crime under 18-3 Section 4 where death resulted. That
are the facts in this case and that is the information.
....

43

THE COURT: Mr. Velarde, did you understand all the punishments
-- the potential punishments that the Court has just read off?
THE DEFENDANT: Yes.
THE COURT: By pleading guilty, Mr. Velarde, you are admitting
the nature of the charge and that the People can prove this charge -these charges beyond a reasonable doubt. I want you to listen carefully
now while Mr. Vahle explains the elements of the offenses to which you’ll
be pleading. Mr. Vahle?
MR. VAHLE: Thank you, Your Honor.
Mr. Velarde, you have a right to go to trial on these matters. If you
were to go to trial on these matters, the People would have to prove each
and every element of any count to which you are charged to a unanimous
jury of 12 people. We would have to prove each and every element
beyond a reasonable doubt. As to added Count Six and Count Seven, I
want to explain the elements of each of those counts to you.
As to added Count Six, what we would have to prove is that on or
about March 29th of the year 2006, you, Wrighty Wilkins Velarde; were in
the county of Douglas and the State of Colorado. I would have to show
that you acted unlawfully and feloniously and knowingly. All three of those
terms were defined to you, sir, in the written document that you filled out
this morning. Did you want me to redefine either of those three terms for
you?
THE DEFENDANT: No.
MR. VAHLE: What I would have to show is at that time that you
caused the death of Marci Notsinneh in violation of 18-3-103 Subsection
1. When I say that you caused her death, “caused” is a legal definition. It
means the act or a failure to act which in natural and probable sequence
produced the claimed injury, death in this case. It is a cause without
which the claimed injury would not have occurred.
Sir, do you have any questions about what it means to plead guilty
to People’s added Count Six, Murder in the Second Degree?
THE DEFENDANT: No.
MR. VAHLE: As to Count Seven, what I would have to prove is at
or about the same date and time; once again, you, Wrighty Velarde; acted
unlawfully and knowingly and feloniously. I’d have to show that you
44

attempted to inflict sexual intrusion or sexual penetration on Marci
Notsinneh, and I would have to show that you knew that the victim was
incapable of appraising the nature of her conduct at that time.
I want to talk about a couple of definitions within that statutory
definition. A person commits criminal attempt if acting with the kind of
culpability otherwise required for the commission of the offense, in this
case that is knowingly, as has been defined for you, he engages in
conduct constituting a substantial step toward the commission of the
offense.
A “substantial step” is any conduct, whether act or omission or
possession, which is strongly corroborative of the firmness of the actor’s
purpose to complete the commission of the offense. Factual or legal
impossibility of committing the offense is not a defense if the offense could
have been committed had the attendant circumstances been as the actor
believed them to be. Nor is it a defense that the crime of attempt was -the crime attempted was actually perpetrated by the accused.
When I talk about “sexual intrusion” and “sexual penetration,” those
terms also have statutory definitions particularly germane to this case.
“Sexual intrusion” means any intrusion, however, slight, by any
object or any part of a person’s body, except the mouth or tongue or
penis, into the genital or anal opening of another person’s body if that
sexual intrusion can reasonably be construed as being for the purpose of
sexual arousal, gratification, or abuse.
“Sexual penetration” means sexual intercourse, cunnilingus, fellatio,
anilingus, or anal intercourse. The admission need not be proved as an
element of any sexual penetration. Any penetration, however, slight, is
sufficient to complete the crime.
Sir, all of those things put together are in violation of 18-3-402
Subparagraph (1)(b) and 18-2-101 of the Colorado Revised Statutes,
Criminal Attempt to Commit Sexual Assault. Do you have any questions
about what it means to plead guilty to that added count?
THE DEFENDANT: No.
MR. VAHLE: Thank you, Judge.
THE COURT: Mr. Velarde, did you understand the elements as
explained by Mr. Vahle?

45

THE DEFENDANT: Yes.
THE COURT: Mr. Cherner, I have conducted the preliminary
hearing in this matter. I’ve also reviewed the affidavits in the court file.
Would there be the requirement of any additional factual basis?
MR. CHERNER: No, we agree that’s the factual basis, Your Honor.
THE COURT: All right. Mr. Velarde, then, how do you plead to
added Count Six, the charge of Murder in the Second Degree?
THE DEFENDANT: Guilty.
THE COURT: And how do you plead to added Count Seven, the
charge of Attempted Sexual Assault as a Class 5 felony?
THE DEFENDANT: Guilty.
THE COURT: Are these pleas being made by you freely and
voluntarily?
THE DEFENDANT: Yes.
THE COURT: By that I mean has anyone threatened you,
pressured you, or coerced you in some way to enter these pleas against
your will?
THE DEFENDANT: No.
THE COURT: Have there been any promises made to you, other
than what I’ve been told today here in open court, in order for you to enter
these pleas?
THE DEFENDANT: No.
THE COURT: Are you satisfied with the representations of Mr.
Cherner and Ms. Pagett?
THE DEFENDANT: Yes.
THE COURT: Do you wish the Court to accept your pleas?
THE DEFENDANT: Yes.
THE COURT: Very well. The Court will find the defendant is
competent to proceed; that he understands the nature of the charges in
46

this case and the consequences of entering pleas; that he understands
that he’ll be waiving or giving up certain rights; that he understands the
Court is not bound by any representations; the plea is being made today
knowingly, intelligently, freely and voluntarily; a factual basis does exist;
and the defendant is represented by competent and effective counsel.
Mar. 16, 2007 Providency Hr’g at 8-17.
Based on the above findings, neither Applicant’s coercion claim nor his irregular
heartbeat claim is substantial. Without such a finding, the Court need not determine
whether the postconviction review proceeding was sufficient or review the merits of
Claim One. Martinez, 132 S. Ct. at 1318. Claim One is procedurally defaulted and,
therefore, barred from federal habeas review.
ii Claim Three
In Claim Three, Applicant asserts that plea counsel was ineffective in not
advising him of the automatic sentence enhancer and incorrectly advising him that he
would be parole eligible in ten to twelve years, instead of having to serve three quarters
of his sentence. ECF No. 16 at 6 and ECF No. 29 at 6-7. In the Traverse, Applicant
adds that plea counsel had an obligation to investigate how much time Applicant would
have to serve before becoming parole eligible in order to provide him with the correct
advice so he could make a decision as to whether to go to trial or enter a plea. ECF No.
29 at 7. Applicant also asserts in the Traverse, ECF No. 29 at 10, in support of Claim
One that plea counsel incorrectly advised him that if he went to trial he would be subject
to a life sentence without a possibility of parole, even though the facts of his case would
support a viable defense.

47

Respondents argue that even if plea counsel misadvised Applicant on his parole
eligibility date he is unable to show prejudice under Strickland in light of the case record.
ECF No. 25 at 33.
Applicant concedes this claim is defaulted. See ECF No. 16 at 6, and relies on
Martinez for the basis of cause for procedural default.
Applicant’s assertions in support of Claim Three, however, are highly
speculative. He bases his arguments on his belief that plea counsel does not state he
had represented inmates who were convicted under the Colorado indeterminate
sentencing act “or that [counsel] has been there when [inmates] are paroled.” ECF No.
29 at 10. He further contends that the facts in his case, that he had no prior criminal
history, the victim was his wife, and it was common for them to have anal sex, would
have more likely than not resulted in his being paroled from a sentence subject to the
indeterminate sentencing act. Id.
Applicant does not state credible assertions that would support his speculative
claims regarding a viable defense and plea counsel’s misadvice on Applicant’s parole
eligibility date. During the withdrawal of plea hearing, plea counsel testified as follows:
Q.

A.
Q.

A.
Q.

Did you have discussions with him about the elements
of the crimes with which he was charged?
Yes.
Tell him what would need to be proved at trial in order
to find him guilty of those -- of those crimes?
Yes.
Discuss with him how the evidence in the case, the
facts of the case, would relate to those elements?

48

A.
Q.

A.

Yes.
Did you discuss with him the possible penalties that
could be imposed for all of those charges?
Yes.

Q.

The possibility of a life sentence if he were found
guilty of first degree murder?

A.

If he was found guilty, it wasn’t a possibility, it was
required.

Q.

A certainty?

A.

Yes, that was communicated to him.

Q.

Secondarily, even if you won on the murder count, did
you discuss with him the possibility that if he were convicted
of a sexual assault count, that he could receive an
indeterminate prison sentence which could result in a
sentence of up to life in prison?

A.

It would result in a life sentence with the possibility of
parole. There was nothing hypothetical about the result.
The only hypothetical was when he would be released. But
the sentence is life.

Aug. 10, 2007 Withdrawal of Plea Hr’g at 67-68.
Applicant does not deny that he was charged with first degree murder and sexual
assault. He also does not deny that the sentence for first degree murder is life in prison
and for sexual assault a possibility of an indeterminate prison sentence up to life in
prison. Faced with a life sentence if convicted of murder or an indeterminate sentence if
convicted of sexual assault with the possibility of parole it is highly unlikely that
Applicant would have opted to go to trial even if he had known that his parole eligibility
would be from ten to fifteen years more than what plea counsel allegedly told him it
would be.
49

Furthermore, even though “gross misadvice about parole eligibility can render
legal assistance ineffective and invalidate a plea,” see Chrisman v. Mullins, 213 F. App’x
683, 688 (10th Cir. 2007) (finding an 85% requirement of sentence served before parole
eligible) (citing Beavers v. Saffle, 216 F.3d 918, 925 (10th Cir.2000)); see also Hill, 474
U.S. at 56-57, the Sixth Amendment does not encompass those aspects of the
prosecution which are collateral, see Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir.
1992) (holding that counsel’s failure to advise alien client that deportation was a
possible collateral consequence of guilty plea did not amount to ineffective assistance of
counsel). Restrictions on parole eligibility involve “collateral” consequences of a nolo
contendere plea. See Holmes v. United States, 876 F.2d 1545, 1549 (11th Cir. 1989);
see also Hill, 731 F.2d at 570) (“[t]he details of parole eligibility are considered collateral
rather than direct consequences of a plea”) (citations omitted). Any failure to inform
Applicant of consequences collateral to a plea, such as having to serve 75% of a
sentence before being parole eligible, does not render the plea involuntary, does not
implicate the Sixth Amendment, and, therefore, cannot be the grounds for a viable
ineffective-assistance-of-counsel claim. See Hill, 474 U.S. at 55 (failure to inform a
defendant at a plea hearing of the terms of parole eligibility is not a federal constitution
violation); see also Perkis v. Sirmons, 201 F. App’x. 648, 652 (10th Cir. 2006) (state
court’s failure to inform defendant that “he would be ineligible for parole prior to serving
85% of his sentence” was merely a failure to inform petitioner about a collateral
consequence of the plea and does not invalidate a plea agreement).
Based on the above findings, neither Applicant’s parole eligibility claim nor his
viable defense claim is substantial. Without such a finding, the Court need not
50

determine whether the postconviction review proceeding was sufficient or review the
merits of Claim Three. Martinez, 132 S. Ct. at 1318. Claim Three is procedurally
defaulted and, therefore, barred from federal habeas review.
iii. Claim Four
In Claim Four, Applicant asserts that counsel was ineffective because he failed to
seek suppression of the statements Applicant made to the police, even though counsel
knew that Applicant had requested counsel and the police continued to question him.
ECF No. at 16 at 7. Applicant does not address Claim Four in his Traverse.
Respondents argue that plea counsel filed two motions to suppress Applicant’s
police statements, ECF No. 25 at 36. Respondents further contend that plea counsel
postponed the hearing on these motions until after plea negotiations were finished in an
attempt to negotiate a better plea and that Applicant knew at the providency hearing
that the motions were pending, yet he expressly indicated he was satisfied with counsel
performance. Id. at 37.
Upon review of the Flat File, Case No. 06CR236, at 49 and 51, the Court finds a
motion to suppress statements made by Applicant at the El Paso County Jail and an
assertion of privilege regarding these statements was filed by counsel. Both motions
were filed on November 27, 2006, along with at least eight to ten other motions.
Subsequently, on December 15, 2013, the motions were continued at plea counsel’s
request, see ECF No. 9-1 at 21, and a request to plead guilty, Flat File at 96, entered on
March 16, 2007. At the Rule 35(c) hearing, plea counsel testified as follows:
Q.

Mr. Cherner, to the best of your recollection, would
you kind of just take us through the procedural history of
your representation of Mr. Velarde.
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A.

Sure. Like any criminal case, there’s a period where
you get familiar with the facts both through discovery and
through speaking with the client. We used an investigator.
We interviewed any number of witnesses.
We got ready for the preliminary hearing. I know I
interviewed the coroner. In fact, I [put the coroner on the
stand at the preliminary hearing. We did that hearing. We
had a theory advanced there about how the injuries were
inflicted. We were unsuccessful in getting bond set and
defeating the probable cause finding.
We continued at that point to investigate the case,
develop new information. When I say we, it was myself and
my associate, my staff, and investigator.
Frequent contact with Mr. Velarde. Met a number of
times with his family. Various issues came up along the
way. We researched them. We filed motions. There was
an extensive series of video interviews. I know I watched
those early in the process, made notes. I don’t recall if we
transcribed them or not.
Eventually -- well, we had a series of discussions
about a plea bargain. The district attorney switched on us. I
forgot his name, but he left the case and went into private
practice. Mr. Vahle took the case over. We met briefly with
Ms. Chambers who told us she didn’t know anything about
the case and she referred us to the other lawyers.
We did what we typically do when we defend a
serious felony which is there’s always the possibility of a
disposition, but at the same time you’re preparing for trial.
So you’re working on two tracks.
As we came up to motions, it seemed like a good time
to try to resolve the case because although it was going to
be an uphill battle to suppress his statements, we did have
at least some credible arguments, and the uncertainty as to
whether or not that would be successful, that is the
suppression of the statements, I think put us in a position
then to have the best discussion for a plea bargain.

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That uncertainty drives both sides. The threat of
litigating the motion I though was better than actually
litigating the motion. So we were able to reach a disposition
right before the motions.
The motions may have been continued once to let us
talk more. I’m not sure . . . .
Sept. 2, 2011 Rule 35(c) Hr’g at 12-14.
Contrary to Applicant’s argument, plea counsel did file motions to suppress
Applicant’s statements. It also is not clear, as Applicant suggests, that he was not
represented by counsel when he made the statements to the police. See Aug. 10, 2007
Withdrawal of Plea hr’g at 56-57. Finally, plea counsel’s decision to continue a hearing
on the suppression issue is no more than a strategy decision and has a presumption of
effectiveness. See Strickland, 466 U.S. at 689 (Applicant has burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances.); Rushin, 642 F.3d at 1307 (Applicant has burden to prove that the
errors were so serious that “counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment.”) (citations and internal quotations omitted).
Based on the above findings, Applicant’s suppression claim is not substantial.
Without such a finding, the Court need not determine whether the postconviction review
proceeding was sufficient or review the merits of Claim Four. Martinez, 132 S. Ct. at
1318. Claim Four is procedurally defaulted and, therefore, barred from federal habeas
review.
V. ORDERS
Based on the above findings, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
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U.S.C. § 2254, ECF No. 16, is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that the issuance of a Certificate of Appealability pursuant
to 28 U.S.C. § 2253(a) is denied. Applicant has not made a substantial showing of the
denial of a constitutional right such that reasonable jurists could disagree as to the
disposition of his petition pursuant to the standards of Slack v. McDaniel, 529 U.S. 473,
484 (2000). See 28 U.S.C. § 2253(c)(2). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
Order is not taken in good faith, and, therefore, in forma pauperis status is denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file
a motion to proceed in forma pauperis in the United States Court of Appeals for the
Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
DATED at Denver, Colorado, June 17, 2015.
BY THE COURT:

CHRISTINE M. ARGUELLO
United States District Judge

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