FILED
United States Court of Appeals
Tenth Circuit
September 3, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RICHARD LEE MARTINEZ,
Petitioner - Appellant, No. 10-1294
v. (D. Colorado)
KEVIN MILYARD; JOHN SUTHERS, (D.C. No. 1:08-CV-00128-CMA)
Respondents - Appellees.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Petitioner Richard Lee Martinez, a Colorado state prisoner proceeding pro
se, seeks a certificate of appealability (“COA”) to enable him to appeal the denial
of his 28 U.S.C. § 2254 habeas petition alleging various infirmities in two
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
separate Colorado state court convictions for sexual assault. To obtain a COA,
Mr. Martinez must make a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84
(2000). Because Mr. Martinez has not made such a showing, we deny him a
COA and dismiss this matter.
BACKGROUND
As indicated above, this case relates to two separate Colorado state court
convictions involving Mr. Martinez: Montrose County District Court Nos.
97CR127 and 97CR180. In state court conviction No. 97CR127, Mr. Martinez
was convicted of attempted first-degree sexual assault, sexual assault on a child,
and four counts of being an habitual criminal. The offenses involved
Mr. Martinez’s attempt to have sexual intercourse with his sixteen-year-old
biological daughter. He was sentenced to sixteen years’ imprisonment for the
crimes. His convictions and sentence were affirmed on direct appeal. See People
v. Martinez, No. 98CA0386 (Colo. Ct. App., Dec. 9, 1999) (unpublished). The
Colorado Supreme Court denied certiorari review.
Mr. Martinez also filed three unsuccessful postconviction attacks on his
convictions and sentence in No. 97CR127. See People v. Martinez, No.
00CA1781 (Colo. Ct. App., June 21, 2001) (unpublished); People v. Martinez,
No. 01CA2131 (Colo. Ct. App., Feb. 20, 2003) (unpublished); and People v.
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Martinez, Nos. 04CA1760 and 05CA1593 (Colo. Ct. App., March 22, 2007)
(unpublished). 1 On July 16, 2007, Mr. Martinez was denied certiorari review of
his third postconviction motion.
In state court conviction No. 97CR180, Mr. Martinez was convicted of two
counts of second-degree sexual assault, one count of attempted second-degree
sexual assault, one count of first-degree sexual assault, and one count of second-
degree burglary. These offenses arose out of Mr. Martinez’s sexual assault of
another woman (i.e., not his biological daughter). The court sentenced him to
fifty-nine years’ imprisonment, to be served consecutively to the sentence in case
No. 97CR127. His convictions and sentences were affirmed on direct appeal.
See People v. Martinez, 36 P.3d 154 (Colo. Ct. App. 2001). On December 17,
2001, Mr. Martinez was denied certiorari review.
In 2003, Mr. Martinez filed a postconviction motion, pursuant to Colo. R.
Crim. P. 35(c), in case No. 97CR180, alleging ineffective assistance of counsel.
On June 30, 2004, while his Rule 35(c) motion was still pending, Mr. Martinez
filed a pro se postconviction motion alleging that his sentence was
unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004). The trial
court denied that motion on July 20, 2004. Following a hearing on the claim of
ineffective assistance of counsel, the trial court denied Mr. Martinez’s Rule 35(c)
1
The last case was the consolidated appeal from the denial of his third
postconviction motion in No. 97CR127 and his first postconviction motion in No.
97CR180.
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motion. The Colorado Court of Appeals affirmed the denial of both of those
motions. On July 16, 2007, certiorari review was denied.
Mr. Martinez then filed the instant application, raising claims relating to
case No. 97CR127 and case No. 97CR180. With respect to case No. 97CR127,
Mr. Martinez claimed that the trial court erred when it: (1) allowed him to waive
his right to counsel when he was under a claimed mental disability and therefore
unable to make such a decision; and (2) did not grant him a continuance when his
investigator withdrew one week before trial. Concerning case No. 97CR180,
Mr. Martinez alleged that the trial court erred when it: (3) admitted evidence of
other acts under Colo. R. Evid. 404(b); (4) admitted statements he made during
the course of plea negotiations; (5) failed to instruct the jury on the defense of
consent by his alleged victim; and (6) gave an inadequate limiting instruction on
the other acts evidence. With respect to case No. 97CR180, Mr. Martinez also
claimed that his trial counsel was ineffective.
The district court carefully reviewed the record and Mr. Martinez’s
allegations. With respect to each claim, the court first considered whether the
claim had been properly exhausted and/or was procedurally barred. It then either
addressed the merits of each claim or found it procedurally barred. Accordingly,
the district court determined that Mr. Martinez’s first claim (waiver of right to
counsel) was exhausted but should be dismissed on its merits. The court
dismissed the second claim (not granting continuance) and third claim (admission
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of other acts evidence) as procedurally barred. With respect to the fourth claim
(admission of statements made during plea negotiations), the fifth claim (failure
to instruct on the defense of consent), and the sixth claim (inadequate limiting
instruction on other acts evidence), the court determined they were all exhausted
but should be dismissed on their merits. Finally, regarding Mr. Martinez’s
seventh claim (ineffective assistance of trial counsel), the court noted that
respondents conceded it was exhausted, but again determined it should be
dismissed on its merits. As stated above, Mr. Martinez seeks a COA in order to
appeal that decision.
DISCUSSION
Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make
“a substantial showing of the denial of a constitutional right.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable
jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack, 529 U.S. at 484 (internal quotation
marks omitted). Thus, when the district court has ruled on the merits of the
prisoner’s claims, he must show that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Id. Where
the district court ruled on procedural grounds, a COA may be granted when the
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petitioner shows “that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and . . . whether
the district court was correct in its procedural ruling.” Id.
The district court dismissed two claims on procedural grounds, and the
remaining four on their merits. The district court’s opinion was meticulous,
thorough and lengthy, and it explained fully each disposition. We cannot see how
reasonable jurists would find any of the court’s determinations debatable, let
alone wrong. Accordingly, we deny Mr. Martinez his requested COA for
substantially the reasons stated in the district court’s order dated June 30, 2010.
CONCLUSION
For the foregoing reasons, we DENY a COA, DENY Mr. Martinez leave to
proceed in forma pauperis, and DISMISS this matter.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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