Quintano v. Hartley

• Decision Date: 17 May 2013
• Docket Number: Civil Action No. 11-cv-02191-RM
• Parties: ROBERT E. QUINTANO, Applicant, v. STEVE HARTLEY, Warden, A.V.C.F., and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

ROBERT E. QUINTANO, Applicant, v. STEVE HARTLEY, Warden, A.V.C.F. and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 11-cv-02191-RM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Dated: May 17, 2013

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

Raymond P. Moore, District Judge.

The matter before the Court is an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 1. The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).

I. BACKGROUND

On direct appeal of Applicant's conviction, the Colorado Supreme Court (CSC) summarized the underlying facts and proceedings as follows:

On October 1, 1998, Robert E. Quintano was arrested and charged in Arapahoe County with, among other things, five counts of sexual assault on a child, in violation of section 18-cv-405(1), C.R.S. (2004). All five offenses occurred on the same day and against the same victim, M.H. The jury convicted Quintano of three of five counts.

Quintano was a long time friend of M.H.'s family. M.H. was fourteen-years-old at the time of the alleged sexual assaults; Quintano was thirty eight. On July 25, 1998, the evidence indicates that he appeared at M.H.'s aunt's house where M.H. was babysitting. While the two were wrestling playfully in the livingroom of the house, Quintano grabbed M.H's left breast at least ten times, telling her "this is your day to get picked on." Quintano persisted, even though she admonished him to stop several times. M.H. pushed Quintano away and tried to escape.

The encounter then moved outside the house after Quintano carried M.H. to the poolside. At the pool, he grabbed her crotch area several times. Quintano then placed his hand up M.H.'s shorts and touched her vaginal area several times. There was no digital penetration. She pushed him away, but he continued by grabbing her leg, and then pushed her into the pool with his hand resting on her crotch area.

The matter reconvened inside the house. After Quintano pushed M.H. into the pool, she got out and entered the house where she proceeded to the bathroom to dry off. Quintano followed her there and again grabbed her breasts four to five times. M.H. exited the bathroom to use the telephone. Quintano followed her back to the bathroom and grabbed her buttocks, for about two to three minutes, telling her "do you know what I want to do to you? I want to eat your pussy." She tried to leave the bathroom but the defendant kept pulling her back. Lastly, the encounter relocated to the living room where Quintano bit M.H.'s left breast. M.H. could not recall specifically how long the various encounters lasted.

Quintano v. People, 105 P.3d 585, 588-89 (Colo. 2005).

Mr. Quintano was convicted by a trial jury of three counts of sexual assault on a child and was sentenced on October 16, 2000, to sixteen years of incarceration in the DOC. Application, ECF No. 1, at 2 and Pre-Answer Resp., ECF No. 16-27 at 14.¹ On July 3, 2003, Mr. Quintano's sentence was affirmed on appeal, but the mandatory parole portion of the sentence was vacated and the case was remanded with directions to issue an amended mittimus indicating that Mr. Quintano is subject to discretionary parole. People v. Quintano, No. 00CA2196 (Colo. App. July 3, 2003). Mr. Quintano petitioned the CSC for certiorari review, the Court granted certiorari ontwo issues, but the CSC ultimately affirmed the conviction on January 18, 2005. Quintano v. People, 105 P.3d 585 (Colo. Jan. 18, 2005).²

II. HABEAS CLAIMS

Mr. Quintano filed the instant action on August 22, 2011, asserting nine claims for relief. The claims are as follows:

1) State district court failed to hold an evidentiary hearing in the postconviction motion proceeding in violation of due process rights;

2) Sentence is excessive, unjustified, and disproportionate compared to other like offenders' sentences;3) Prosecution presented questionable testimony at trial;

4) Violation of Colo. Rev. Stat. §§ 16-4-103 and 16-4-107 in not proceeding to trial within ninety days;

5) Ineffective trial and appellate counsel;

6) Constitutional violations that are ripe for review;

7) Cumulative error;

8) State district court allowed the prosecution to present numerous alleged acts without identifying the corresponding count resulting in a conviction based on uncharged acts and violating due process rights; and

9) Double jeopardy violation.

On October 5, 2011, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file a Pre-Answer Response and address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses. Respondents filed a Pre-Answer Response on November 15, 2011, and Applicant filed a Reply on December 29, 2011. Although Respondents argued that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d), District Judge R. Brooke Jackson found that the time not tolled for purposes of § 2244(d) is only 194 days and the Application has been filed within the one-year time limitation requirement. District Judge Jackson also determined that Claims One, Four, and Six failed to state a cognizable federal habeas claim and that Claims Two, Three, and Seven and the ineffective appellate counsel claims in Claim Five are procedurally defaulted. Pursuant to District Judge Jackson's April 5, 2012 Order dismissing Claims One through Four, part of Claim Five, Six and Seven, and instructing Respondents to file an answer with respect to Claims Eightand Nine and the ineffective trial counsel claims set forth in the April 5 Order, Respondents filed an Answer, ECF No. 27, on May 18, 2012.

Rather than file a Reply to the Answer, Mr. Quintano filed a Request for Stay and Abeyance seeking leave to return to state court so he could pursue a claim based on Missouri v. Frye. District Judge Jackson denied the request and instructed Mr. Quintano to file a Reply to the Answer by December 10, 2012. Mr. Quintano filed a Reply on December 12, 2012, that only addressed the Court's denial of his request for a stay. Mr. Quintano did not reply to the Answer.

In the December 12 Reply, Mr. Quintano argued that a stay and abeyance for a remand is proper because both Frye and Cooper set forth a new standard of law that he should be allowed to pursue. Neither Missouri v. Frye, 132 S.Ct. 1399 (2012), nor Lafler v. Cooper, 132 S. Ct. 1376 (2012), articulate a new rule of constitutional law. See United States v. Medina, No. 12-3305, 2013 WL 500708, *3 (10th Cir. Feb. 12, 2013) (citing Williams v. United States, 705 F.3d 293 (8th Cir. 2013); In re Arras, No. 12-2195, 2012 WL 7656637, *1 (10th Cir. Dec. 11, 2012). Applicant, therefore, fails to assert a basis for granting a stay and abeyance and now has failed to file a Reply to the Answer within the time allowed.

III. LEGAL STANDARDS

A. Pro Se Standard of Review

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 reliefcan 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, 958 (10th Cir. 2002).

B. 28 U.S.C. § 2254

Section 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 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 pursuant to § 2254(d)(1) is whether 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). The "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits." Cullen v. Pinholster, ---- U.S. ----, 131 S. Ct. 1388, 1398 (2011). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become timebarred or has been disposed of." Greene v. Fisher, ---- U. S. ----, 132 S.Ct. 38, 44 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).

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. 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

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