Quintana v. Trani et al

Filing 19

ORDER TO DISMISS IN PART AND TO ANSWER. By Judge Philip A. Brimmer on 11/04/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 15-cv-01569-PAB
ANGEL QUINTANA,
Applicant,
v.
TRAVIS TRANI and
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS IN PART AND TO ANSWER

Applicant, Angel Quintana, a state prisoner in the custody of the Colorado
Department of Corrections, is currently incarcerated at the Colorado State Penitentiary
in Cañon City, Colorado. Applicant initiated this action by filing pro se an Application for
a Writ of Habeas Corpus. He is serving sentences for judgments of conviction imposed
by the District Court for the City and County of Denver, Colorado in case 04CR2291.
On July 2, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents to
file a Pre-Answer Response addressing 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). Respondents submitted a Pre-Answer Response on August 17, 2015
[Docket No. 12]. Applicant filed a Reply on September 3, 2015 [Docket No. 13].
The Court must construe the Application liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not

“assume the role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For
the reasons stated below, the Court will dismiss the action in part and will order
Respondents to file an answer addressing the merits of the remaining claims.
I. RELEVANT FACTUAL AND PROCEDURAL HISTORY
On direct appeal, the Colorado Court of Appeals described the relevant factual
background for Mr. Quintana’s convictions as follows:
I. Background
After B.M. broke up with defendant at a local restaurant in Denver,
B.M. and her sister, S.P. (the victims), drove to a different restaurant where
they socialized with others in the restaurant’s parking lot. B.M. was talking
with T.S., a male friend of hers, in her car. T.S. was sitting in the driver’s
seat, and B.M. was crouched alongside him, “in the door jamb,” showing him
the televisions that were in the car. S.P. was in the passenger’s seat of the
car talking to another man. Shortly thereafter, B.M. saw defendant rapidly
approaching, “yelling, cursing,” and shooting at the car. Defendant shot
approximately four bullets, one of which hit the window of the car door. T.S.
jumped out of the car and ran away. As he was running away, defendant
fired a shot in his direction, but T.S. was not hit.
Defendant grabbed B.M., threw her into the driver’s seat, got into the
backseat of the car, and told her to drive. Evidence was conflicting whether
defendant ordered S.P. to get into the car or whether S.P. was already in the
car then. In any event, S.P., who was in the passenger’s seat, screamed at
defendant, asking him what he was doing, and in response, defendant hit her
in the mouth. B.M., having driven a few feet, put the car in park, and told
S.P. to get out of the car. When B.M. attempted to exit the car, defendant
shot her in the hip. B.M. tried to run, but she fell down because her leg was
numb from the gunshot wound. As S.P. came around the car to see if B.M.
was okay, defendant picked up B.M. and put her in the passenger’s seat of
the car. He then put S.P. in the backseat of the car.
Defendant drove the victims to a deserted field, put on gloves, and
said that he had to kill B.M., because she had “f***** up” and tried “to play
him,” meaning that she had “made him feel stupid.” However, defendant had
no more bullets. B.M. said she was sorry and asked him to take her to the
hospital. Defendant refused and instead took the victims to his mother’s
house where B.M. began “shaking really bad” and begged defendant to take
her to the hospital. Eventually, defendant agreed to take B.M. to the hospital
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with the understanding that she would tell the police that she was shot in a
drive-by shooting.
Initially, both victims told the police that B.M. had been shot in a
drive-by shooting. However, in a second interview with the police, B.M.
admitted that defendant shot her, but did not provide defendant’s last name.
Defendant was charged with one count of criminal attempt to commit
first degree murder against B.M., one count of first degree assault against
B.M., and two counts of second degree kidnaping with a deadly weapon (one
count against B.M. and one count against S.P.). After a trial, the jury found
defendant not guilty of attempt to commit first degree murder, but guilty of
the lesser included offense of criminal attempt to commit manslaughter. The
jury also found defendant guilty of the remaining charges. Defendant was
sentenced to a total of forty-eight years in the custody of the Department of
Corrections. This appeal followed.
Docket No. 12-3, pp. 2-4.
After unsuccessfully moving for a sentence reduction, Applicant filed a direct
appeal. Docket No. 12-2 (opening brief). On October 28, 2010, the Colorado Court of
Appeals affirmed. Docket No. 12-3 (People v. Quintana, No. 07CA1381 (Colo. Ct. App.
Oct. 28, 2010) (not published)) (Quintana I). On March 14, 2011, the Colorado
Supreme Court denied certiorari review. Docket No. 12-5.
On January 3, 2012, Mr. Quintana filed a post-conviction motion pursuant to
Rule 35 of the Colorado Rules of Criminal Procedure with the trial court. On August 17,
2012, the trial court denied the motion. On September 4, 2014, the Colorado Court of
Appeals affirmed, Docket No. 12-8 (People v. Quintana, No. 12CA1926 (Colo. Ct. App.
September 4, 2014) (not published)) (Quintana II). The Colorado Supreme Court
denied certiorari on April 20, 2015. Docket No. 12-10.
On July 23, 2015, Applicant filed his present Application under § 2254 in this
action raising the following claims:
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(1) speedy trial rights were violated;
(2) ineffective assistance of counsel:
(A) first trial counsel:
(i) failed to completely investigate all lines of defense;
(ii) deceived applicant into believing that counsel would present an
innocence-based defense and that prior counsel withdrew based
upon a witness conflict;
(iii) failed to share exculpatory information;
(iv) misinformed the trial court about his reasons for withdrawing;
and
(v) violated applicant’s federal constitutional speedy trial right;
(B) second trial counsel:
(i) failed to file a motion to dismiss based on violation of speedy
trial right;
(ii) failed to pursue exculpatory evidence such as witnesses;
(iii) failed to object to Applicant’s arrest as illegal when there was
evidence that he was not at the crime scene;
(iv) failed to investigate and present the defenses of actual
innocence, complete denial, and alibi;
(v) failed to prove that the evidence against applicant was not
overwhelming, applicant was not at the scene, and law
enforcement coached the witnesses;
(vi) “refused to confront personal knowledge of the prosecution’s
misconduct on record”;
(vii) failed to investigate the prosecution’s plan to turn trial counsel
against applicant by introducing threatening jail letters against
applicant;

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(viii) “took part in hiding and not disclosing on record the fact that
the prosecution presented him with a second coached letter of
threats a week before trial started”;
(ix) made a judicial admission of applicant’s guilt to the jury, which
infringed on applicant’s right to plead guilty and testify;
(x) prejudiced applicant’s appeal by “keep[ing] a lot of stuff of [sic]
the record”;
(xi) had a complete breakdown in communication;
(xii) violated the attorney-client privilege;
(xiii) failed to investigate law enforcement witnesses at the jail and
court house;
(xiv) failed to challenge the imposition of three illegal sentence
enhancers for a crime of violence, which were not determined by
the jury;
(xv) was not prepared for trial, failed to properly cross-examine
witnesses to discover the real reason for changing statements;
(xvi) threatened applicant by telling him of his plan to secure a
conviction;
(xvii) refused to argue that no evidence supported the kidnapping
charge;
(xviii) failed to investigate the contamination of the crime scene;
(xix) failed to challenge the inconsistent verdicts;
(xx) had numerous conflicts of interest;
(xxi) attempted to turn a favorable witness against applicant;
(xxii) failed to raise certain issues on direct appeal;
(xxiii) conflict of interest with the public defender’s office; and
(C) he was denied the right to post-conviction counsel;

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(3) applicant’s due process rights to plead guilty and testify were violated
because counsel imposed a guilt-based defense on Applicant instead of
presenting defenses of actual innocence and alibi;
(4) applicant’s right to due process was violated when the court enhanced his
sentence without the sentence enhancers being properly pled and proved;
(5) applicant’s right to due process was violated because his second degree
kidnapping conviction is not supported by sufficient evidence;
(6) applicant’s right to due process was violated because the guilty verdicts for
attempted manslaughter and first degree assault are inconsistent;
(7) applicant’s right to due process was violated because the trial court:
(A) refused applicant’s access to discovery and transcripts;
(B) denied applicant’s right to counsel;
(C) allowed the prosecution to question applicant’s attorneys; and
(D) was biased against Applicant.
Docket No. 1. For the reasons set forth below, the Amended Application will be
dismissed in part as some of the claims have been procedurally defaulted.
II. PROCEDURAL REQUIREMENTS FOR FEDERAL HABEAS CORPUS REVIEW
Before this Court can address the merits of Applicant’s claim, it is necessary to
examine whether this Application fulfills the applicable procedural requirements under
the federal habeas corpus statute.
A. Limitations Period
The first consideration in reviewing a federal habeas corpus petition is whether
the petition was timely filed under the one-year limitations period applicable to such
petitions. In this regard, the federal habeas corpus laws impose a one-year limitations

6

period applicable to state prisoners. See 28 U.S.C. § 2244(d) (as amended).
Respondents do not assert untimeliness in the present action.
B. Constitutional Claims
It is well known that a state prisoner may not be granted federal habeas corpus
relief unless he demonstrates that he is in custody in violation of the United States
Constitution or federal law. See 28 U.S.C. § 2254(a). See also Smith v. Phillips, 455
U.S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of constitutional dimension.”)
(internal citations omitted); Cupp v. Naughten, 414 U.S. 141, 146 (1973); Braley v.
Shillinger, 902 F.2d 20 (10th Cir. 1990). Mere violations of state law or procedural rules
cannot provide the basis for federal habeas relief absent a deprivation of constitutional
magnitude. Engle v. Isaac, 456 U.S. 107, 119 (1982).
C. Exhaustion Requirement
In addition, the provisions of the federal habeas corpus statute at 28 U.S.C.
§ 2254(b) require a state prisoner to exhaust available state court remedies before
seeking federal habeas corpus relief. To comply with the exhaustion requirement, a
state prisoner first must have “fairly presented” his constitutional and federal law issues
to the state courts through direct appeal, collateral review, state habeas proceedings,
mandamus proceedings, or other available procedures for judicial review in accordance
with the state’s procedural requirements. See, e.g., Castille v. Peoples, 489 U.S. 346,
351 (1989). To “fairly present” a claim, a petitioner must present a federal claim’s
factual and legal substance to the state courts in a manner that puts them on notice

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that a federal claim is being asserted. See Anderson v. Harless, 459 U.S. 4, 6 (1982)
(per curiam); Picard v. Connor, 404 U.S. 270, 277-78 (1971). Furthermore, the
“substance of a federal habeas corpus claim” must have been presented to the state
courts in order to satisfy the fair presentation requirement. Picard v. Connor, 404 U.S.
270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989).
Although fair presentation does not require a habeas corpus petitioner to cite “book and
verse on the federal constitution,” Picard, 404 U.S. at 278 (internal quotation marks
omitted), “[i]t is not enough that all the facts necessary to support the federal claim were
before the state courts or that a somewhat similar state-law claim was made.” Harless,
459 U.S. at 6 (internal citations omitted). A claim must be presented as a federal
constitutional claim in the state court proceedings in order to be exhausted. See
Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Nonetheless, even if a
state court fails to consider the constitutional claim, it is exhausted as long as the state
court had the opportunity to address it.
In addition, in order to exhaust his claims, a habeas corpus petitioner must
“properly present” his claims to the state courts. In this regard, a petitioner must invoke
“one complete round” of the applicable State’s appellate review process, thereby giving
the courts of that State “one full opportunity” to resolve any issues relevant to such
claims. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A state prisoner bringing a
federal habeas corpus action bears the burden of showing that he has exhausted all
available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).

8

However, “there is nothing in the exhaustion doctrine requiring federal courts to
ignore a state law or rule providing that a given procedure is not available.” See
O’Sullivan, 526 U.S. at 847-48. Therefore, if a state articulates that a certain avenue
for relief is not part of its standard appellate review process, it is not necessary for a
defendant to pursue that avenue in order to exhaust state remedies. See id.
The State of Colorado has articulated that review in the Colorado Supreme Court
is not part of the standard state appellate review process. More specifically, the
Colorado Appellate Rules provide that:
In all appeals from criminal convictions or postconviction relief matters
from or after July 1, 1974, a litigant shall not be required to petition for
rehearing and certiorari following an adverse decision of the Court of
Appeals in order to be deemed to have exhausted all available state
remedies respecting a claim of error. Rather, when a claim has been
presented to the Court of Appeals or Supreme Court, and relief has been
denied, the litigant shall be deemed to have exhausted all available state
remedies.
Colo. App. R. 51.1(a).
Pursuant to Colo. App. R. 51.1(a), the Court finds that review in the Colorado
Supreme Court is not required to exhaust state remedies if the claim in question was
presented fairly to the Colorado Court of Appeals. See, e.g., Valenzuela v. Medina, No.
10-02681-BNB, 2011 WL 805787 (D. Colo. Feb. 28, 2011). Accord Lambert v.
Blackwell, 387 F.3d 210, 233 (3d Cir. 2004) (Pennsylvania); Adams v. Holland, 330
F.3d 398, 401-03 (6th Cir. 2003) (Tennessee); Randolph v. Kemna, 276 F.3d 401, 40405 (8th Cir. 2002) (Missouri); Swoopes v. Sublett, 196 F.3d 1008, 1009-10 (9th Cir.
1999) (Arizona).

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D. Procedural Default
Beyond questions of exhaustion, a federal court may be precluded from
reviewing claims under the “procedural default doctrine.” Gray v. Netherland, 518 U.S.
152, 162 (1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991). Like the
exhaustion requirement, the procedural default doctrine was developed to facilitate the
dual state/federal judicial system and, in turn, it is based upon the “independent and
adequate state law grounds” doctrine.
It is well established that federal courts will not review questions of
federal law presented in a habeas petition when the state court’s decision
rests upon a state-law ground that is independent of the federal question
and adequate to support the judgment. In the context of federal habeas
proceedings, the independent and adequate state ground doctrine is
designed to ensure that the States’ interest in correcting their own
mistakes is respected in all federal habeas cases. When a petitioner fails
to properly raise his federal claims in state court, he deprives the State of
an opportunity to address those claims in the first instance and frustrates
the State’s ability to honor his constitutional rights. Therefore, consistent
with the longstanding requirement that habeas petitioners must exhaust
available state remedies before seeking relief in federal court, we have
held that when a petitioner fails to raise his federal claims in compliance
with relevant state procedural rules, the state court’s refusal to adjudicate
the claim ordinarily qualifies as an independent and adequate state
ground for denying federal review.
Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotations and citations omitted).
“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision . . . . For the state ground to be adequate, it
must be strictly or regularly followed and applied evenhandedly to all similar claims.”
Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998) (interna l quotations and
citations omitted). See also Dugger v. Adams, 489 U.S. 401, 410, n. 6 (1989) (holding

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that a state rule is adequate to preclude federal habeas corpus review if it is applied by
state courts in “the vast majority of cases.”).
Moreover, if a habeas applicant “failed to exhaust state remedies and the court
to which the petitioner would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally barred . . . there is a
procedural default.” Coleman, 501 U.S. 722 at 735 n.1; see also Harris v. Reed, 489
U.S. 255, 269-70 (1989); Anderson v. Sirmons, 476 F.3d 1131, 1139 n.7 (10th Cir.
2007) (“Anticipatory procedural bar occurs when the federal courts apply procedural bar
to an unexhausted claim that would be procedurally barred under state law if the
petitioner returned to state court to exhaust it.”) (citation omitted). Thus, if it is obvious
that an unexhausted claim would be procedurally barred in state court, the claim is
subject to an anticipatory procedural bar and is procedurally barred from federal habeas
review. See, e.g., Rea v. Suthers, 402 F. App’x 329, 331 (10th Cir. 2010); Burton v.
Zavaras, 340 F. App’x 453, 454 (10th Cir. 2009); Williams v. Broaddus, 331 F. App’x
560, 563 (10th Cir. 2009).
An applicant whose constitutional claims have not been addressed on the merits
due to procedural default can overcome the default, thereby allowing federal court
review, if he or she can demonstrate either: 1) “cause” for the default and “actual
prejudice” as a result of the alleged violation of federal law; or 2) failure to consider the
claims will result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
To demonstrate cause for his procedural default, an applicant must show that
some objective factor external to the defense impeded his ability to comply with the
relevant procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986); United
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States v. Salazar, 323 F.3d 852, 855 (10th Cir. 2003). “Objective factors that constitute
cause include interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal basis for a claim
was not reasonably available to [applicant].” McClesky v. Zant, 499 U.S. 467, 493-94
(1991) (internal quotation marks omitted). If an applicant can demonstrate cause, he
also must show “actual prejudice as a result of the alleged violation of federal law.”
Coleman, 501 U.S. at 750.
A fundamental miscarriage of justice occurs when “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at
496; see also United States v. Cervini, 379 F.3d 987, 991-92 (10th Cir. 2004). A
“substantial claim that constitutional error has caused the conviction of an innocent
person is extremely rare.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
III. ANALYSIS
As stated above, this Court may review only claims that have been fairly and
properly reviewed by the state courts. Because Applicant’s claims in the instant
Application are convoluted and repetitive, the Court will review the claims Applicant
presented to the state courts to determine his eligibility for review here.
A. Applicant’s Direct Appeal
In his direct review, Applicant presented the following claims.
1.

Mr. Quintana’s statutory and federal and state speedy trial rights were
violated.

2.

The prosecution failed to prove beyond a reasonable doubt that Mr.
Quintana committed second degree kidnaping against S.P.

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3.

Mr. Quintana’s due process rights to a fair trial by an impartial jury were
denied by the trial court’s erroneous admission of irrelevant and highly
prejudicial evidence of the defendant’s purported gang affiliation and
when several of the jurors witnessed the defendant in restrictive custody.

4.

The trial court reversibly erred by failing to instruct the jury, over defense
objection, on the lesser included offense (to first degree assault) of third
degree assault.

5.

The district court erred in entering inconsistent verdicts on both reckless
and intentional mental states for the same act against the same victim.

Applicant’s opening brief (direct review), Docket No. 12-2. All of these claims were
reviewed by the CCA. Thus, these claims have been exhausted for purposes of federal
habeas corpus review and may be reviewed on the merits.1
In his post-conviction proceeding, Applicant presented the following claims:
1.

Trial Counsel had a conflict of interest;

2.

Trial Counsel rendered ineffective assistance by failing to:
A. remove jurors who allegedly saw Quintana in restrictive custody;
B. protect Quintana’s right to a speedy trial;
C. provide Quintana with discovery before trial;
D. prepare for trial;
E. make an opening statement;
F. investigate;
G. effectively cross-examine certain witnesses;
H. call favorable witnesses;

Although the CCA declined to address the merits of Applicant’s constitutional
speedy trial claim, it did so in error as Applicant clearly raised a constitutional claim on
direct appeal. See Docket No. 12-2, pp. 14-17. Respondents may reassert the
defense of procedural default if the state court record supports such a claim.
1

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I. file a notice of appeal; and
J. violated his “due process right to run an innocence defense.”
3.

The physicians who performed his competency evaluation were biased;

4.

His sentence was illegal and violated the rules announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.
296 (2004); and

5.

He received multiple punishments for the same offenses in violation of
double jeopardy protections.

In its review of these claims, the CCA reviewed Applicant’s ineffective assistance
of counsel (“IAC”) claims and denied them on the merits. It further determined that the
district court properly denied claims 4 and 5 as successive because the claims were, or
could have been, raised on direct appeal in accordance with Colo. R. Crim. P.
35(c)(3)(VI)-(VII) (a court must deny any claim that was, or could have been, raised and
resolved in a prior appeal or postconviction proceeding on behalf of the same
defendant). Docket No. 12-8 at 17. It further concluded that it would not consider
arguments raised for the first time on appeal in accordance with Colorado procedural
law. See Bethurum v. Zavaras, 352 F. App’x 260, 263 (10th Cir. 2009) (recognizing
Colorado appellate practice in which the court refused to consider an argument on
appeal that had not been raised until the reply brief) (citing People v. Czemerynski, 786
P.2d 1100, 1107 (Colo. 1990)); Gross v. Michaud, No. 09-1267, 2010 WL 97797, 7 (D.
Colo. Jan. 11, 2010) (holding that failure to present claims to the Colorado Court of
Appeals in a procedurally proper manner results in procedural default). Consequently,
Applicant’s IAC claims raised in his post-conviction proceeding have been exhausted
and are ripe for review by this Court. Notwithstanding, claims 4 and 5 presented to the
state courts in his post-conviction proceeding have been procedurally defaulted.
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Moreover, any claims not identified as having been raised in either Applicant’s
direct appeal and/or his post-conviction proceeding as constitutional claims have been
anticipatorily defaulted. In this regard, the Court may not dismiss claims for failure to
exhaust state remedies if Mr. Quintana no longer has an adequate and effective state
remedy available to him. See Castille, 489 U.S. at 351. However, no further state court
remedy exists because any future claims would be denied as successive under Colo. R.
Crim. P. 35(c) because they could have been presented in an appeal or postconviction
proceeding previously brought. See Colo. Rev. Stat. § 35(c)(3)(VII). The Court notes
that Rule 35(c)(3)(VII) is independent because it relies on state rather than f ederal law.
The rule also is adequate because it is applied evenhandedly by Colorado courts. See,
e.g., People v. Vondra, 240 P.3d 493, 494 (Colo. App. 2010) (applying Crim. P. Rule
35(c)(3)(VII) to reject claims that could have been raised in a prior proceeding).
Colorado’s statute of limitations for collateral attacks is an independent and
adequate state procedural ground as well. See Colo. Rev. Stat. § 16-5-402 (2014)
(imposing a three-year limitation period for post conviction claims challenging non-class
1 felonies); Klein v. Neal, 45 F.3d 1395, 1398 (10th Cir. 1995). Mr. Quintana presents
no argument that these state procedural rules are not independent and adeq uate.
Therefore, the claims that Mr. Quintana failed to present either in his direct
appeal and/or his post-conviction proceeding are procedurally defaulted.
As a general rule, federal courts do not review issues that have been defaulted in
state court on an independent and adeq uate state procedural ground unless the default
is excused through a showing of cause and actual prejudice or a fundamental
miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 730 (1991). Mr.

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Quintana’s pro se status does not exempt him from the requirement of demonstrating
either cause and prejudice or a fundamental miscarriage of justice. See Lepiscopo v.
Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
To demonstrate cause for his procedural default, Mr. Quintana must show that
some objective factor external to the defense impeded his ability to comply with the
relevant procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986); United
States v. Salazar, 323 F.3d 852, 855 (10th Cir. 2003). A f undamental miscarriage of
justice occurs when “a constitutional violation has probably resulted in the conviction of
one who is actually innocent.” Murray, 411 U.S. at 496; see also United States v.
Cervini, 379 F.3d 987, 991-92 (10th Cir. 2004). T o demonstrate a fundamental
miscarriage of justice, Mr. Quintana first must “support his allegations of constitutional
error with new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence – that was not presented
at trial.” Schlup, 513 U.S. at 324. Mr. Quintana then must demonstrate “that it is more
likely than not that no reasonable juror would have convicted him in light of the new
evidence.” Id. at 327.
Mr. Quintana argues in his reply brief that his procedural defaults should be
excused because direct appeal counsel was ineffective in failing to raise his claims on
direct appeal. Appellate counsel’s failure to raise a meritorious issue on direct appeal
may constitute cause to excuse a procedural default. See Edwards v. Carpenter, 529
U.S. 446, 451 (2000); Hammon v. Ward, 466 F.3d 919, 925 (10th Cir. 2006). However,
the claim that appellate counsel was constitutionally ineffective must itself be exhausted
properly in the state courts. Edwards, 529 U.S. at 453. Mr. Quintana did not exhaust a

16

claim of ineffective assistance of appellate counsel claim in the state courts. See
Docket No. 12-6 (opening brief filed in state post-conviction proceeding). He thus
cannot rely on the ineffective assistance of appellate counsel to excuse his anticipatory
procedural defaults. See Edwards, 529 U.S. at 453; see also Livingston v. Kansas, 407
F. App’x 267, 273 (10th Cir. 2010) (unpublished).
Mr. Quintana suggests that his procedural default should be excused because
the state court denied his request for appointed post-conviction counsel. 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 stated that, given 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
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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 om itted); Ardolino v. People,
69 P.3d 73, 77 (Colo. 2003) (“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 have not addressed the applicability of Martinez to Applicant’s IAC
claims. 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 are substantial. Accordingly, the Court will defer
ruling on whether Mr. Quintana has demonstrated cause for his procedurally defaulted
IAC claims, pursuant to Martinez v. Ryan, pending the Court’s receipt of the state court
record.

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Mr. Quintana fails to argue any basis for a finding of cause and prejudice or a
fundamental miscarriage of justice with respect to his non-IAC defaulted claims in this
action. Therefore, because Mr. Quintana has failed to demonstrate cause and
prejudice or a fundamental miscarriage of justice, the Court finds that these claims are
procedurally barred and must be dismissed.
IV. CONCLUSION
Accordingly, it is
ORDERED that, to the extent that Applicant is raising constitutional claims that
are the same as those raised in his direct appeal, those claims are exhausted and are
ripe for review on the merits. It is further
ORDERED that, to the extent that Applicant is raising IAC claims that are the
same as those raised in his post-conviction petition, those claims are exhausted and
are ripe for review on the merits. It is further
ORDERED that the Court defers ruling on the applicability of a procedural bar to
IAC claims not raised in Applicant’s post-conviction proceeding pending the Court’s
review of the state court record. It is further
ORDERED that the remaining claims are procedurally defaulted and
DISMISSED. It is further
ORDERED that, within thirty days after the filing of the state court record,
Respondents are directed to file an answer that complies with Rule 5 of the Rules
Governing Section 2254 Cases that fully addresses the merits of the claims that are
ripe for review on the merits. In the Answer, Respondents may include additional
argument concerning the merits of the unexhausted IAC claims. It is further
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ORDERED that a traverse, if any, and only a traverse, may be filed by Applicant
within thirty days of the filing of the answer. It is further
ORDERED that within thirty days from the date of this Order the Respondents
shall file with the Clerk of the Court, in electronic format if available, a copy of the
complete record of Applicant’s state court proceedings in Case No. 04CR2291,
including all documents in the state court file and transcripts of all proceedings
conducted in the state court, but excluding any physical evidence (as opposed to
documentary evidence) not relevant to the asserted claims. It is further
ORDERED that the Clerk of the Court is directed to send copies of this Order to
the following:
(1)

Clerk of the Court
Denver City and County District Court
520 West Colfax Avenue, Rm. 135
Denver, Colorado 80204

(2)

Court Services Manager
State Court Administrator’s Office
101 W. Colfax, Ste. 500
Denver, Colorado 80202.

DATED November 4, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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