Rodriguez v. Zavaras

Decision Date01 April 1999
Docket NumberNo. Civ.A. 96-D-2559.,Civ.A. 96-D-2559.
Citation42 F.Supp.2d 1059
PartiesFrank D. RODRIGUEZ, Petitioner, v. Aristedes ZAVARAS, Executive Director of Colorado Department of Corrections, Respondent.
CourtU.S. District Court — District of Colorado

David A. Lane, Miller, Lane & Killmer, L.L.P., Denver, CO, David Lindsey, Denver, CO, for petitioner.

Robert Petrusak, Paul Wolfe, Attorney General's Office, Denver, CO, for respondent.


DANIEL, District Judge.


THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus filed by Frank D. Rodriguez ("Petitioner" or "Rodriguez") on January 27, 1997, which seeks to have his death sentence overturned. This Court's review of the state courts' decisions in this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA" or "the Act"), Pub.L. No. 104 - 132, 110 Stat. 1214 (1996). The AEDPA governs my review of this case since the petition was filed after April 24, 1996, the effective date of the Act.

This Court granted Petitioner's motion to stay execution by Order dated November 14, 1996. The Court also granted Petitioner's motion to proceed under 28 U.S.C. § 1915. Petitioner filed his opening brief on January 27, 1997. The government filed its response on March 7, 1997, and a reply was filed on April 4, 1997. The parties filed additional briefs in connection with the standard of review and Petitioner's claim that he is entitled to an evidentiary hearing.1 A hearing was held on May 30, 1997. In order to complete this opinion, the Court conducted independent legal research on the proper interpretation of the AEDPA and its effect on the standard of review, as well as the substantive issues raised by the petition. Also, the Court spent considerable time reviewing the voluminous record generated during the state court proceeding.

In rendering an opinion on the merits of the petition, I first discuss the pertinent facts of the case, the applicable standard of review, Petitioner's constitutional objections to the standard of review adopted by me and, finally, my decision on the merits of each argument raised by the petition.


Petitioner's death sentence was pronounced following his conviction of first-degree murder, first-degree felony murder, first-degree sexual assault, first-degree aggravated motor vehicle theft, second-degree kidnapping, aggravated robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit first-degree aggravated motor vehicle theft in December, 1986, by a jury in the District Court for the City and County of Denver, Colorado. Record on Appeal, v. 32, pp. 2-6.2 These convictions resulted from the kidnapping, rape, and murder of Lorraine Martelli ("Martelli") on November 14, 1984.3

The evidence presented at trial was that Petitioner, his brother Chris Rodriguez, David Martinez and Patricia Thomas kidnapped Martelli in her own car after she left her work place. They drove Martelli around for several hours during which Petitioner sexually assaulted, raped, beat, sodomized and eventually stabbed her 28 times with a knife, resulting in Martelli's death. Martelli also sustained shallow knife cuts around her neck and face, indicating that she was tortured. Before the killing, Martelli pled for her life and asked what would become of her. Chris Rodriguez said they would probably let her go, but Petitioner said that Martelli had seen their faces and that they had to kill her.

Chris Rodriguez was convicted of first-degree murder and other charges, and was sentenced to life imprisonment. David Martinez was convicted of second-degree kidnapping and sentenced to 20 years. Patricia Thomas was granted immunity in exchange for her testimony and was not charged. A more detailed statement of the facts of the case is contained in the opinions issued by the state court, particularly, People v. Rodriguez, 794 P.2d 965 (Colo.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).

After the conclusion of the guilt phase of the trial, the state district court conducted a habitual criminal proceeding in which the jury, on December 13, 1986, adjudicated Petitioner a habitual offender on the basis of three (3) prior felony convictions pursuant to Colo.Rev.Stat. § 16-13-103 (1984 Supp.). ROA, v. 33, p. 63, II. 6-24.4 Petitioner's previous felony convictions subjected him to mandatory life imprisonment on the basis of a conviction for any of the several felonies committed against Martelli. See Colo.Rev.Stat. § 16-13-101 (1986).

The matter then proceeded to the penalty phase where the state sought the death penalty. Of the seven (7) separate aggravating factors which were alleged pursuant to Colo.Rev.Stat. § 16-11-103, the jury found six (6) proven beyond a reasonable doubt. These included: (1) intentionally killing a kidnap victim (ROA, v.52, p. 746); (2) intentionally causing the death of Martelli in furtherance of a class 3 or greater felony (id. at p. 748); (3) agreeing with others to kill Martelli and intentionally killing her in furtherance of this agreement (id. at p. 749); (4) committing murder while under a sentence of imprisonment for a prior class 3 felony (id. at p. 750); (5) committing murder for the purpose of avoiding or preventing a lawful arrest or prosecution (id. at p. 751); and (6) committing murder in an especially heinous, cruel, or depraved manner (id. at p. 752). See also id. at v. 43, pp. 3-4. The sole aggravating factor that was not found by the jury to be established beyond a reasonable doubt was the allegation that the murder was committed for pecuniary gain. Id. at v. 52, p. 747.

In addition to the aggravating factors that were given to the jury to consider, the jury was instructed that it could consider certain factors in mitigation. They included the roles of Petitioner and his co-defendants in the crimes, the co-defendants' sentences, and any other non-specific mitigating factor which constituted a reason for not imposing a death sentence. Id. at v. 52, p. 778. The jury returned a verdict on December 17, 1986, finding that the mitigating factors did not outweigh the aggravating factors and that a sentence of death was appropriate. Id. at v. 52, p. 753. Petitioner was sentenced to death on January 28, 1987. He also serves five (5) consecutive life sentences for convictions arising out of the same incident.

Petitioner, through the Colorado State Public Defender's Office, then filed a direct appeal of his death sentence to the Colorado Supreme Court. Defense counsel received four (4) extensions of time to file the opening brief on this appeal. The brief was filed on February 1, 1989, nearly two (2) years after the case was docketed in the State Supreme Court. The opening brief, entitled "Partial Opening Brief," contained 138 pages of text and raised 9 separate issues. AROA, v. 18, pp. 1-151. An appendix was attached to the brief which listed 102 additional issues, including issues about the guilt phase, which counsel indicated he wanted to raise but could not because of the purportedly "unreasonable time limitations placed on the filing of the Opening Brief" and the "inadequate" record on appeal. See Partial Opening Brief, AROA, v. 5, pp. 1219-1231. On April 7, 1989, defense counsel attempted to file a second partial opening brief. Id. at v. 52, p. 1232. This was disallowed by the Colorado Supreme Court.

After oral argument on the direct appeal, the prosecution learned of the existence of confidential material which could be deemed exculpatory. The prosecution requested a limited remand to determine whether this evidence needed to be disclosed. People v. Rodriguez, 786 P.2d 1079 (Colo.1989) ("Rodriguez II"). After a remand to trial court, the Colorado Supreme Court ruled that the material had to be disclosed to Petitioner. People v. Rodriguez, 794 P.2d 964, 965 (Colo.1990) ("Rodriguez III").

On May 29, 1990, the Colorado Supreme Court issued its decision on the direct appeal which affirmed the trial court on a 4-3 vote. People v. Rodriguez, 794 P.2d 965 (Colo.1990) ("Rodriguez IV"). The three Justices who wrote dissents, Quinn, Lohr, and Kirshbaum, each concluded that legal errors required a reversal of the death sentence. Id. at 998-1006. Petitioner sought certiorari from the United States Supreme Court which was denied in January, 1991. Rodriguez v. Colorado, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).

Petitioner next filed motions for postconviction relief in the state district court pursuant to Colo.R.Crim.P. 35. One of the motions was over 700 pages long and raised 319 separate unnumbered claims. AROA, vv. 11, 12. The district court appointed separate counsel, Richard Hostetler, to handle the allegations of ineffective assistance of counsel. These claims were denied by the state trial court in a written order issued on October 7, 1993. See Respondent's Brief, Appendix ("App.") A.

On February 14, 1994, the state trial court issued an order denying all of Petitioner's remaining postconviction claims except those dealing with the felony murder and conspiracy convictions and newly discovered evidence. The district court ultimately vacated Petitioner's convictions for first-degree felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit first-degree aggravated motor vehicle theft on the grounds they were duplicitous with his convictions for first-degree deliberated murder and conspiracy to commit first degree murder. Further, the district court conducted a hearing on the claims of newly discovered evidence on March 17, 1994 and denied those claims in a ruling from the bench. ROA,...

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    ...violation. Mr. Fontenot has met his burden to prove "a realistic possibility of injury or benefit to the State." Rodriguez v. Zavaras , 42 F.Supp. 2d 1059, 1084 (D. Colo. 1999) quoting Shillinger , 70 F.3d at 1142. The prejudice occurred when the use of confidential letters from Mr. Fonteno......
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