Court Opinions- Sep 07, 2020

United States v. Garcia

Miguel Garcia, a prisoner proceeding pro se, sought a certificate of appealability to appeal the district court’s order denying his 28 U.S.C., Section 2255 motion. 

A jury found Garcia guilty of possession of a firearm and ammunition by a prohibited person, possession of a firearm in furtherance of a drug-trafficking crime and possession with intent to distribute 50 grams or more of methamphetamine.

After trial, the district court granted two successive counsel’s motions to withdraw and allowed Garcia to represent himself. Garcia then filed post-trial motions claiming, among other things, that he received ineffective assistance of counsel; that the government secured his indictment and conviction using fabricated evidence and perjured testimony, among other government misconduct; that the jury was erroneously instructed; and that his rights under the Confrontation Clause were violated. The district court denied all of Garcia’s motions and entered judgment sentencing Garcia to 280 months in prison. 

Garcia did not file a direct appeal. Instead, before the time to appeal expired, he filed a Section 2255 motion, largely reasserting the same claims as the post-trial motions. He later supplemented his motion, adding two new claims: one based on Rehaif v. United States, and another based on United States v. Davis. After concluding that all of Garcia’s claims were both procedurally barred and lacked merit, the district court dismissed Garcia’s Section 2255 motion and denied him a COA. 

Because the district court dismissed his habeas claims on procedural grounds, Garcia can obtain a COA by showing that reasonable jurists could debate both the district court’s procedural ruling and the validity of his constitutional claims. 

Because reasonable jurists could neither debate whether Garcia stated a constitutional claim regarding IAC or Rehaif, nor “whether the district court was correct” in determining his remaining claims are procedurally defaulted, the 10th Circuit Court of Appeals denied Garcia’s request for a COA and dismissed this matter but granted Garcia’s motion to proceed in forma pauperis.

Makeen Investment Group v. State of Colorado

After filing an action in federal court asserting 10 claims for relief related to an action in state court, Makeen Investment Group, LLC, as trustee of the Makeen Family Children’s Trust, appealed the district court’s order adopting the magistrate judge’s recommendation to dismiss its third amended complaint and denying its motion for leave to file a fourth amended complaint. Exercising jurisdiction under 28 U.S.C. Section 1291, the 10th Circuit Court of Appeals affirmed.

Wingfield v. Jaques

Joshua Elliot Wingfield, a Colorado state prisoner proceeding pro se, sought a certificate of appealability to challenge the district court’s denial of his 28 U.S.C. Section 2254 petition for writ of habeas corpus. Even liberally construing his claims which include assertions that his Sixth and 14th amendment rights had been violated, the 10th Circuit Court of Appeals concluded that Wingfield has failed to satisfy the standard for the issuance of a COA. The court also denied his request to proceed on appeal in forma pauperis.

Moore v. Williams

After being convicted of attempted first-degree murder, two counts of first-degree burglary, first-degree assault, attempted sexual assault, menacing and violation of a protective order, Lessell Moore pro se sought a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. Section 2254 habeas petition. 

Moore first appealed his conviction to the Colorado Court of Appeals, arguing the trial court failed to properly advise him of his right to testify and that, as a result, his subsequent waiver of his right to testify was defective. The Court of Appeals rejected the claim on its merits, but the Colorado Supreme Court vacated the judgment because, in Colorado, such arguments can be made only in postconviction proceedings, not on direct appeal. 

In response, Moore filed for state postconviction relief with the state district court. He argued that he did not validly waive his right to testify because he was not competent to waive that right and the trial court failed to properly advise him on his waiver. When the district court denied relief, Moore again appealed to the Court of Appeals, which affirmed the denial. Accordingly, the district court denied Moore’s claim and dismissed his petition. 

Because Moore failed to challenge the district court’s resolution of his claims, the 10th Circuit Court of Appeals denied his request for a COA and dismissed this matter. The court approved Moore’s motion to proceed in forma pauperis.

Bertolo v. Lind

After pleading guilty to two counts of sexual exploitation of a child, a class 3 felony, and one count of sexual assault on a child, a class 4 felony, James Bertolo, a state prisoner appearing pro se, sought a certificate of appealability to challenge the district court’s denial of his application for relief under 28 U.S.C. Section 2241. 

Because Bertolo failed to show the “existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised,” the 10th Circuit Court of Appeals denied a COA and dismissed this matter, also denying his request to proceed in forma pauperis. 

People v. Ehlebracht

Christopher Ehlebracht pleaded guilty to first-degree assault and sexual assault on a child and the district court sentenced him pursuant to a stipulation in the plea agreement to 20 years in prison, to be followed by 10 years to life on probation. 

Ehlebracht challenged the district court’s orders designating him a sexually violent predator and imposing statutory surcharges after his sentencing. After Ehlebracht appealed, the Colorado Supreme Court decided Allman v. People, holding that, under the general probation statutes, a court may not sentence a defendant to both prison and probation in a multicount case. That development called into question whether Ehlebracht’s consecutive sentences to both prison and probation are legal. 

So, nostra sponte, the division ordered the parties to file supplemental briefs addressing whether the holding of Allman applies to a consecutive probationary sentence, like Ehlebracht’s, imposed under section 18-1.3-1004(2)(a), C.R.S. 2019, of the Sex Offender Lifetime Supervision Act. 

The parties contend, and the division agreed, that because Ehlebracht’s probationary sentence was imposed under SOLSA, a unique sentencing scheme emphasizing sex offender specific objectives, Allman doesn’t apply, and Ehlebracht’s consecutive sentences to prison and probation are authorized by law.

Bilderback v. McNabb

Robert Bilderback’s motorcycle collided with a patrol car after the officer drove through a red light while responding to an emergency call. Bilderback sued the officer and the City and County of Denver, and defendants moved to dismiss the case under C.R.C.P. 12(b)(1), arguing the claims were barred by the doctrine of sovereign immunity. 

The district court denied the motion, ruling that the officer’s conduct did not satisfy the emergency vehicle exception to the Colorado Governmental Immunity Act’s waiver of sovereign immunity for injuries resulting from a public employee’s operation of a motor vehicle. The emergency vehicle exception is subject to certain conditions, including, among others, the one set forth in section 42-4-108(2)(b), C.R.S. 2019. That section states that the driver of an emergency vehicle may “[p]roceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.” 

A division of the Colorado Court of Appeals held that the mere fact that the emergency vehicle driver has stopped at a red light before entering the intersection does not, without more action, satisfy the condition set forth in section 42-4-108(2)(b); rather, to give effect to the phrase “but only . . . as may be necessary for safe operation,” a court must determine whether, depending on the specific factual circumstances, the driver was proceeding safely after entering the intersection, and while driving through it. 

The division remanded the case to the district court to resolve factual disputes bearing on this issue.

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