Court Opinions: 10th Circuit Court of Appeals Opinions for the Week of April 18

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

St. George v. Roark, et al.

On Feb. 9, 2018, a jury in Jefferson County convicted Eric St. George of two counts of attempted second-degree murder, two counts of first-degree assault, three counts of felony menacing, one count of illegal discharge of a firearm and one count of sexual contact with no consent. In April 2018, a state court judge sentenced him to 32 years in prison plus five years of mandatory parole.

St. George directly appealed his conviction to the Colorado Court of Appeals in May 2018. Shortly thereafter, the Colorado Court of Appeals granted the Office of the Colorado State Public Defender’s motion to withdraw and appointed St. George counsel from the Office of Alternate Defense Counsel. Conflict-free appellate counsel for St. George didn’t enter his appearance until 10 months later. St. George’s appellate counsel subsequently sought four extensions of time to file an opening brief, each granted by the Colorado Court of Appeals, totaling 365 days in extended time. After filing a fourth motion for extension of time to file an opening brief, St. George’s appellate counsel sought access to a sealed transcript from a hearing relevant to the appeal. The Colorado Court of Appeals granted the motion, and the record was supplemented approximately three months later. St. George finally filed his opening brief in August 2020. 

The court then granted an extension for the state to file its response brief and an additional extension for St. George to file his reply brief. The direct appeal was fully briefed in March 2021 — almost three years after St. George initially filed his notice of appeal.

Shortly after his direct appeal was fully briefed, and while it was still pending before the Colorado Court of Appeals, St. George filed a federal habeas petition. In the petition, he brought the same four claims he brought before the Colorado Court of Appeals: violations of the Fifth and Sixth Amendments and two violations of the Colorado Rules of Evidence. St. George’s petition was referred to a magistrate judge who ordered the respondents in the case to file a pre-answer response “addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A).” 

The respondents submitted a pre-answer response noting the petition was timely but arguing it should be denied because St. George hadn’t exhausted state remedies where his direct appeal was currently pending before the Colorado Court of Appeals. Recognizing the presumption that state court remedies are ineffective if they remain pending for longer than two years, the respondents argued this presumption was overcome because most of the delay was due to St. George’s appellate counsel’s repeated requests for extensions.

The magistrate judge recommended St. George’s petition be denied and the action dismissed without prejudice for failure to exhaust state remedies. He has subsequently filed a petition for certiorari in the Colorado Supreme Court.

St. George sought a certificate of appealability from the 10th Circuit Court of Appeals, which dismissed the appeal for lack of appellate jurisdiction and denied St. George’s motion to proceed in forma pauperis. 

Montgomery v. Calvano        

William Montgomery walked past Commerce City police officer Don Calvano and out of a Walmart with an unbagged package of cheese. Calvano then approached him and asked to see a receipt. Montgomery did not produce a receipt and did not “confirm nor deny that he paid for the merchandise.” Calvano detained Montgomery while Walmart employees investigated whether Montgomery paid for the cheese.

About 15 minutes later, a Walmart employee told Calvano that Montgomery hadn’t paid for the cheese. So Calvano arrested Montgomery for shoplifting, issued him a summons for petty theft in the amount of $2.37, and let him go. Montgomery then produced a receipt showing he had, in fact, paid for the cheese. A Walmart employee verified the receipt, and Calvano rescinded the summons.

Montgomery then sued, alleging Calvano violated his Fourth Amendment rights. He claimed Calvano lacked reasonable, articulable suspicion to detain him and lacked probable cause to arrest him.

The district court applied the doctrine of qualified immunity and dismissed the claims. On the unlawful arrest claim, the only claim at issue on appeal to the 10th Circuit Court of Appeals, the district court found that at the time of Montgomery’s arrest, it was not clearly established that an arrest under similar circumstances violated a suspect’s Fourth Amendment rights.

Montgomery, proceeding pro se, appealed the district court’s dismissal of his suit against Calvano, but the 10th Circuit Court of Appeals affirmed.

Wells Fargo Bank v. Mesh Suture, et al.        

Wells Fargo Bank filed a statutory-interpleader action after facing conflicting demands for access to the checking account of Mesh Suture, Inc. Mark Schwartz, an attorney who founded Mesh Suture with Dr. Gregory Dumanian, was named as a claimant-defendant in the interpleader complaint but was later dismissed from the case after the district court determined that he had disclaimed all interest in the checking account. The district court ultimately granted summary judgment to Dumanian as the sole remaining claimant to the bank account, thereby awarding him control over the funds that remained.

Schwartz appealed, contending the district court lacked jurisdiction over the case because there was not diversity of citizenship between him and Dumanian and the funds in the checking account were not deposited into the court registry, that he did not disclaim his fiduciary interest in the checking account and the award of funds to Dumanian violated various rights of Mesh Suture.

Wells Fargo contended Schwartz’s disclaimer deprives him of standing to appeal under Article III of the U.S. Constitution.

The 10th Circuit Court of Appeals rejected all these contentions by Schwartz and Wells Fargo. It ruled it had appellate jurisdiction because Schwartz has standing to pursue his assertions that he didn’t disclaim his interest in the Wells Fargo account and that he was improperly denied rights of control over that account. 

The 10th Circuit held that the district court had jurisdiction because there was the requisite diversity of citizenship and the funds in the checking account were in effect deposited into the court registry when the court appointed a receiver as its agent to handle the funds. And on the merits, the 10th Circuit held that the district court didn’t abuse its discretion when it held that Schwartz disclaimed all his interests in the checking account. 

As for the claim that the rights of Mesh Suture were violated, the 10th Circuit held that Schwartz cannot challenge the alleged violations of Mesh Suture’s rights because the district court refused to allow him to act as Mesh Suture’s attorney, and he has not challenged that decision on appeal. The 10th Circuit affirmed.

United States v. Murry

This case stems from a complex immigration issue involving two families living in the same community in Colorado Springs. One of the couples divorced but were so close with the other family, their lives and various paper trails had intertwined. The defendants were charged with entering marriage for the purpose of evading immigration laws, making false statements to government officials and conspiracy to commit marriage fraud and making false statements to government officials.

According to the 10th Circuit Court of Appeals opinion, three out of four defendants in this case “identify as minorities, and two are illegal immigrants.” The defendants asserted that the district court abused its discretion in failing to ask the potential jurors whether they harbored racist views. One defendant posited that if “America as an institution harbors racial prejudice in the context of immigration law, it stands to reason that some members of that same institution also harbor similar views.” But the Supreme Court has long held that no constitutional presumption of juror bias exists for or against members of any particular racial or ethnic groups.

The 10th Circuit ruled that without any substantial indication that racial or ethnic prejudice likely affected the jurors, the district court didn’t abuse its discretion in denying the defendants’ requests to directly examine the jurors about the subject.

The defendants also appealed the district court’s evidentiary rulings, the jury instructions and the sufficiency of the evidence. Finding the defendants’ arguments equally unpersuasive, the 10th Circuit affirmed.

Castillo-Rosales v. Roark, et al.    

A Colorado jury convicted Victor Castillo-Rosales for sexual assault on a child by one in a position of trust. Castillo-Rosales filed a habeas petition, asserting due process violations. Respondents moved to dismiss, arguing that the one-year limitation period barred Castillo-Rosales’ claim. A magistrate judge recommended that the district court deny the application as untimely and advised the parties that they had 14 days to file objections to the report and recommendation. 

But Castillo-Rosales never objected to the report and recommendation. So the district court adopted the magistrate judge’s report and recommendation that Castillo-Rosales’ application be dismissed as untimely and not subject to equitable tolling. The district court declined to issue a certificate of appealability.

The 10th Circuit Court of Appeals denied Castillo-Rosales’ request for a certificate of appealability and dismissed the appeal. 

United States v. Wilson 

A federal jury convicted William Wilson in 2010 “on multiple counts of bank fraud, aggravated identity theft, fraudulent use of a Social Security number and fraud in connection with an access device.” 

The district court sentenced him to 10 years’ imprisonment followed by five years of supervised release. The terms of supervised release imposed by the district court at the time of Wilson’s conviction stated he “shall not commit another federal, state or local crime,” prohibited him from “associat[ing] with any person convicted of a felony,” required him to provide his probation officer with “truthful and complete” monthly reports along with “access to any requested financial information,” and directed him to “follow the instructions of the probation officer,” among other things. 

But Wilson began violating these terms of supervised release immediately upon his release. The government sought to revoke Wilson’s supervised release based on the violations, which was granted by a district court along with revised terms for imprisonment and release.

Wilson appealed the district court’s revocation of his supervised release, its imposition of new terms of imprisonment and supervised release and its rejection of his claims of vindictive prosecution related to those proceedings. Wilson’s counsel filed a motion to withdraw, together with a brief under Anders v. California, based on counsel’s assessment that any argument on appeal would be frivolous. 

Wilson proceeded pro se and appealed the district court’s denial of his motion to modify his prison sentence so he could serve it at home. Wilson’s opening brief didn’t address the district court’s order, which the 10th Circuit Court of Appeals affirmed. The 10th Circuit also granted counsel’s motion to withdraw and dismissed the appeal.

Durand v. Barnes, et al.

Latara Durand is a Black woman who worked as a Youth Services Specialist II at the Lookout Mountain Youth Services Center, an intensive secure treatment program for male juvenile offenders. At Lookout Mountain, Durand was assigned to the Spruce housing unit and had duties similar to a guard at a youth correction center. Mari Shull was Lookout Mountain’s Assistant Director. In that position, she exercised supervisory authority over the Spruce and Juniper West units.

On May 22, 2017, an inmate referred to as “John Doe” violently assaulted Durand as she escorted him back to his room for not following her instructions. Durand “suffered a traumatic brain injury and cervical spine injury.”

Shull notified police, who charged Doe with assault. Durand missed a week of work. When Durand returned to Lookout Mountain on May 29, she was assigned to the Spruce unit’s control desk, pursuant to doctors’ medical restrictions. The control desk is a hub for the direction and control of inmates and maintains traffic in a unit. As part of her control desk duties, Durand had to check on inmates in their rooms every 15 minutes, including the boy who assaulted her. 

Nearly every time that Durand checked on Doe, he stood at the window in his secluded area in the facility, glared at her, yelled at her and made other threatening gestures, according to court documents. On an occasion when Doe was speaking with another juvenile, Durand overheard him call her multiple racial slurs. On one or more other occasions, Durand heard Doe in the control room use racial slurs and tell her not to press charges.

Two weeks after she returned to work, Durand learned that Doe had threatened to continue to assault her and kill her if she pressed charges against him. 

Durand met with Shull to complain about Doe’s behavior and threats. Durand asked Shull to transfer Doe to another unit, to excuse her from any contact with him and to report him to the police. But Shull rejected her requests. Durand also asked Shull about applying for a promotion, which would have allowed her to be away from Doe, but “Shull was not supportive.”

On July 5, 2017, Durand met with Shull again and submitted a letter of resignation because she “did not feel safe at Lookout Mountain anymore.” Her last day was July 7.

Durand later sued Shull in her individual capacity and the Directors of Colorado’s Human Services and Youth Services Departments. The only claim at issue on appeal is that “Shull refused to act to protect her from exposure to . . . Doe, thus creating a hostile and abusive work environment which resulted in [Durand’s] discriminatory constructive discharge,” in violation of the Equal Protection Clause and sections of the U.S. Constitution. 

The district court granted Shull summary judgment, concluding that she was entitled to qualified immunity because Durand failed to show a constitutional violation. Durand appealed but the 10th Circuit Court of Appeals affirmed.

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