Litwinsky v. Zavares

• Citation: 132 F.Supp.2d 1316
• Decision Date: 23 January 2001
• Docket Number: No. 99-K-1234.,99-K-1234.
• Parties: Timothy LITWINSKY, Petitioner, v. Aristedes ZAVARAS and The Attorney General of the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

132 F.Supp.2d 1316

Timothy LITWINSKY, Petitioner, v. Aristedes ZAVARAS and The Attorney General of the State of Colorado, Respondents.

No. 99-K-1234.

United States District Court, D. Colorado.

January 23, 2001.

Andrew Burch Reid, Boulder, CO, for Petitioner.

Roger Griffin Billotte, Attorney General's Office Criminal Enforcement Appellate, Denver, CO, for Respondents.

MEMORANDUM OPINION AND ORDER

KANE, Senior District Judge.

This matter is before me on a petition for writ of habeas corpus. The petitioner, Timothy Litwinsky, was convicted of several offenses in 1995 and is currently in the custody of the Colorado Department of Corrections. Litwinsky asserts two claims in this action. For the reasons stated below, Litwinsky's petition is granted in part and denied in part.

I. PROCEDURAL AND FACTUAL BACKGROUND.

During the summer of 1994, Litwinsky dated Sharon Maki, the victim in the underlying criminal case. Their relationship ended in November and Litwinsky moved out-of-state.

In early January 1995, Maki found a note on her car from Litwinsky indicating he had moved back to Colorado and was sorry for any pain he caused her during their break-up. On January 11, 1995, Maki applied for a temporary restraining order against Litwinsky in Arapahoe County. The complaint contained the following pre-printed language:

The Defendant has attacked, beaten, molested, or threatened the Plaintiff with serious bodily harm, and the Plaintiff fears for his/her safety and well-being and believes the Defendant will continue his/her actions unless he/she is restrained by the Court.

Maki completed the form by writing a more detailed description of Litwinsky's conduct:

After stealing my 2nd car and robbing my apartment, Tim was requesting that we get back together. I refused and he threatened my life. During our relationship he threatened to hurt me and yelled, swore, and called me names often. He left the State, but now he is back and he has been watching me, leaving notes for me and writing me.

In a questionnaire attached to the complaint, Maki also indicated that Litwinsky used alcohol and drugs and he had a "past arrest or confinement history." The restraining order was served on Litwinsky later that day.

The next morning, Litwinsky confronted Maki as she was leaving her apartment to go to work. Litwinsky entered her apartment without permission. He showed Maki the handle of a gun tucked in his waistband. Maki told Litwinsky to leave but he put his hand over her mouth and said, "Having me served, real cute. No one is going to tell me whether I can touch you or not." Litwinsky then threw Maki's purse at her and demanded money. Maki gave him about $10 and tried to call "911." Litwinsky disabled the telephone. Maki tried to escape but Litwinsky physically stopped her. When she started screaming, Litwinsky punched her twice and continued to demand money.

In the meantime, when Maki failed to arrive at work, her mother called the police. When the police arrived at Maki's apartment, Litwinsky tried to hide the gun, which turned out to be a toy. Litwinsky was arrested and charged with: (1) second-degree kidnaping, in violation of Colo.Rev.Stat. § 18-3-302(1); (2) aggravated robbery, in violation of Colo.Rev. Stat. § 18-4-302(1)(d); (3) first-degree burglary, in violation of Colo.Rev.Stat. § 18-4-202(1); (4) assault in the third degree, in violation of Colo.Rev.Stat. § 18-3-204; (5) violation. of a restraining order, in violation of Colo.Rev.Stat. § 18-6-803.5(1); and (6) criminal mischief, in violation of Colo.Rev.Stat. § 18-4-501(1).

Before the trial began in September 1995, Litwinsky filed a motion in limine to prohibit evidence of any prior bad acts under Colo.R.Evid. 404(b). The trial court granted the motion. During the trial, the prosecution moved to admit the restraining order as well as the underlying complaint and questionnaire. There were various discussions about the admissibility of these documents. The documents were eventually admitted but the references, in the complaint, to Litwinsky's "stealing [Maki's] 2nd car" and "robbing [her] apartment" were redacted. The trial court did not give a limiting instruction regarding the other prior bad acts referred to in the documents when they were admitted.

At the conclusion of the trial, the jury acquitted Litwinsky on the kidnaping charge but found him guilty of the lesser offense of false imprisonment. The jury also found Litwinsky guilty on charges of aggravated robbery, first-degree burglary, third-degree assault, and violation of the restraining order. The jury deadlocked on the charge of criminal mischief and the prosecution dismissed that count.

In December 1995, Litwinsky was sentenced to both concurrent and consecutive terms of imprisonment. During the sentencing, the trial court stated as follows:

For the most part, the Court feels that the offenses are all part and parcel of the same criminal episode. And, in fact, there is some cross-use and elements in the offenses themselves. The one exception is that the Court finds that the third-degree assault is a separate offense.

The trial court then sentenced Litwinsky to a term of two years in county jail on the assault charge, to run consecutively to the sentences on all of the remaining charges which would run concurrently with respect to each other. Litwinsky received terms of sixteen years on the robbery conviction, twelve years on the conviction for burglary, and one year each on the false imprisonment and violation of a restraining order convictions.

Litwinsky served his jail time for the assault charge with credit for 331 days he had already served. He is presently in the custody of the Colorado Department of Corrections serving the sixteen-year sentence.

Litwinsky appealed his convictions in the state courts on a variety of issues, including the two issues before me in this habeas corpus action. The judgments and sentences were affirmed by the Colorado Court of Appeals in People v. Litwinsky, No. 96CA0149 (Colo.App. April 30, 1998). The Colorado Supreme Court rejected Litwinsky's petition for writ of certiorari on December 7, 1998. The present action was commenced in June 1999 when Litwinsky filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Litwinsky asserts two claims in this case: (1) the trial court subjected him to double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution by failing to merge his conviction for third-degree assault into his conviction for first-degree burglary because third-degree assault is a lesser-included offense of first-degree burglary, and (2) his constitutional right to a fair trial was violated when the court admitted evidence of irrelevant and highly prejudicial prior bad acts.

II. STANDARD OF REVIEW.

In its recent opinion in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the United States Supreme Court clarified the proper standard of review for claims asserted in a petition for writ of habeas corpus. This new standard places strict constraints on my power to grant habeas corpus relief. Where, as in the instant case, a petitioner's claims have been adjudicated on their merits by the state courts,

the writ may issue only if one of the following two conditions is satisfied — the state-court adjudication resulted in a decision that (1) `was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or (2) `involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.' Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams, 120 S.Ct. at 1523; see also Van Woudenberg v. Gibson, 211 F.3d 560, 566 (10th Cir.2000). It is not enough that the state court may have applied the law erroneously. The writ may issue only if it is clear that "the application was also objectively unreasonable." Van Woudenberg, 211 F.3d at 566-67 n. 4 (citing Williams, 120 S.Ct. at 1521-23).

III. DOUBLE JEOPARDY AND THE MERGER DOCTRINE.

The constitutional prohibition against double jeopardy guarantees that no person will twice be put in danger of conviction and punishment for the same offense. U.S. Const. amend. V; Colo. Const. art. II, § 18. The judicially-created doctrine of "merger" has evolved as an aspect of double jeopardy. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court decided the applicable rule:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. 180.

The Colorado Supreme Court adopted the Blockburger test in a series of cases beginning with People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969). Under Colorado law, "a defendant may not be convicted of more than one offense if one offense is a lesser included offense of the other." Armintrout v. People, 864 P.2d 576, 578 (Colo.1993)(en banc)(applying McKenzie).* * The lesser-included offense "merges" into the conviction of the greater offense and the defendant cannot be separately punished for it. People v. Rodriguez, 914 P.2d 230, 286 (Colo. 1996)(en banc). "In order to determine whether one offense is included...