Delmart v. Zupan
| Decision Date | 09 October 2018 |
| Docket Number | No. 16-1503,16-1503 |
| Citation | 906 F.3d 866 |
| Parties | Delmart E.J.M. VREELAND II, Petitioner - Appellant, v. David ZUPAN; The Attorney General of the State of Colorado, Respondents - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Petitioner-Appellant.
Ryan A. Crane, Senior Assistant Attorney General (Cynthia H. Coffman, Attorney General, with him on the brief), Denver, Colorado, for Respondents-Appellees.
Before BACHARACH, KELLY, and MORITZ, Circuit Judges.
Delmart Vreeland II sought relief in federal district court under 28 U.S.C. § 2254, alleging in relevant part that the state trial court violated his Sixth Amendment right to counsel and his Fourteenth Amendment right to due process. The district court rejected both claims and declined to issue a certificate of appealability (COA).
Vreeland later obtained a COA from this court to appeal the district court’s resolution of his Sixth Amendment claim. Pursuant to that COA, he now argues on appeal that the district court erred in denying him relief on that claim. He also asks us for a COA so he can appeal the district court’s denial of his due-process claim.
We agree with the district court that Vreeland fails to demonstrate the state appellate court’s resolution of his Sixth Amendment claim satisfies § 2254(d). That is, Vreeland fails to show that the state appellate court’s decision (1) "was contrary to, or involved an unreasonable application of, clearly established [f]ederal law" or (2) "was based on an unreasonable determination of the facts." § 2254(d)(1)–(2). Thus, we affirm the district court’s order to the extent it denies Vreeland relief on his Sixth Amendment claim. And because we conclude that reasonable jurists wouldn’t find the district court’s resolution of Vreeland’s due-process claim debatable or wrong, we deny his request for a COA on that claim and dismiss that portion of Vreeland’s appeal.
In 2004, Colorado charged Vreeland with various offenses, including sexual exploitation of a child and sexual assault. Vreeland initially retained attorney Declan O’Donnell to represent him. But a week after O’Donnell entered his appearance, he moved to withdraw. In support, O’Donnell accused Vreeland of lying about his identity, using stolen funds to post bond, and skipping bail.
Vreeland then informed the trial court that he was in the process of retaining the services of attorney Thomas Henry. But because Vreeland asserted he had been unable to contact Henry by telephone from the jail, the trial court appointed attorney Juliet Miner to represent him instead. Miner initially accepted the appointment. But two weeks later, she asked the trial court to allow her to withdraw after Vreeland accused her of failing to do what he thought she "need[ed] to be doing." App. vol. 3, 315.
The trial court agreed to continue Vreeland’s preliminary hearing while he obtained replacement counsel. Vreeland then retained attorney Harvey Steinberg, who requested a continuance after the state (1) sought to add additional charges and (2) provided Steinberg with approximately 70 pages of new discovery relating to those additional counts. In response to this request, the trial court expressed frustration with the delay and with Steinberg in particular. Nevertheless, although the court denied Steinberg’s request for a continuance on the original counts, it agreed to "a second setting for" the new counts. Id. at 339. The trial court also agreed to another continuance after Steinberg learned that the out-of-state jail where Vreeland was initially housed had recorded some of Vreeland’s "phone calls with lawyers." Id. at 341.
A little over three months later, Vreeland informed the trial court that Steinberg "need[ed] to withdraw." Id. at 344. Vreeland also informed the trial court that he had lodged a disciplinary complaint against Steinberg based on disagreements over fees and over Steinberg’s alleged refusal to turn over certain discovery. Based on this information, the trial court granted Steinberg’s motion to withdraw.
Vreeland next retained attorney Thomas Henry to represent him. Henry asked the trial court to order a competency evaluation, in part because Vreeland was threatening to stop eating. The court granted Henry’s request. It also vacated the pending December 6, 2005 trial date.
Approximately two months later, Henry learned that Vreeland had accused him of blackmail and extortion. According to Henry, Vreeland went so far as to report these accusations to the sheriff’s department, who in turn relayed them to the Federal Bureau of Investigation at Vreeland’s request. Vreeland "adamantly denie[d]" levying these allegations against Henry. Id. at 419. Nevertheless, Henry—like the three attorneys who came before him—moved to withdraw.
The trial court granted Henry’s motion and asked if Vreeland wanted to have counsel represent him. Vreeland answered in the negative and informed the district court that he wished to represent himself instead. After engaging in a lengthy colloquy with Vreeland and providing him with an Arguello advisement, the court granted Vreeland’s request to proceed pro se. See People v. Arguello , 772 P.2d 87, 95 (Colo. 1989) (). But just before trial was scheduled to begin, Vreeland changed his mind and informed the court that he no longer wanted to proceed pro se; instead, he wished to obtain advisory counsel.
The trial court then allowed attorney Joseph Scheideler to enter his appearance on Vreeland’s behalf. But the court refused to let Scheideler serve as Vreeland’s advisory counsel. Instead, it required Scheideler to enter his appearance as Vreeland’s acting attorney. And it also granted Scheideler’s request for a continuance. In doing so, though, the court expressed its belief that Vreeland was "very obvious[ly]" trying to "manipulat[e]" and "play[ ]" the court. App. vol. 3, 467. Specifically, the trial court agreed with the state that Vreeland appeared to be manufacturing conflicts with his own attorneys in "an attempt to avoid the ultimate resolution of th[e] case before a jury." Id. Likewise, the court didn’t quarrel with the state’s prediction that on the eve of trial, a conflict would "suddenly" arise between Vreeland and Scheideler and "Scheideler w[ould] have to get off the case" as a result. Id. at 465.
These concerns proved prescient. Eleven days before trial was set to begin, the court allowed Scheideler to withdraw based on his representation that Vreeland had filed or was about to file "both a grievance and a ... lawsuit" against Scheideler. Id. at 503. Vreeland then informed the court that he was in contact with another attorney who was willing to represent him but that the new attorney needed a continuance to prepare for trial.
Before ruling on Vreeland’s request for a continuance, the court detailed the procedural history of the case. In particular, it cited the following observations from Vreeland’s competency evaluation: Vreeland, the court said, "appears to use the means available to him in the moment to accomplish his goals, including threatening suicide, threatening litigation, and intimidating those around him." Id. at 532. The court also noted that he is "highly intelligent" and "understands the criminal justice system very well." Id. at 533.
The court then described Vreeland’s "long history of contacts with previous counsel in this case"; his previous decision to proceed pro se; his later change of heart; and the resulting request for a continuance. Id. The trial court reasoned:
[T]he pattern in this case is quite stark and is quite clear: [Vreeland], while having the ability to certainly retain counsel, retains counsel, inescapably enters into a conflict, fires that lawyer, and has to seek to retain new counsel; it[ ] occurred with [Steinberg], it occurred with [Henry], and it lastly occurred with [Scheideler].
Id. at 537–38. Similarly, the court stated:
What the [c]ourt will find is that [Vreeland] is, in fact, highly intelligent. He has a very good understanding of the criminal justice system and this process. This has been reinforced by counsel having to withdraw in previous circumstances. [Vreeland] knows exactly what it takes to have counsel withdraw from a case; complain about them, intimidate them in some way, or allege that you are going to be filing a lawsuit or a grievance.
Id. at 543. Finally, the trial court concluded, Id. at 544. Thus, it denied Vreeland’s request for a continuance.
Four days later, and a week before trial was set to begin, attorney Scott Jurdem filed a conditional entry of appearance. Jurdem stated he was willing to represent Vreeland at trial, but only if the court was willing to grant another continuance. In response, the court stated that although Vreeland was "entitled to have counsel represent him," he was "not entitled to abuse the process" or "the system." App. vol. 4, 563. It then informed Jurdem that he was free to enter his appearance, but that the entry of appearance would "not [be] conditional." Id. at 564. Rather, by entering his appearance, Jurdem would be representing to the court that he was "ready ... to provide competent and effective representation" to Vreeland. Id. Jurdem declined to make such a representation, and the trial court excused him. Vreeland then represented himself at trial. The jury convicted him of various offenses, including sexual exploitation of a child, sexual assault, and contributing to the delinquency of a minor.
Vreeland appealed to the ...
To continue reading
Request your trial
-
United States v. Henson
...82 L.Ed. 1461 (1938) ); accord Tesone v. Empire Mktg. Strategies , 942 F.3d 979, 991 (10th Cir. 2019) ; see also Vreeland v. Zupan , 906 F.3d 866, 876 (10th Cir. 2018) ("[W]hen we say a defendant has waived a particular right, we mean that the defendant has knowingly, voluntarily, and inten......
-
Johnson v. Martin
...Accordingly, it is "not entirely clear whether § 2254(e)(1) ’s presumption applies to our § 2254(d)(2) analysis." Vreeland v. Zupan , 906 F.3d 866, 880 n.3 (10th Cir. 2018). But because Johnson "appears to concede it does, we need not resolve this ‘open question’ " here. Id. (quoting Sharp ......
-
G.W. v. Boulder Valley Sch. Dist.
...30. The Tenth Circuit defines waiver as "the intentional relinquishment or abandonment of a known right." See Vreeland v. Zupan, 906 F.3d 866, 876 (10th Cir. 2018). Plaintiffs' failure to address their § 504 claims or defendants' waiver argument in their reply brief, see Docket No. 116, sup......
-
Hoover v. Clarke
...2008) ("[I]t is Supreme Court precedent, and not Fourth Circuit precedent, to which we look in applying the AEDPA standard of review.")). In Vreeland, the Tenth Circuit reviewed United States Supreme Court precedent on waiver of the right to counsel and found that "the Supreme Court has nev......
-
Trials
...Cir. 2006) (valid waiver when defendant discharged third appointed counsel after court refused to appoint new counsel); Vreeland v. Zupan, 906 F.3d 866, 877 (10th Cir. 2018) (valid waiver when defendant discharged counsel as date of trial approached); U.S. v. Wilson, 979 F.3d 889, 912-14 (1......
-
Review Proceedings
...Cir. 2021) (state court determination that photo lineup was not suggestive not unreasonable determination of facts); Vreeland v. Zupan, 906 F.3d 866, 881-82 (10th Cir. 2018) (state court determination that defendant impliedly waived right to counsel by firing attorneys and filing frivolou......