Carbajal v. Raemisch et al

Filing 67

ORDER on Amended Application for Writ of Habeas Corpus. ORDERED that the Motion for Leave to Correct Petitioner's Traverse Via Errata Sheet 64 is granted. The Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 9 is denied and this case is dismissed with prejudice. There is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c), by Chief Judge Philip A. Brimmer on 10/8/19.(sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 18-cv-01501-PAB
DEAN CARBAJAL,
Applicant,
v.
DEAN WILLIAMS, Executive Director of CDOC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant, Dean Carbajal, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Carbajal has filed pro se on August 28, 2018 an
Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the
“Amended Application”). Docket No. 9. Mr. Carbajal is challenging the validity of his
conviction and sentence in the District Court for the City and County of Denver,
Colorado, Case Number 10CR3824. On May 17, 2019, Respondents filed an Answer
to Application for Writ of Habeas Corpus (the “Answer”). Docket No. 40. On August
20, 2019, Mr. Carbajal filed Applicant Dean Carbajal’s Traverse to State’s Answer (the
“Traverse”). Docket No. 63. On August 22, 2019, Mr. Carbajal filed a Motion for
Leave to Correct Petitioner’s Traverse Via Errata Sheet, Docket No. 64, asking the
Court to consider additional exhibits he intended to submit with the Traverse. That
motion will be granted.
After reviewing the record, including the Amended Application, the Answer, the

Traverse, and the state court record, the Court concludes Mr. Carbajal is not entitled to
relief.
I. BACKGROUND
The following background information is taken from the opinion of the Colorado
Court of Appeals on direct appeal.
The defendant, Dean Carbajal, and the victim dated
for almost a year before they broke up in early 2010. Soon
after the breakup, a court issued a protection order,
prohibiting Carbajal from contacting the victim. Yet,
Carbajal followed the victim for the next few months,
showing up at her house and workplace. One night,
Carbajal went to the victim’s house and, according to her
neighbors, was holding a knife, threatening to kill himself.
The victim’s neighbor called the police, who later found and
arrested Carbajal.
A jury found Carbajal guilty of five counts of protection
order violation, five counts of violating bail bond conditions,
two counts of burglary, two counts of criminal trespass, one
count of kidnapping, and two counts of harassment by
stalking.
Docket No. 21-5 at 2. Mr. Carbajal also was convicted on two habitual criminal counts
and he was sentenced to a total term of 151.5 years in prison. The judgment of
conviction was affirmed on direct appeal. See id.
Mr. Carbajal asserts five claims in the Amended Application. He contends in
claim one that he was denied due process and that his rights under the Fourth, Fifth,
and Fourteenth Amendments were violated because the Denver District Court lacked
subject matter jurisdiction over his case. In claim two, he contends that admission of
various out-of-court statements at trial violated his confrontation rights under the Sixth
Amendment and the Colorado Constitution as well as his rights to due process and a
2

fair trial under the Fifth and Fourteenth Amendments. In claim three, he contends he
was denied due process and a fair trial in violation of the Fifth and Fourteenth
Amendments because the trial judge was biased against him. Mr. Carbajal contends in
claim four that joinder of the charges and denial of a severance violated his rights to due
process and a fair trial under the Fifth and Fourteenth Amendments. Finally, he
contends in claim five that denial of his motion to compel a psychological examination of
the victim violated his rights to due process and a fair trial under the Fifth and
Fourteenth Amendments.
II. STANDARDS OF REVIEW
The Court must construe the Amended Application and other papers filed by Mr.
Carbajal liberally because he 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 should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Mr. Carbajal bears the burden of proof under § 2254(d). See
3

Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court’s inquiry is straightforward “when the last state court to decide a
prisoner’s federal claim explains its decision on the merits in a reasoned opinion.”
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). “In that case, a federal habeas court
simply reviews the specific reasons given by the state court and defers to those reasons
if they are reasonable.” Id. When the last state court decision on the merits “does not
come accompanied with those reasons” or “consist[s] of a one-word order, such as
‘affirmed’ or ‘denied,’ . . . the federal court should ‘look through’ the unexplained
decision to the last related state-court decision that does provide a relevant rationale
[and] presume that the unexplained decision adopted the same reasoning.” Id. The
presumption may be rebutted “by showing that the unexplained affirmance relied or
most likely did rely on different grounds than the lower state court’s decision, such as
alternative grounds for affirmance that were briefed or argued to the state supreme
court or obvious in the record it reviewed.” Id.
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. See Harrington v.
Richter, 562 U.S. 86, 98-99 (2011). In particular, “determining whether a state court’s
decision resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.” Id. at
98. Thus, “[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
4

contrary.” Id. at 99. Even “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. at 98. 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 [the Court’s] independent
review of the record and pertinent federal law persuades [the Court] that its result
contravenes or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Id. at
1178. “[T]his ‘independent review’ should be distinguished from a full de novo review
of the petitioner’s claims.” Id.
The threshold question the Court must answer under § 2254(d)(1) is whether Mr.
Carbajal seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). Clearly established federal law “refers to the holdings, as opposed to the dicta,
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly

5

established federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1).
See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly
established federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases”; or (b) “the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that]
precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may
not 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 “only if all fairminded jurists would agree that the

6

state court got it wrong.” Stouffer v. Trammel, 738 F.3d 1205, 1221 (10th Cir. 2013)
(internal quotation marks omitted). Furthermore,
[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations. [I]t is not an
unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that
has not been squarely established by [the Supreme] Court.
Richter, 562 U.S. at 101 (internal quotation marks and citation omitted; alterations in
original). 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. at 102. In addition, “review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (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, 562 U.S. at 102 (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.

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Richter, 562 U.S. at 103.
Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the
Court presumes the state court’s factual determinations are correct and Mr. Carbajal
bears the burden of rebutting the presumption by clear and convincing evidence. The
presumption of correctness applies to factual findings of the trial court as well as state
appellate courts. See Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015). The
presumption of correctness also applies to implicit factual findings. See Ellis v.
Raemisch, 872 F.3d 1064, 1071 n.2 (10th Cir. 2017). “The standard is demanding but
not insatiable . . . [because] ‘[d]eference does not by definition preclude relief.’” MillerEl 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 even if Mr. Carbajal demonstrates
the existence of a constitutional violation. “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).” Bland v. Sirmons, 459 F.3d
999, 1009 (10th Cir. 2006); see also Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (“For
reasons of finality, comity, and federalism, habeas petitioners are not entitled to habeas
relief based on trial error unless they can establish that it resulted in actual prejudice.”)
(internal quotation marks omitted); 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
8

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 equipoise as to the harmlessness of the error.” O’Neal, 513
U.S. at 435. The Court makes this harmless error determination based upon a review
of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th
Cir. 2000).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
Cir. 2004).
III. MERITS OF APPLICANT’S CLAIMS
A. Claim One
Mr. Carbajal contends in claim one that he was denied due process and that his
rights under the Fourth, Fifth, and Fourteenth Amendments were violated because the
Denver District Court lacked subject matter jurisdiction over his case. According to Mr.
Carbajal, the judgment of conviction in 10CR3824 is void because charges were filed
against him “in the County Court in a mode not prescribed by Colorado law” and he was
9

reprosecuted for the “identical charges in the District Court without a formal charging
document.” Docket No. 9 at 34. More specifically, Mr. Carbajal contends the Denver
County Court and the Denver District Court failed to follow procedures set forth in Rules
5 and 7 of the Colorado Rules of Criminal Procedure for binding a case over from
county court to district court. He also contends that five other county court cases
(10M10759, 10CR3823, 10CR3825, 10CR3859, and 10CR3875) improperly were
consolidated into case number 10CR3824. Mr. Carbajal argues that the failure to
comply with state law implicates his federal constitutional right to due process because
“the abusive and oppressive prosecution against Mr. Carbajal rises to the level of a
fundamental defect which inherently has resulted in a complete miscarriage of justice,
which is inconsistent with the rudimentary demands of fair process.” Docket No. 9 at
53-54.
The Colorado Court of Appeals reasoned as follows in rejecting Mr. Carbajal’s
jurisdiction claim on direct appeal:
Carbajal contends that the underlying judgment is
“void for want of a valid information.” He seems to argue
that the prosecution filed charges in county court, which
improperly transferred venue and joined the charges into
one case in the district court – all without dismissing the
charges in the county court or filing a valid information in the
district court.
We conclude the district court had jurisdiction over the
case, and the prosecution properly consolidated the case.
We reach this conclusion for several reasons. First, the
district court acquired jurisdiction after the county court
bound the case over to the district court. People v.
Gardner, 250 P.3d 1262, 1270-71 (Colo. App. 2010) (holding
that county courts have the power to bind felony cases over
10

to the district courts). When a county court binds a case
over to the district court, the entire record is transferred.
Crim. P. 5(a)(4)(III). And the felony complaint, when
transferred with the record, “shall be deemed to be an
information if it contains the requirements of an information.”
Crim. P. 7(b)(4). The felony complaint in this case contains
such requirements. See Crim. P. 7(b)(2).
Second, the prosecution properly moved to
consolidate the cases. After the county court bound the
case over, the prosecution moved to amend the complaint
and information to include all of the counts in one case; the
district court granted this motion.
To the extent that Carbajal contends that jurisdiction
was improper because bail was set in the county court, we
reject this contention. See Crim. P. 5(a)(4)(III) (“[The county
court] shall order the defendant bound over to the
appropriate court of record for trial. In appropriate cases,
the defendant may be . . . continued on bail by the county
court . . . .”).
Docket No. 21-5 at 22-23.
Mr. Carbajal is not entitled to relief with respect to claim one because the claim
challenges the state court’s determination of jurisdiction under state law and the state
court’s interpretation of state law “binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Although Mr. Carbajal
strongly disagrees with the state court’s interpretation of the relevant state law rules of
criminal procedure, “it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Instead, “[i]n conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws, or treaties of the United States.”
Id. at 68; see also Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (“We have long
11

recognized that ‘a mere error of state law’ is not a denial of due process.”). Thus, in
Lambert v. Workman, 594 F.3d 1260 (10th Cir. 2010), the United States Court of
Appeals for the Tenth Circuit rejected a habeas corpus applicant’s claim challenging the
state court’s jurisdiction to abrogate a felony conviction. Relying in part on the
Supreme Court’s decision in Estelle v. McGuire, the Tenth Circuit reasoned that “[t]he
OCCA’s understanding of its own authority in the state appellate process is a matter of
state law and, as such, generally beyond the purview of federal habeas review.” Id. at
1264.
Mr. Carbajal attempts to distinguish Lambert because that case dealt with
appellate jurisdiction, but the relevant principle regarding state court jurisdiction is
applicable to all state courts. In addressing a challenge similar to the claim Mr.
Carbajal is asserting, the Tenth Circuit noted “[i]t is well settled that the sufficiency of an
indictment or information in a state court is a matter for the court of the state to
determine. Their determination is final and in the absence of a denial of equal
protection of the laws, it will not be reviewed by the courts of the United States.” Cole
v. Van Horn, 67 F.2d 735, 736 (10th Cir. 1933).
Despite this clear authority prohibiting federal habeas corpus review of the
jurisdiction claim, Mr. Carbajal contends the state court’s failure to comply with state
rules of criminal procedure in his case was so egregious that it rises to the level of a
fundamental defect or structural error in violation of due process. It is true that “the
United States Supreme Court has suggested that, in rare circumstances, a
determination of state law can be ‘so arbitrary or capricious as to constitute an
12

independent due process . . . violation.’” Cummings v. Sirmons, 506 F.3d 1211, 1237
(10th Cir. 2007) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). However, Mr.
Carbajal’s factual allegations regarding the commencement of case number 10CR3824
and his conclusory assertions regarding a fundamental defect or structural error do not
persuade the Court that this is the rare case in which due process has been violated.
Furthermore, the Supreme Court’s “suggestion” regarding the existence of an
independent due process violation in rare circumstances is not clearly established
federal law for the purposes of the Court’s review under § 2254(d)(1). See House, 527
F.3d at 1016. Mr. Carbajal also fails to demonstrate the state court’s decision
regarding jurisdiction was based on an unreasonable determination of the facts under
§ 2254(d)(2).
For these reasons, Mr. Carbajal is not entitled to relief with respect to claim one.
B. Claim Two
Mr. Carbajal contends in claim two that admission of various out-of-court
statements violated his confrontation rights under the Sixth Amendment and the
Colorado Constitution as well as his rights to due process and a fair trial under the Fifth
and Fourteenth Amendments. Claim two lacks merit to the extent the claim is
premised on an alleged violation of the Colorado Constitution because, as noted above,
relief under § 2254 is not available for violations of state law. See Estelle, 502 U.S. at
67-68.
Mr. Carbajal specifically argues in claim two that, despite his repeated objections,
the trial court improperly admitted statements made by the victim, as well as
13

descriptions of the victim’s actions and demeanor, through the testimony of other
witnesses. The victim did not testify at trial. Mr. Carbajal further argues in claim two
that the entire case against him hinged on these out-of-court statements and that the
prosecution emphasized the victim’s out-of-court statements in their opening statement
and closing argument. The specific testimony and statements on which claim two is
premised are the following:
● Anna Banales’ testimony that she heard screams (“Ana” and “Help me”) and
someone crying, and that she heard the victim say “He’s going – someone’s going to
get killed.”
● Irma Holguin’s testimony that the victim was upset about her missing dog and
that the victim told her Mr. Carbajal broke the window at her residence.
● Vickie Baylon-Rawlins’ testimony that the victim stated “He’s going to kill
himself. I thought he was going to kill me,” and that the victim was screaming and
crying.
● Detective Larry Black’s testimony that the victim had received multiple
telephone calls from Mr. Carbajal and that Mr. Carbajal knew the victim was in a hotel
with an investigator.
● Investigator Richard Harris’ testimony that Mr. Carbajal told the victim who she
was with in the hotel as well as her reaction to that information.
● Investigator Jeff Watts’ testimony that the victim was frantic, hysterical, and
crying during a telephone call on August 26 and stated that Mr. Carbajal had broken in
with a knife and threatened to kill himself; and that there was a bloody tissue used by
14

Mr. Carbajal that was not collected by responding officers because the victim knew who
the perpetrator was.
● Detective Michael Reifsteck’s testimony about the victim’s statements
concerning a burglary, that Mr. Carbajal may have been responsible, and that he was
subject to an active restraining order.
The right of an accused to confront the witnesses against him is guaranteed by
the Sixth Amendment to the United States Constitution and applies in both federal and
state prosecutions. See Stevens v. Ortiz, 465 F.3d 1229, 1235 (10th Cir. 2006). “The
central concern of the Confrontation Clause is to ensure the reliability of the evidence
against a criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of fact.” Maryland v. Craig, 497 U.S. 836, 845
(1990).
In Crawford v. Washington, 541 U.S. 36, 68-69 (2004), the United States
Supreme Court held that the Confrontation Clause bars the introduction into evidence of
out-of-court statements that are testimonial in nature unless the witness is unavailable
and the defendant had a prior opportunity to cross-examine the witness. However, the
Confrontation Clause has no application to out-of-court statements that are not
testimonial. See Whorton v. Bockting, 549 U.S. 406, 420 (2007). A statement is
testimonial if the statement has a “primary purpose” of “establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecution.” Davis v. Washington, 547
U.S. 813, 822 (2006).
The Colorado Court of Appeals addressed the federal Confrontation Clause
15

claim on direct appeal and concluded the trial court properly admitted testimony relating
the victim’s out-of-court statements and describing her actions. The state court initially
determined the challenged statements were not hearsay under Colorado law, finding
that testimony regarding the victim screaming, crying, and uttering commands were not
“statements” and that the actual statements in question were not offered to prove the
truth of the matter asserted. See Docket No. 21-5 at 9-16. The state court then
determined Mr. Carbajal’s federal constitutional rights were not violated because the
Confrontation Clause is not violated by admission of non-hearsay statements. See id.
Although the specific testimony to which Mr. Carbajal objects in the Amended
Application includes testimony not specifically addressed by the Colorado Court of
Appeals, apparently because Mr. Carbajal challenges more testimony in the Amended
Application than he did in his opening brief on direct appeal, the additional testimony in
question also was admitted at trial because it was not hearsay.
It does not appear that Mr. Carbajal is challenging the state court’s rejection of
his Confrontation Clause claim under § 2254(d)(2). In any event, the Court finds that
the state court’s decision was not based on an unreasonable determination of the facts
in light of the evidence presented.
Mr. Carbajal also fails to demonstrate the state court’s rejection of his
Confrontation Clause claim is contrary to or an unreasonable application of clearly
established federal law under § 2254(d)(1). In fact, the state court’s decision is entirely
consistent with clearly established federal law because, even if the Court assumes
some of the statements to which Mr. Carbajal objects were “testimonial,” the
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Confrontation Clause “does not bar the use of testimonial statements for purposes other
than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. To
the extent Mr. Carbajal argues the state court erred in concluding the statements in
question were not hearsay under Colorado law and were admitted for purposes other
than establishing the truth of the matter asserted, the argument lacks merit because the
Court cannot review that state law determination. See Estelle, 502 U.S. at 67-68. In
light of that state-law determination, Mr. Carbajal fails to demonstrate the state court
ruling on the constitutional question “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. As a result, Mr. Carbajal is not
entitled to relief with respect to his Confrontation Clause argument in claim two.
Finally, Mr. Carbajal also contends in claim two that admission of the victim’s outof-court statements violated his federal constitutional right to due process. In
particular, he contends that presentation of the victim’s out-of-court statements was
unfair because the prosecution prevented the victim from testifying, which allegedly
prevented Mr. Carbajal from presenting an entrapment and actual innocence defense.
The Court reiterates that “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions,” Estelle, 502 U.S. at 6768, and “that ‘a mere error of state law’ is not a denial of due process.” Engle, 456 U.S.
at 121 n.21. Thus, “[h]abeas relief may not be granted on the basis of state court
evidentiary rulings unless they rendered the trial so fundamentally unfair that a denial of
constitutional rights results.” Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir. 2000).
17

A proceeding is fundamentally unfair so as to deprive the defendant of due process of
law if it is “shocking to the universal sense of justice.” United States v. Russell, 411
U.S. 423, 432 (1973) (internal quotation marks omitted). Stated another way,
introduction of evidence fails the due process test of “fundamental fairness” if the
evidence “is so extremely unfair that its admission violates fundamental conceptions of
justice.” Dowling v. United States, 493 U.S. 342, 352 (1990) (internal quotation marks
omitted). As these tests demonstrate, the Supreme Court has “defined the category of
infractions that violate ‘fundamental fairness’ very narrowly.” Id.
“[B]ecause a fundamental-fairness analysis is not subject to clearly definable
legal elements, when engaged in such an endeavor a federal court must tread gingerly
and exercise considerable self restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th
Cir. 2002) (internal quotation marks omitted). The Court’s “[i]nquiry into fundamental
unfairness requires examination of the entire proceedings, including the strength of the
evidence against the petitioner.” Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002)
(per curiam).
The Colorado Court of Appeals did not explicitly address the due process
component of claim two. However, as noted above, “[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.” Richter, 562 U.S. at 99; see also Early
v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (an adjudication on the merits “does not
require citation of [Supreme Court] cases – indeed, it does not even require awareness
18

of [Supreme Court] cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”). The parties do not argue that the due process
component of claim two was not fairly presented to the state courts and there is no
showing to overcome the presumption that the state court adjudicated the claim on the
merits. Therefore, the Court considers the due process component of claim two under
the deferential standards in § 2254(d).
Mr. Carbajal fails to demonstrate that the decision of the Colorado Court of
Appeals regarding the due process component of claim two is either contrary to or an
unreasonable application of clearly established federal law or was based on an
unreasonable determination of the facts in light of the evidence presented. He does
not cite any contradictory governing law set forth in Supreme Court cases or any
materially indistinguishable Supreme Court decision that would compel a different
result. See House, 527 F.3d at 1018. He also fails to demonstrate that the state
court’s ruling “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.”
Richter, 562 U.S. at 103. Based on the Court’s review of the entire proceedings, the
Court cannot conclude that admission of the victim’s out-of-court statements and
descriptions of her actions and demeanor rendered Mr. Carbajal’s trial fundamentally
unfair. As a result, the Court finds that Mr. Carbajal also is not entitled to relief with
respect to the due process component of claim two.
C. Claim Three
Mr. Carbajal contends in claim three that he was denied due process and a fair
19

trial in violation of the Fifth and Fourteenth Amendments because the trial judge was
biased against him. He asserts in support of claim three that he filed his first motion to
recuse prior to trial on January 24, 2011, alleging the trial judge had repeatedly attacked
and demeaned him in front of the jury in a separate criminal case in December 2010.
He asserts that he filed a second motion to recuse after trial in case number 18CR3824
because the trial judge exhibited bias against him during trial by engaging in a pattern of
ex parte communications, yelling at him, interfering with his presentation of the defense,
allowing the prosecution to present inadmissible evidence, and allowing the prosecution
to proceed with various charges that were not supported by the evidence. The second
motion to recuse and a supplement to the motion were filed on February 6, 2012, and
denied the same day. See Docket No. 21-1 at 28.
Mr. Carbajal raised the judicial bias claim on direct appeal. His arguments in
“Appellant’s Opening Brief” filed by counsel, Docket No. 21-2, and in his pro se reply
brief captioned “Mr. Carbajal’s Amended Reply Br[ie]f,” Docket No. 21-4, were premised
solely on the denials of the motions to recuse filed on January 24, 2011 and February 6,
2012. The Colorado Court of Appeals relied on state law to conclude the trial court did
not improperly deny the motions to recuse. In particular, the state court reasoned as
follows:
We conclude the court did not improperly deny
Carbajal’s motions to recuse for several reasons. First,
Carbajal did not file the two required affidavits with his first
motion to recuse. § 16-6-201(3).
Second, he did not file the first motion within fourteen
days of the case being assigned to the court or show good
20

cause for filing later. Crim. P. 21(b)(1). Indeed, the court
held a hearing to address the motion and recorded in the
minute orders that it denied the motion as untimely.
Third, because Carbajal did not provide a transcript
from this hearing, we presume the transcript supports the
trial court’s ruling. People v. Portillo, 251 P.3d 483, 484
(Colo. App. 2010).
Fourth, to the extent that Carbajal contends the court
improperly denied his second motion to recuse, we conclude
that it was untimely. He filed it after the trial was complete
and did not show good cause for the late filing. See Crim.
P. 21(b)(1).
Docket No. 21-5 at 17.
Respondents argue the judicial bias claim is procedurally barred because the
Colorado Court of Appeals rejected the claim on independent and adequate state
grounds. Respondents previously raised the same argument in their Pre-Answer
Response, Docket No. 21, but the Court was unable to resolve the issue at that time.
Now, after reviewing the entire state court record, it is clear that the judicial bias claim
Mr. Carbajal presents as claim three in the Amended Application is the same claim he
raised on direct appeal and is procedurally barred.
Federal courts “do not review issues that have been defaulted in state court on
an independent and adequate state procedural ground, unless the default is excused
through a showing of cause and actual prejudice or a fundamental miscarriage of
justice.” Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998). Application of this
procedural default rule in the habeas corpus context is based on comity and federalism
concerns. See Coleman v. Thompson, 501 U.S. 722, 730 (1991).

21

“A state procedural ground is independent if it relies on state law, rather than
federal law, as the basis for the decision.” English v. Cody, 146 F.3d 1257, 1259 (10th
Cir. 1998). A state procedural ground is adequate if it “was firmly established and
regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks
omitted).
As demonstrated in the excerpt above, the Colorado Court of Appeals relied on
various state law rules in rejecting Mr. Carbajal’s judicial bias claim. First, the state
court determined Mr. Carbajal failed to file the necessary affidavits that must
accompany a motion to disqualify a judge. See Colo. Rev Stat. § 16-6-201(3); Colo. R.
Crim. P. 21(b); People v. Grenemyer, 827 P.2d 603, 605 (Colo. App. 1992). The state
court also determined Mr. Carbajal failed to file the motions in a timely manner or to
show good cause for the late filing. See Colo. R. Crim. P. 21(b); People v. District
Court, 560 P.2d 828, 830-31 (Colo. 1977). Finally, the state court determined Mr.
Carbajal failed to provide a transcript of the relevant hearing on the first motion, which
meant the state court must presume the record supports the trial court’s conclusions.
See People v. Portillo, 251 P.3d 483, 484 (Colo. App. 2010).
Mr. Carbajal bears the burden of demonstrating the rules identified by the
Colorado Court of Appeals are not independent and adequate state procedural rules.
See Fairchild v. Workman, 579 F.3d 1134, 1143 (10th Cir. 2009). He fails to do so.
Instead, he takes issue with the state court’s determination that he filed to comply with
the procedural rules. However, the Court does not review a state court’s determination
of a state law question. See Estelle, 502 U.S. at 67-68. Therefore, claim three is
22

procedurally defaulted and cannot be considered unless Mr. Carbajal demonstrates
cause and prejudice for the default or that a fundamental miscarriage of justice will
occur if the Court does not review the claim. See Jackson, 143 F.3d at 1317.
To demonstrate cause for his procedural default Mr. Carbajal must show that
some objective factor external to the defense impeded his ability to comply with the
state’s procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). “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].” McCleskey v. Zant, 499 U.S.
467, 493-94 (1991) (internal quotation marks omitted). If Mr. Carbajal 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. Mr. Carbajal’s pro se status does not exempt him
from the requirement of demonstrating either cause and prejudice or a fundamental
miscarriage of justice to overcome a procedural default. See Lepiscopo v. Tansy, 38
F.3d 1128, 1130 (10th Cir. 1994).
Mr. Carbajal contends that, if claim three is procedurally defaulted, he can
demonstrate cause for the default because the state courts interfered with his ability to
pursue his claims on direct appeal by refusing to grant him access to the appellate
record and denying him leave to amend his opening brief when he opted to represent
himself after counsel attempted to sabotage his appeal. This argument lacks merit
23

because, other than the failure to provide a transcript, the procedural defaults relevant
to the motions to recuse occurred prior to the appeal. As a result, the problems that
allegedly interfered with his ability to prosecute his direct appeal did not cause the other
procedural defaults identified by the Colorado Court of Appeals.
Mr. Carbajal also argues that a fundamental miscarriage of justice will occur if the
Court does not consider the merits of claim three because he is actually innocent. The
Court is not persuaded. A credible claim of actual innocence requires Mr. Carbajal “to
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 v. Delo, 513 U.S. 298, 324 (1995).
Mr. Carbajal then “must establish that, in light of new evidence, ‘it is more likely than not
that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.’”
House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup, 513 U.S. at 327). “The
Schlup standard is demanding and permits review only in the extraordinary case.” Id.
at 538 (internal quotation marks omitted).
Mr. Carbajal fails to present any new evidence to support an actual innocence
argument. His conclusory allegations that the victim lied repeatedly and that the
Denver Police Department falsified charges to cover-up their use of excessive force are
not new evidence and do not satisfy the Schlup standard. Therefore, claim three is
procedurally barred.
D. Claim Four
Claim four is a due process claim challenging joinder of the charges and denial of
24

a severance. According to Mr. Carbajal, he
was unfairly convicted in a mode contrary to the United
States Constitution’s due process clause set forth in the 14th
Amendment, through the improper joinder of numerous
charges, that in fairness should have been severed due to
obvious prejudicial effect of having to try those charges
jointly. Indeed, the complexity of these charges and
defenses that applied to the various instances were such,
that it was impossible to afford Mr. Carbajal a fair trial,
especially given the need to testify regarding some instances
and not others, and the numerous defenses that were
antagonistic. In fact, three of the abusively joindered
burglaries charged were dismissed or resulted in acquittal,
due to the complete lack of evidence; thus, giving rise to a
retroactive misjoinder.
Docket No. 9 at 112-13.
The Colorado Court of Appeals reasoned as follows in rejecting Mr. Carbajal’s
claim that improper joinder of the charges denied him a fair trial:
Multiple counts or offenses may be joined in one trial
if they are based on a series of acts arising from the same
criminal episode. Crim. P. 8(a).
The trial court has the discretion to sever or join the
counts. People v. Aalbu, 696 P.2d 796, 806 (Colo. 1985).
When a court decides to join counts in one trial, it only
abuses its discretion if the defendant shows that the joinder
actually prejudices him. Id.; People v. Bondsteel, 2015
COA 165, ¶ 33 (“[A] defendant must first show actual
prejudice, not just that ‘separate trials might afford the
defendant a better chance of acquittal.’”) (citation omitted).
At a motions hearing, Carbajal primarily asserted that
joining the offenses would cause the jury to convict on some
counts based on the overall evidence rather than the
evidence for a particular count. He conceded that “some of
the incidents have some common basis, and some common
scheme.” Throughout his argument to the trial court, he did
not cite to legal authority. The trial court denied the motion
25

at the hearing and again when Carbajal raised it at trial. It
noted that “evidence is often prejudicial, or it would not be
relevant . . . .” And it ultimately found that, “given this is a
single criminal episode,” any prejudice is “minor.”
We conclude the court did not abuse its discretion
because Carbajal did not show how a single trial on all of the
issues would be unduly prejudicial. See Aalbu, 696 P.2d at
805 (stating that joinder is permitted if the crimes were
committed “at different times and places but constitut[e] part
of a schematic whole”).
Docket No. 21-5 at 18-19 (alterations in original).
Mr. Carbajal contends, and Respondents do not dispute, that claim four was
raised on direct appeal as a federal constitutional claim. Furthermore, there is no
indication that the Colorado Court of Appeals did not adjudicate the merits of the
misjoinder claim. Therefore, the Court reviews claim four under the deferential
standards of § 2254(d).
To the extent Mr. Carbajal’s misjoinder claim is premised on an asserted violation
of Colorado state law, the claim lacks merit because he is not entitled to relief pursuant
to § 2254 unless he can demonstrate a violation of his federal constitutional rights.
See Estelle, 502 U.S. at 67-68.
With respect to the federal constitutional argument in claim four, Mr. Carbajal is
not entitled to relief under § 2254(d)(1) because there is no clearly established federal
law holding that improper joinder of charges violates the United States Constitution. In
United States v. Lane, 474 U.S. 438, 446 n.8 (1986), the Supreme Court noted in a
footnote that “misjoinder would rise to the level of a constitutional violation only if it
results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair
26

trial.” However, the footnote in Lane regarding misjoinder is dicta. See Collins v.
Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). As noted above, 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. “The Supreme Court has never held that a trial court’s failure to provide separate
trials on different charges implicates a defendant’s right to due process.” Collins v.
Uribe, 564 F. App’x 343, 343 (9th Cir. 2014). As a result, any argument that the
decision of the Colorado Court of Appeals is contrary to or an unreasonable application
of clearly established federal law necessarily fails. See House, 527 F.3d at 1018
(noting that the absence of clearly established federal law ends the Court’s inquiry
pursuant to § 2254(d)(1)).
In any event, even if the Court could review claim four using a fundamental
fairness standard, see Lucero v. Kerby, 133 F.3d 1299, 1313-14 (10th Cir. 1998)
(applying fundamental fairness standard to misjoinder claim on habeas review), the
Court cannot conclude that the joinder of offenses rendered Mr. Carbajal’s trial
fundamentally unfair in violation of due process. Based on the Court’s review of the
entire state court record, the Court is not persuaded that joinder of the charges at Mr.
Carbajal’s trial resulted in a proceeding that is “shocking to the universal sense of
justice.” Russell, 411 U.S. at 432 (internal quotation marks omitted).
Finally, the Court concludes that the state court’s rejection of claim four was not
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)(2). The state court determined
27

the charges properly were joined in a single trial because all of the charges arose from
a single criminal episode. That factual determination regarding a single criminal
episode is presumed correct and Mr. Carbajal bears the burden of rebutting the
presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Based
on the Court’s review of the state court record, it is readily apparent that the state
court’s factual determination is reasonable because all of the charges arose from Mr.
Carbajal’s continued stalking of a single victim over a period of a few months.
Therefore, Mr. Carbajal is not entitled to relief under § 2254(d)(2) with respect to claim
four.
E. Claim Five
Mr. Carbajal contends in claim five that his rights to due process and a fair trial
under the Fifth and Fourteenth Amendments were violated when the trial court denied
his motion to compel a psychological examination of the victim. According to Mr.
Carbajal, denial of the motion resulted in a deprivation “of his constitutional right to
material evidence concerning [the victim’s] mental condition and severe brain injuries,
that would have assisted Mr. Carbajal to properly impeach [the victim], and illustrate the
basis for her repeated false statements and delusional account of events.” Docket No.
9 at 130. He maintains that the evidence he sought was critical “because the
Prosecution’s entire case was built on [the victim’s] statements and actions with law
enforcement, that would have been entirely discredited based on evidence of her
mental and physical condition that caused her to fabricate stories, and enhanced her
propensity for fraud.” Id. at 137.
28

“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986)
(citations and internal quotation marks omitted). Of course,
[w]hile the Constitution thus prohibits the exclusion of
defense evidence under rules that serve no legitimate
purpose or that are disproportionate to the ends that they are
asserted to promote, well-established rules of evidence
permit trial judges to exclude evidence if its probative value
is outweighed by certain other factors such as unfair
prejudice, confusion of the issues, or potential to mislead the
jury.
Holmes v. South Carolina, 547 U.S. 319, 326 (2006); see also Crane, 476 U.S. at 68990 (stating that “the Constitution leaves to the judges who must make these decisions
‘wide latitude’ to exclude evidence that is ‘repetitive . . ., only marginally relevant’ or
poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’”).
Ultimately, “to establish a violation of the right to compulsory process, a fair trial
or due process, a defendant must show a denial of fundamental fairness.” Richmond
v. Embry, 122 F.3d 866, 872 (10th Cir. 1997). In determining whether Mr. Carbajal can
demonstrate a denial of fundamental fairness in the specific context of his claim that his
constitutional right to present a complete defense was violated, the Court
first examine[s] whether that testimony was relevant, and if
so, whether the state’s interests in excluding the evidence
outweighed Mr. [Carbajal’s] interests in its admittance. This
inquiry includes an examination as to whether more
traditional factors such as prejudice, issue and jury confusion
weigh in favor of excluding the testimony. Second, [the
29

Court] examine[s] whether the excluded testimony was
material – whether it was of such an exculpatory nature that
its exclusion affected the trial’s outcome.
Id.
The Colorado Court of Appeals rejected Mr. Carbajal’s claim challenging the trial
court’s denial of his motion to compel a psychological examination of the victim. The
state court explained its reasoning as follows:
Carbajal filed a motion to compel a physical and
psychological examination of the victim. In his motion,
Carbajal alleged the following:
● The victim was in a motorcycle accident two
years earlier, and she “may be suffering from
potential TBI (Traumatic Brain Injury) in addition to
other psychological disorders.” (Emphasis
added.)
● The victim “attempted to commit suicide three
times” while dating Carbajal.
● The victim has “delusional spells.”
● The victim has “lied throughout the
investigation.”
● An involuntary examination is necessary
because “there is medical and mental health
evidence that will support or establish a link
between [the victim’s] propensity to lie, [and] to a
physical condition or psychological disorder.”
The court denied the motion, finding that Carbajal did
not demonstrate a compelling need.
Carbajal moved for an involuntary examination
because he contends an examination would show that the
motorcycle accident caused erratic and delusional behavior,
memory loss, and the victim’s propensity to lie.
30

But Carbajal’s motion was based only on speculation that
the victim “may” have suffered from a disorder to which he
hoped to attribute the victim’s behavior. The motion did not
show that an examination would produce material evidence.
See Chard, 808 P.2d at 353.
Docket No. 21-5 at 20-21 (alterations in original).
The Colorado Court of Appeals did not explicitly address claim five as a federal
constitutional claim. However, the Court reiterates that, “[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.” Richter, 562 U.S. at 99;
see also Early, 537 U.S. at 8 (an adjudication on the merits “does not require citation of
[Supreme Court] cases – indeed, it does not even require awareness of [Supreme
Court] cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.”). Therefore, the Court considers the state court’s rejection of claim
five under the deferential standards in § 2254(d).
Mr. Carbajal is not entitled to relief on claim five under the “contrary to” clause of
§ 2254(d)(1). Although he contends the trial court applied the wrong legal standard in
denying his motion, he does not contend the Colorado Court of Appeals applied the
wrong standard on appeal and the Court reviews “the last related state-court decision
that does provide a relevant rationale.” Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018). Mr. Carbajal also does not identify any materially indistinguishable Supreme
Court decision that would compel a different result. See House, 527 F.3d at 1018.

31

In addition, Mr. Carbajal fails to demonstrate the state court’s ruling on claim five
was based on an unreasonable determination of the facts in light of the evidence
presented under § 2254(d)(2). The Colorado Court of Appeals determined that Mr.
Carbajal failed to allege facts that demonstrate an examination of the victim would
produce material evidence. Mr. Carbajal does not provide clear and convincing
evidence to rebut the presumption of correctness that attaches to this factual finding.
See 28 U.S.C.
§ 2254(e)(1). In fact, he still fails to demonstrate the evidence he sought was anything
more than speculative because he argues in the Amended Application only that the
victim’s “psychological disorders and medical issues may have played a key role in the
fabrication of these charges” and that “a psychological evaluation would have allowed a
medical expert to determine whether [the victim] was indeed suffering from a brain
injury, which caused her to fabricate or err in her recollection of the events leading to
the charges in this matter.” Docket No. 9 at 135 (emphasis added). The Court notes
that Mr. Carbajal also fails to demonstrate the victim’s assertions to law enforcement
were false or contrary to the evidence presented at his trial.
Finally, Mr. Carbajal fails to demonstrate the state court’s ruling on claim five was
an unreasonable application of clearly established federal law under § 2254(d)(1). In
light of the factual determination that the request to compel a psychological examination
was based only on speculation that the victim “may” have suffered from a disorder, it
was reasonable to conclude that Mr. Carbajal cannot demonstrate his trial was
fundamentally unfair. Furthermore, the victim did not testify at trial and her credibility
32

was not a significant issue. Instead, all of the offenses were proven beyond a
reasonable doubt through testimony from witnesses other than the victim. As a result,
the Court is not persuaded that the evidence Mr. Carbajal sought to present, even
assuming it existed, “was of such an exculpatory nature that its exclusion affected the
trial’s outcome.” Richmond, 122 F.3d at 872.
Ultimately, Mr. Carbajal is not entitled to relief with respect to claim five because
he fails to demonstrate the state court ruling “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Richter, 562 U.S. at 103.
IV. CONCLUSION
For the reasons discussed in this order, Mr. Carbajal is not entitled to relief.
Accordingly, it is
ORDERED that the Motion for Leave to Correct Petitioner’s Traverse Via Errata
Sheet, Docket No. 64, is granted. It is further
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254, Docket No. 9, is denied and this case is dismissed with prejudice.
It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c).

33

DATED October 8, 2019.
BY THE COURT:

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

34