Aguilar v. Zupan et al

Filing 21

ORDER: 1 Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by Antonio Aguilar is denied and this case is dismissed. There is no basis to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Le ave for the applicant to proceed in forma pauperis on appeal is denied. If the 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. Entered by Judge Raymond P. Moore on 2/25/2016. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 15-cv-01945-RM
ANTONIO AGUILAR,
Applicant,
v.
DAVID ZUPAN, and
COLORADO STATE ATTORNEY GENERAL,
Respondents.
ORDER DENYING 28 U.S.C. § 2254 APPLICATION
This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (the “Application”), filed pro se by Applicant
Antonio Aguilar, on September 8, 2015. He has been granted leave to proceed in forma
pauperis. (ECF No. 5). Respondents submitted a Pre-Answer (ECF No. 12) and an
Answer (ECF No. 18). Applicant failed to file a Reply despite being given an opportunity
to do so. After reviewing the record, including the Application, the Pre-Answer, the
Answer, and the state court record, the Court finds and concludes that the Application
should be denied and the case dismissed with prejudice.
I. BACKGROUND
On February 1, 2005, Applicant was convicted by a jury of first degree burglary,
second degree burglary, theft, robbery and conspiracy to commit robbery in Jefferson
County District Court Case No. 03CR2633. (ECF No. 1 & 12-7). The jury could not
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reach a verdict on a charge of felony murder and a mistrial was granted with respect to
that charge. (ECF No. 12-7). Prior to the scheduled retrial, defendant pled guilty to
second degree murder in exchange for dismissal of the felony murder charge. Id. On
April 15, 2005, the trial court sentenced defendant to a total of fifty-seven years in
prison. (Id.)
On direct appeal, Applicant challenged his lesser convictions and related
sentence. On August 21, 2008, the Colorado Court of Appeals merged applicant’s first
and second degree burglary convictions and affirmed the judgment in all other respects.
(ECF No. 12-3). The Colorado Supreme Court denied certiorari on December 22, 2008.
(ECF No. 12-5).
On January 8, 2010, applicant filed a pro se Crim. P. 35(c) motion alleging nine
claims of ineffective assistance of counsel. (ECF No. 12 at 2 n.1). The district court
issued a written order denying the claims without holding a hearing. The Colorado
Court of Appeals affirmed the postconviction court’s order. (ECF No. 12-7). The
Colorado Supreme Court denied certiorari on December 9, 2013. (ECF No. 12-9).
On December 16, 2013, applicant filed a motion to correct illegal sentence with
the state district court. (ECF No. 12-1). He resubmitted the motion, with counsel, on
February 3, 2014. (Id.) The motion was denied by the district court in a written order on
February 7, 2014. (Id.) The Court of Appeals affirmed the denial, (ECF No. 12-12), and
the Colorado Supreme Court denied certiorari on June 1, 2015, (ECF No. 12-14).
On July 8, 2015, applicant filed a “Petition for Post Conviction Relief” and “Direct
Appeal 35c” with the state district court. (ECF No. 12-1 at 10). The motions were
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denied and the appeal is currently pending. (See ECF No. 12-1 at 9-10, ECF No. 1215, ECF No. 12-16).
On April 1, 2013, Applicant initiated a habeas action pursuant to 28 U.S.C.
§ 2254 in this court. See Aguilar v. Tamme, 13-cv-00494-MSK. In that case, Chief
Justice Marcia S. Krieger initially dismissed the application in part. (Id. at ECF No. 25).
Subsequently, the entire case was deemed voluntarily dismissed. (Id. at ECF No. 35).
On September 8, 2015, Applicant filed the instant habeas motion pursuant to 28
U.S.C. § 2254, asserting the following nine claims for relief:
1. Double Jeopardy (jurisdiction) violation because the trial court allowed
the felony murder charge to be retried following Mr. Aguilar’s burglary
conviction at the first trial.
2. Due Process Violation because the prosecution’s testing of DNA
evidence consumed the sample.
3. Due Process Violation because the trial court allowed an expert
witness to testify about population frequency statistics.
4. Due Process Violation because the evidence was insufficient to
support the convictions for robbery and theft.
5. Due Process Violation because the state was required to prove that
applicant had the intent to commit theft, which was an essential
element of the crime of burglary.
6. Due Process Violation because the prosecution was allowed to amend
the burglary charge after the close of evidence.
7. Due Process Violation because of prosecutorial misconduct during
closing argument.
8. Due Process Violation because the trial court failed to instruct the jury
on the lesser included offense of criminal negligent homicide and/or
manslaughter.
9. Due Process Violation because there was no factual basis for the court
to accept applicant’s guilty plea to second degree murder.
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(ECF No. 1 at 5-6.)
In the Pre-Answer Response, Respondents conceded that the Application was
timely under 28 U.S.C. § 2244(d). (ECF No. 12 at 6). On November 20, 2015, the Court
dismissed claims one, two, three and eight of the Application as procedurally barred.
(ECF No. 15). Accordingly, the Court addresses the merits of claims four, five, six,
seven, and nine of the Application below.
II. LEGAL STANDARDS
A. PRO SE LITIGANT
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 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, 957 (10th Cir. 2002).

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B. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the court must answer under § 2254(d)(1) is whether the
applicant seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). Clearly established federal law "refers to the holdings, as opposed to the dicta,
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision."
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases
where the facts are at least closely-related or similar to the case sub
judice. Although the legal rule at issue need not have had its genesis in
the closely-related or similar factual context, the Supreme Court must
have expressly extended the legal rule to that context.

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House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law if:
(a) "the state court applies a rule that contradicts the governing law set
forth in Supreme Court cases"; or (b) "the state court confronts a set of
facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that] precedent."
th
Maynard [v. Boone], 468 F.3d [665,] 669 [(10 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
unreasonably refuses to extend, a legal principle from Supreme Court
precedent to a new context where it should apply.
House, 527 F.3d at 1018.
The court’s inquiry pursuant to the "unreasonable application" clause is an
objective inquiry. See Williams, 529 U.S. at 409–10. "[A] federal habeas court may not
issue the writ simply because that court concludes in its independent 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
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judgment would conclude the state court misapplied Supreme Court law." Maynard,
468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Richter, 131 S.Ct. at 786 (internal quotation marks omitted). In conducting this analysis,
the court "must determine what arguments or theories supported or . . . could have
supported[ ] the state court's decision" and then "ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court." Id. Moreover, "review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Under this standard, "only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also
Richter, 131 S.Ct. at 786 (stating that "even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable").
As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 131 S.Ct. 786–87.
The court reviews claims asserting factual errors pursuant to 28 U.S.C.

7

§ 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002).
Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court
must presume that the state court's factual determinations are correct and the petitioner
bears the burden of rebutting the presumption by clear and convincing evidence. "The
standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’" Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller–
El v. Cockrell, 537 U.S. 322, 340 (2003)).
Finally, the Court’s analysis is not complete "[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law."
th

Bland v. Sirmons, 459 F.3d 999, 1009 (10 Cir. 2006). "Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . ." Id.; see
also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it "had substantial and injurious effect" on the jury’s
verdict. Brecht, 507 U.S. at 637. "A ‘substantial and injurious effect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict."
Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). "Grave
doubt" exists when "the matter is so evenly balanced that [the Court is] in virtual
8

equipoise as to the harmlessness of the error." O’Neal, 513 U.S. at 435. The Court
make this harmless error determination based upon a review of the entire state court
th

record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10 Cir. 2000).
III. ANALYSIS
A. CLAIM FOUR
In Claim Four, Applicant asserts that he was denied due process because the
evidence was insufficient to support his robbery and theft convictions. (See ECF No. 1
at 20). Mr. Aguilar challenges the element of “taking from the presence of the victim”
with respect to the robbery conviction and “taking items from the victim,” with respect to
both the robbery and theft convictions.
A habeas applicant’s constitutional challenge to the sufficiency of the evidence is
governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support
a conviction as a matter of due process if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in the
original). The court considers both direct and circumstantial evidence in determining the
sufficiency of the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998).
The court “may not weigh conflicting evidence nor consider the credibility of witnesses,”
but must “‘accept the jury's resolution of the evidence as long as it is within the bounds
of reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Grubbs v.
Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). "Sufficiency of the evidence is a
mixed question of law and fact." Maynard, 468 F.3d at 673. The Court must apply both
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§ 2254(d)(1) and (d)(2) and "ask whether the facts are correct and whether the law was
properly applied to the facts." Id.
In applying Jackson, the court looks to state law to determine the substantive
elements of the offense. See Jackson, 443 U.S. at 324 n.16; Valdez v. Bravo, 373 F.3d
1093, 1097 (10th Cir. 2004). To the extent an insufficient evidence claim involves an
interpretation of state law, the state court’s interpretation "binds a federal court sitting in
habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam).
1. “Presence of the victim” element
First, Applicant argues that the prosecution did not present sufficient evidence
that he took from the “presence” of the victim to support his robbery conviction. (See
ECF No. 1 at 20). Under Colorado law, the crime of robbery is defined as: knowingly
taking “anything of value from the person or presence of another by the use of force,
threats, or intimidation.” Colo. Rev. Stat. (“C.R.S.”) § 18-4-301(1) (2007). Mr. Aguilar
maintains that the victim was not in the “presence of the articles that were taken and
was not close enough to them to have prevented the taking, even if his movement was
curtailed.” (See ECF No. 1 at 20).
The Colorado Court of Appeals rejected Applicant’s claim regarding “presence of
the victim” on the following grounds:
Property is taken from the presence of another when “it is so
within the victim’s reach, inspection or observation that he or
she would be able to retain control over the property but for
the force, threats, or intimidation directed by the perpetrator
against the victim.” People v. Bartowsheski, 661 P.2d 235,
244 (Colo. 1983). When the victim of the robbery, against
who force, threats, or intimidation is directed, is present in
one room of a residence and the taking occurs in another
room, the “presence” requirement is satisfied. Id.
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Here, although the property items were taken from the upper
floor while the victim was on the lower floor, we conclude
that he would have been able to retain control over the
property but for the force used by defendant against him.
Defendant’s reliance on People v. Benton, 829 P.2d 451
(Colo. App. 1991), is misplaced. The division there held that
a restaurant customer was not a victim of aggravated
robbery, because he did not have any right of control and did
not exercise any control over the money that was stolen from
the restaurant’s cash registers. Id. at 453-54. Here, it is
undisputed that the victim had the right of control over the
property taken from his home.
(ECF No. 11-3 at 3-4).
In habeas review, a federal court must defer to Colorado courts’ interpretation of
the “presence” requirement in Colorado law. The Colorado Supreme Court has
explained the presence requirement as follows:
It has been stated that “presence” in the context of robbery
“is not so much a matter of eyesight as it is one of proximity
and control: the property taken in the robbery must be close
enough to the victim and sufficiently under [her] control that,
had the latter not been subjected to violence or intimidation
by the robber, [she] could have prevented the taking.” W.
LaFave and A. Scott, Handbook on Criminal Law § 94 at 696
(1972). The word “presence” has been construed to
encompass the taking of property from a location different
from but near the place where the force, threats, or
intimidation was initially employed against the robbery victim.
See e.g., Cobern v. State, 273 Ala. 547, 142 So.2d 869
(1962) (robbery committed where victim attacked and killed
in her home and car stolen from her front yard); State v.
Atkins, 549 S.W.2d 927 (Mo. App. 1977) (property taken
from closet in another room within a victim’s presence or
control). We hold that property is taken from the “presence
of another” when it is so within the victim’s reach, inspection
or observation that he or she would be able to retain control
over the property but for the force, threats, or intimidation
directed by the perpetrator against the victim. See United
States v. Dixon, 152 U.S. App. D.C. 200, 469 F.2d 940 (D.C.
11

Cir. 1972); People v. Braverman, 340 Ill. 525, 173 N.E. 55
(1930); Commonwealth v. Homer, 235 Mass. 526, 127 N.E.
517 (1920). Any narrower construction would “invite wouldbe perpetrators to waylay their victims in one location and
then as part of the same transaction, to take their property
from another nearby location, thereby avoiding guilt of
robbery, even if the other elements of the offense were
present.” State v. Thompson, 37 N.C.App. 651, 661, 247
S.E.2d 235, 240-41 (1978). In this case, the “presence”
element is broad enough to encompass the situation where
the victim of the robbery, against whom the force, threats, or
intimidation is directed, is present in one room of a family
home and the taking occurs within another room.
People v. Bartowsheski, 661 P.2d 235, 244 (Colo. 1983).
Here, the evidence supports the following facts: the victim was tied up in the
basement and his property was taken from the main floor. (See ECF No. 11-3 at 3).
The state court’s factual findings, which are presumed correct in this federal habeas
proceeding, are supported by the state court record,1 and are unrebutted by Applicant.
Viewed in a light most favorable to the prosecution, a rational jury could have concluded
beyond a reasonable doubt that Applicant took “from the presence” of the victim. The
Court therefore finds that the state appellate court’s determination that there was
sufficient evidence presented at Applicant’s trial to support his conviction for robbery
was consistent with federal law.
2. “Taking” element
Next, Applicant argues that the prosecution did not present sufficient evidence
that he “[took] items from the victim,” with respect to both the robbery and theft
convictions. (See ECF No. 1 at 20). He maintains that “[w]itnesses testify that they

1

See State Court R., 1/24/05 Trial Tr.

12

never seen [sic] me taking anything from the house or from Mr. Roberts physically.”
See id.
The Colorado Court of Appeals analyzed the taking element of robbery and theft
as follows:
The prosecution asserted both that defendant was directly
culpable of robbery and theft, and that he was guilty based
on a theory of complicity. To be guilty of a criminal offense
under a theory of complicity, a person must (1) have
knowledge that another person intends to commit an
offense; (2) have the intent to promote or facilitate the
commission of the offense; and (3) aid, abet, advise, or
encourage another in planning or committing the offense.
§ 18-1-603, C.R.S. 2007; People v. Fisher, 904 P.2d 1326,
1330 (Colo. App. 1994), vacated and remanded to 926 P.2d
170 (Colo. App. 1996).
Viewed in the light most favorable to the prosecution, the
evidence at trial established that defendant and his friends
planned to rob the victim, and in furtherance of that plan,
went to the victim’s home three times on the night of the
robbery. On their second visit, defendant removed glass
from a door so that he and his friends could enter the home.
Defendant knew that the women planned to rob the victim
while he and his male roommate tied up and restrained the
victim.
Accordingly, we conclude that sufficient evidence was
presented to enable a reasonable jury to find defendant
guilty beyond a reasonable doubt of theft and robbery based
on a complicity theory.
(ECF No. 12-3 at 5-6).
At the time applicant committed his offense, the Colorado Supreme Court
interpreted the complicity statute, C.R.S. § 18-1-603, to require the following elements:
1. A crime must have been committed.
2. Another person must have committed [all or part of] the crime.
3. The defendant must have had knowledge that the other person intended to
commit [all or part of] the crime.
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4. The defendant must have had the intent to promote or facilitate the commission
of the crime.
5. The defendant must have aided, abetted, advised, or encouraged the other
person in the commission or planning of the crime.
People v. Bogdanov, 941 P.2d 247, 254 n.10 (Colo. 1997).2
Here, the evidence supports the following facts: the defendant and his three
companions devised a plan to rob the victim. While carrying out the plan, Mr. Aguilar
and the other male restrained the victim in the basement while the two females stole
items from the main floor. (See ECF No. 11-3 at 5-6). The state court’s factual findings,
which are presumed correct in this federal habeas proceeding, are supported by the
state court record,3 and are unrebutted by Applicant. The Court therefore finds that the
state appellate court’s determination that there was sufficient evidence presented at
Applicant’s trial to support his conviction for robbery and theft was consistent with
federal law.
Thus, Applicant cannot prevail on Claim Four.
B. CLAIMS FIVE AND SIX
In Claim Five, Applicant asserts that his due process rights were violated
because in order to be convicted of burglary, the state was required to prove that
applicant had an intent to commit theft, which was an essential element of the crime of
burglary. In Claim Six, Applicant asserts that his due process rights were violated
because the prosecution was allowed to amend the burglary charge after the close of
evidence to tender an instruction of theft instead of robbery as the underlying offense.
2

The Respondents acknowledge that the Colorado Supreme Court recently retreated from this definition
of complicity in People v. Childress, No. 12SC820, 2015 CO 65 (Colo. Nov. 23, 2015).

3

See State Court R., 1/24/05 Trial Tr.

14

(See ECF No. 1 at 20-21). The Respondents argue that Claim Five presents only an
abstract statement of law that appears to be related to Claim Six.
Both claims are based on the Prosecution changing the underlying offense for
the burglary charge from robbery to theft. It was clearly established federal law when
Applicant was convicted "that a court cannot permit a defendant to be tried on charges
that are not made in the indictment against him." Stirone v. United States, 361 U.S. 212,
217, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960). As a result, "[a] charging instrument may
violate the Sixth Amendment by failing to provide a defendant with adequate notice of
the nature and cause of the accusations filed against him." Johnson v. Gibson, 169
F.3d 1239, 1252 (10th Cir. 1999). In determining whether Applicant had adequate
notice of the nature and cause of the accusations filed against him prior to trial, the
Court may consider the charges as stated in the amended information as well as the
evidence presented at Applicant's preliminary hearing and through discovery. See
Sallahdin v. Gibson, 275 F.3d 1211, 1227 (10th Cir. 2002) (analyzing adequacy of a
charging document by considering the information and other material available at the
preliminary hearing and through discovery).
The Court of Appeals analyzed the issue as follows:
A constructive amendment is made when an essential
element of the charged offense is changed. People v.
Foster, 971 P.2d 1082, 1087 (Colo. App. 1998) (citing
People V. Rodriguez, 914 P.2d 230 (Colo. 1996)). “A
variance that broadens an indictment constitutes a
constructive amendment and is reversible per se.” Id. (citing
United States v. Wright, 932 F.2d 868 (10th Cir. 1991)).
“‘Technical defects in an information do not require reversal
unless the substantial rights of the defendant are prejudiced.
The defendant is entitled to reversal if he was prejudiced,
surprised, or hampered in his defense.’” Rodriguez, 914
15

P.2d at 259 (quoting People v. Albo, 195 Colo. 102, 106, 575
P.2d 427, 429 (1978)); see § 16-10-202, C.R.S. 2007 (no
judgment of conviction shall be reversed due to any defect
which does not prejudice substantial rights of the defendant
on the merits).
First degree burglary is committed when a person “knowingly
enters unlawfully, or remains unlawfully after a lawful or
unlawful entry, in a building or occupied structure with intent
to commit therein a crime.” § 18-4-202(1), C.R.S. 2007. The
statute does not specify the types of crimes that satisfy the
intent element.
A criminal information charging burglary is not defective
simply because it does not specify the underlying intended
crime. See People v. Williams, 984 P.2d 56, 60 (Colo. 1999)
(construing similar language in criminal trespass statute).
Failure to correctly specify the underlying intended crime in
the criminal information here was a defect of form, not of
substance, and could be corrected at any time before the
verdict so long as substantial rights of defendant were not
prejudiced. Id. at 63-64; see Crim. P. 7(e).
Here, the information charged the defendant with (1) first
degree burglary with intent to commit robbery, and (2)
second degree burglary with intent to commit theft. At the
end of trial, but before jury deliberations, the prosecution
submitted an instruction alleging that defendant committed
first degree burglary, but without specifying an underlying
intended crime. The court rejected the instruction, and
allowed the prosecution to select between robbery and theft
as the underlying intended crime. The prosecution chose to
instruct the jury on first degree burglary with intent to commit
theft. The trial court permitted the amendment, over defense
counsel’s objection, and stated its belief that such
amendment would not be a surprise to the defense.
We conclude that the instruction did not impermissibly
amend the charge in the information, because the
information alleged the essential elements of burglary with
sufficient specificity to inform defendant of the offenses with
which he was charged. Rodriguez, 914 P.2d at 258. The
specification of the underlying intended crime “represents
further evidentiary details which the information need not
state.” Id.
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Here as in Rodriguez, “any variance . . . between the facts
set forth in the information and those on which the court
instructed the jury concerned the same incident . . ., the
same defendant, victim, and accomplices.” Id. Defendant
was on notice that theft was charged both as an underlying
intended crime for the second degree burglary charge, and
as an independent charge, and he therefore was not
hampered in presenting his defense. Id. at 259. Therefore,
we agree with the trial court that there was no unfair surprise
or prejudice to defendant from the prosecution’s submission
of a jury instruction naming theft as the underlying intended
crime for the first degree burglary charge.
Consequently, we conclude the trial court did not abuse its
discretion when it permitted the prosecution to amend the
burglary charge.
(ECF No. 12-3 at 8-11).
The Colorado Court of Appeals concluded that Applicant was made aware of the
charges he faced and that he had an adequate opportunity to defend against those
charges. That conclusion was based in large part on the fact that theft was charged
both as an underlying intended crime for the second degree burglary charge, and as an
independent charge. The state court's decision rejecting Applicant’s claim is neither
contrary to nor an unreasonable application of clearly established federal law.
Therefore, his Fifth and Sixth Claims will be dismissed.
C. CLAIM SEVEN
In Claim Seven, Applicant asserts a due process violation because of
prosecutorial misconduct during closing argument. Specifically, he contends that his
due process rights were violated when the prosecutor stated during closing arguments
that he had a personal friend that was a criminal defense attorney who told him there
17

were only five ways to defend a criminal defendant. The prosecutor then went on to list
all of the five ways.
The clearly established federal law relevant to a claim challenging a prosecutor’s
comments during closing argument is the Supreme Court’s decision in Darden v.
Wainwright, 477 U.S. 168 (1986). See Parker v. Matthews, 132 S. Ct. 2148, 2153
(2012) (per curiam). In Darden, the Supreme Court explained that a prosecutor’s
improper comments violate the Constitution only when the misconduct "‘so infected the
trial with unfairness as to make the resulting conviction a denial of due process.’"
Darden, 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)).
In order to determine whether prosecutorial misconduct rendered the trial fundamentally
unfair, the Court must consider "the totality of the circumstances, evaluating the
prosecutor’s conduct in the context of the whole trial." Jackson v. Shanks , 143 F.3d
th

1313, 1322 (10 Cir. 1998). "[T]he Darden standard is a very general one, leaving
courts ‘more leeway . . . in reaching outcomes in case-by-case determinations.’"
Parker, 132 S. Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Colorado Court of Appeals reasoned as follows in rejecting Mr. Aguilar’s due
process claim premised on the prosecutor’s comments during closing argument:
A defendant has the right to a trial by a fair and impartial
jury. U.S. Const. amend. VI; Colo. Const. art. II, §§ 16, 23. A
jury is no longer impartial if it has been misled by
inadmissible evidence or improper argument. DomingoGomez v. People, 125 P.3d 1043, 1048 (Colo. 2005); Harris
v. People, 888 P.2d 259, 264 (Colo. 1995).
A trial court has discretion to determine whether a
prosecutor’s statements constitute misconduct. DomingoGomez, 125 P.3d at 1049 (citing Harris, 888 P.2d at 265).
When determining the propriety of a prosecutor’s
18

statements, a trial court must consider “the language used,
the context in which the statements were made, and the
strength of the evidence supporting the conviction.” Id. at
1050. “Arguments made for the obvious purpose of
denigrating defense counsel are improper and constitute
professional misconduct.” People v. Williams, 89 P.3d 492,
494 (Colo. App. 2003) (citing People v. Darbe, 62 P.3d 1006,
1013 (Colo. App. 2002)); see also People v. Hogan, 114
P.3d 42, 56 (Colo. App. 2004) (it was improper to compare
defense counsel’s strategy to the defendant’s strategy in
selecting an alleged kidnapping victim); but see People v.
Cevallos-Acosta, 140 P.3d 116, 124 (Colo. App. 2005) (trial
court did not abuse its discretion in overruling objection to a
personal attack where the statements made did not directly
denigrate the defense or impugn defense counsel’s
integrity). However, a prosecutor may comment in rebuttal
argument on whether the defendant’s theory lacks credibility.
Foster, 971 P.2d at 1086.
Where a defendant objects at trial to a prosecutor’s improper
argument, we review for harmless error. Crider v. People,
186 P.3d 39, 42-43 (Colo. 2008) (prosecutorial misconduct is
subject to review for harmless error, and not for
constitutional harmless error); Liggett v. People, 135 P.3d
725, 733 (Colo. 2006). Even a properly preserved assertion
of trial error will be disregarded as harmless whenever there
is no reasonable probability that it contributed to the
defendant’s conviction. Crider, 186 P.3d at 42. Improper
argument that does not substantially influence the verdict or
adversely affect the fairness of the proceedings is harmless.
People v. Knight, 167 P.3d 147, 156 (Colo. App. 2006)
(citing People v. Griffith, 58 P.3d 1111, 1113 (Colo. App.
2002)); see Crim. P. 52(a).
B. Analysis
Here, the prosecutor stated that he had spoken with a good
friend of his who was a defense attorney, who had told him
that there are only five ways to defend a criminal defendant.
The trial court overruled defendant’s objection to this
comment, and reminded the jury that the prosecutor’s
comments were argument. The prosecutor then argued that
the five possible defense strategies were:
19

(1)

“the mother defense, the alibi defense. The mother
comes in and says he was with me at the nursing
home reading from the Bible”;

(2)

“the he deserved it defense, that somehow his life is
less worthy than anyone else’s because he might
have had non-standard sexual preferences”;

(3)

“all these imaginary doubts in this trial I will call
Sponge Bob Square Pants, that some absolutely
mythical creature came in and killed [the victim] on
the very same date that [this] group of four went over
to jack him . . .”;

(4)

“I did it but I was high”; and

(5)

“[t]he last defense is shortened to SODDI, S-O-D-D-I,
some other dude did it.”

We conclude that defendant’s objection to the initial line of
argument was sufficient to preserve this issue for appeal,
and we therefore review it under a harmless error standard.
The prosecutor’s quoted comments were improper, in that
they tended generally to denigrate defense counsel and to
belittle the common defense strategy of positing reasonable
doubts. However, some of these comments, though
inartfully phrased, responded to defense counsel’s closing
argument, in which she: asserted that a party other than
defendant could have gone to the victim’s home after
defendant and his companions left; detailed the victim’s
sexual preferences, drug use, and risky behavior; and
argued that the cause of the victim’s death was unknown. In
light of the substantial evidence supporting defendant’s
conviction, we conclude that the prosecutor’s remarks, even
if improper, did not substantially influence the verdict or
contribute to defendant’s conviction, and any error was
therefore harmless.
(ECF No. 12-3 at 17-20).
The Colorado Court of Appeals determined Mr. Aguilar’s claim under a state law
standard similar to the standard identified by the United States Supreme Court.
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Although the prosecutor’s remarks may have been inappropriate, they did not so infect
the trial with unfairness as to make the conviction a denial of due process. The majority
of the prosecution’s comments were in response to the defense counsel’s statements
during closing argument.4 Further, the trial court specifically instructed the jury that the
prosecutor’s statement was “argument.”5 As such, the Court finds that the state
appellate court’s resolution of Applicant’s claim was not contrary to or an unreasonable
application of the clearly established rule of federal law. Therefore, Mr. Aguilar is not
entitled to relief with respect to Claim Seven.
D. CLAIM NINE
In Claim Nine, Applicant asserts his due process rights were violated because
there was no factual basis for his guilty plea to second degree murder as a crime of
violence. This claim was presented to the Colorado Court of Appeals as an ineffective
assistance of counsel claim. (See ECF 12-6 at 2).
The Colorado Court of Appeals addressed Applicant’s factual basis claim and
concluded that it lacked merit based on the following reasoning:
Defendant contends he received ineffective assistance of
counsel during the Crim. P. 11 providency hearing.
Specifically, he argues that his counsel failed to explain that .
. . the People were required to establish a factual basis for
his guilty plea. Subsumed within these arguments is
defendant’s claim that his plea was not voluntary, knowing,
or intelligent. Because the record refutes each of these
arguments, we reject this contention.
“[For a plea] to be constitutionally valid, a defendant must
enter his guilty plea knowingly, voluntarily, and intelligently.”
4

See State Court R., 1/28/05, Trial Tr., at 38-56.

5

See id. at 58.

21

Sanchez-Martinez v. People, 250 P.3d 1248, 1255 (Colo.
2011). “‘The longstanding test for determining the validity of
a guilty plea is whether the plea represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant.’” Id. (quoting Hill v. Lockhart, 474
U.S. 52, 56 (1985)).
...
[D]efendant’s plea agreement expressly waived his right to
establishment of a factual basis, stating, “I agree that there is
a factual basis for the plea of guilty to the crime charged in
this matter and waive the requirement of showing a factual
basis for the plea.” In any event, at the providency hearing
the trial court inquired into the factual basis, and the
following exchange occurred:
THE COURT: All right. Now, I heard two trials on this,
so I think I’ve got a pretty good idea of what the facts
are, but your lawyer is going to basically tell me what
they think the other side would be able to show. I
understand there’s two sides to the story, but I think
they think the other side could show that you and [a
codefendant] went, you know, to the basement, tied
up [the victim] with tape and cords and something
else, a belt, I think, covered him with a mattress, tied
him so tight he couldn’t get loose. The result is he
died.
Is that what you believe the evidence against your
client would be?
DEFENSE COUNSEL: That’s correct, Judge.
THE COURT: Is that true, did you and [codefendant]
do that?
DEFENSE COUNSEL: Judge, if I could, as I
indicated [defendant] is not giving up his right on that.
I would ask the Court not to ask him that.
THE COURT: You are not? Ordinarily I ask a person
whether they did it because usually I’m not going to
let him plead guilty to something that he didn’t do.
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But your lawyer, you sat through the trial, I’m not
going to ask you to admit that’s what you said [sic].
But do you agree that that’s what the district
attorney’s evidence will show?
DEFENDANT: That’s what they’re trying to prove,
yeah.
THE COURT: They – they do have evidence that
should prove that if a jury believed their side of the
story.
DEFENDANT: If the jury would believe.
THE COURT: Well, that clarifies a factual basis.
...
The record . . . refutes defendant’s claim that his plea was
not voluntary, knowing, or intelligent. At the providency
hearing, defendant represented to the court that he had read
the entire plea agreement and understood everything in it.
After full advisement by the court, defendant pled guilty. The
record shows that this was a voluntary and intelligent choice
among the alternative courses of action open to defendant.
Sanchez-Martinez, 250 P.3d at 1255; see, e.g., North
Carolina v. Alford, 400 U.S. 25, 37-38 (1970) (“Confronted
with the choice between a trial for first-degree murder, on the
one hand, and a plea of guilty to second-degree murder, on
the other, Alford quite reasonably chose the latter and
thereby limited the maximum penalty to a 30-year term.”).
(ECF No. 12-7 at 13-18).
The federal Constitution does not require a factual basis for a guilty plea.
Freeman v. Page, 443 F.2d 493, 497 (10th Cir. 1971). Section 2254 does not provide a
remedy for a claim that a guilty plea lacked a factual basis. Sena v. Romero, 617 F.2d
579, 581 (10th Cir. 1980) ("[Petitioner's] contention that the absence of a record
showing a factual basis for his plea is an independent ground for invalidating the plea, is
without merit."). Only when the defendant claims his factual innocence while pleading
23

guilty have state courts been constitutionally required to establish a factual basis for a
plea. See Alford, 400 U.S. at 37-39.
I have reviewed the transcript of the March 15, 2005 providency hearing. See
State Court R., 3/15/05 Hearing Transcript. Although Applicant maintained his
innocence at trial, I find no statement of innocence by Mr. Aguilar in the transcript during
the providency hearing. See id. Mr. Aguilar’s attorney stated that Applicant did not
want to openly admit to the factual basis, but he also did not openly deny it. At the
hearing, the Court provided an explanation of what the prosecution’s evidence could
show at trial. Mr. Aguilar agreed that the prosecution had evidence that could prove
second degree murder if the jury believed the prosecution’s side of the story. See id. at
12. Further, in response to the trial court judge's questions, Mr. Aguilar responded that
he had read and understood the plea agreement, that he had enough time to talk with
his attorneys about the plea, and that he thought his attorneys had done a “pretty good”
job for him. See id. at 3, 7.
Based on my review of the state court record, I find that the Colorado Court of
Appeals' decision regarding Mr. Aguilar's factual basis claim is not contrary to or an
unreasonable application of established federal law. Therefore, Applicant's Claim Nine
lacks merit.
IV. ORDERS
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1), filed pro se by Applicant Antonio Aguilar, on September 8,
2015, is DENIED and this case is DISMISSED on the merits. It is
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FURTHER ORDERED that there is no basis on which to issue a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) because Applicant has not made a
substantial showing that jurists of reason would find it debatable whether the
jurisdictional and procedural rulings are correct and whether the Application states a
valid claim of the denial of a constitutional right. 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 would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962).
If 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 this 25th day of February, 2016.
BY THE COURT:

________________________________
RAYMOND P. MOORE
United States District Judge

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