Aguilar v. Zupan
Decision Date | 25 February 2016 |
Docket Number | Civil Action No. 15-cv-01945-RM |
Parties | ANTONIO AGUILAR, Applicant, v. DAVID ZUPAN, and COLORADO STATE ATTORNEY GENERAL, Respondents. |
Court | U.S. District Court — District of Colorado |
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.
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 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 weredenied and the appeal is currently pending. (See ECF No. 12-1 at 9-10, ECF No. 12-15, 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:
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.
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).
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:
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).
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.
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