Velarde v. Archuleta

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

TENTH CIRCUIT January 29, 2016

Elisabeth A. Shumaker
Clerk of Court

WRIGHTY* W. VELARDE,

Petitioner - Appellant,
No. 15-1250
v. (D. Colorado)
(D.C. No. 1:14-CV-02356-CMA)
LOU ARCHULETA, Warden, Fremont
Correctional Facility; THE ATTORNEY
GENERAL OF THE STATE OF
COLORADO,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.

Wrighty Velarde pleaded guilty to second-degree murder and attempted sexual

assault of his wife in Colorado state court on March 16, 2007. He seeks a certificate of

appealability (COA) so he can appeal the denial by the United States District Court for

the District of Colorado of his application for relief under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of habeas relief to state

prisoner). He contends that his plea and conviction should be set aside because (1) his

*
In the caption of his initial pleading in federal court, Mr. Velarde mistyped his first
name as “Wighty” rather than “Wrighty.” The misspelling has appeared in numerous
later captions.
counsel coerced him by threatening to withdraw if he did not accept the plea and (2) his

counsel gave him inaccurate information about when he would be eligible for parole. We

deny a COA and dismiss the appeal. Mr. Velarde failed to exhaust either claim in state

court and no reasonable jurist could rule that his state-court attorneys were ineffective in

failing to preserve the claims.

I. Background

The state presentence report provided the following summary of Mr. Velarde’s

offense:

[O]fficers discovered the victim’s deceased body in a hotel room, with blood on
the mattress, bloody bedding on the floor, and bloody bedding in the bathroom. It
looked like there had been a struggle in the room. [Mr. Velarde] thereafter told the
police the following account of the victim’s death. He said that he and the victim,
who was his wife, had been drinking heavily before engaging in “real hard sex,”
which included his penetrating her anally, with both his penis and his fingers. He
further said that she began bleeding heavily, originally saying that she was
bleeding from menstruation but later adding that he noticed blood coming from
her anus. He said that she then lost consciousness, and he could not revive her
with CPR. He said that he believed the victim died from a heart attack. The doctor
performing the autopsy concluded that the victim bled to death from injuries to her
anus.

People v. Velarde (Colo. App. No. 12CA2356, June 26, 2014) (unpublished). According

to the state’s response to Mr. Velarde’s § 2254 application:

[Mr. Velarde] admitted in a police statement that he (1) inserted his fingers into
his wife’s anus with such force as to cause her to bleed profusely, while she was
so drunk as to be drifting in and out of consciousness; (2) remained in the motel
room while she bled to death (and for several hours thereafter); (3) dressed her
body; and then (4) left the motel room, all without calling 911 or seeking any other
kind of help for her.

R. at 51. The state trial judge said:
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 [A]fter the events in that room, and after [Mr. Velarde] realized that his wife—his
wife, the love of his life—was dead, he put her clothes on, got in a car, and drove
away, leaving his wife in that room; beds covered with blood, the sheets covered
with blood, the room covered with blood. He didn’t call 9-1-1, didn’t stop some
place to achieve assistance, didn’t look out for the woman that he loved, he drove
away. He was stopped in Colorado Springs by the police department down there,
and when apprehended then he made mention of something occurring in that
room.

R. at 26.

Mr. Velarde was initially charged with first-degree felony murder and two counts

of sexual assault. His plea agreement stipulated to a concurrent sentence of 33 years’

imprisonment for second-degree murder and six years’ imprisonment for one count of

attempted sexual assault. Before sentencing, Mr. Velarde moved to withdraw his plea,

contending that he had been coerced into pleading guilty by his trial counsel and that he

had a defense that his wife had died of a heart attack.

On the coercion issue, which Mr. Velarde is pursuing in this court, he testified at

the hearing on his motion (1) that his understanding was that the fee arrangement with

defense counsel did not cover going to trial and (2) that his lawyer advised him that he

would no longer represent him if he did not plead guilty. His father, however, testified

that Mr. Velarde was not well informed about the financial details of the representation.

Contrary to his son’s testimony, he stated that the fee arrangement covered all

proceedings including trial.

Most importantly, Mr. Velarde was contradicted by the experienced attorney who

represented him at his plea. Counsel testified as follows: He had participated in more

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than 160 jury trials as a criminal defense attorney, including over 10 murder trials, and

had handled extensive postconviction and appellate work, including death-penalty cases.

His fee for representing Mr. Velarde was $70,000 to $80,000 for representation through

trial, although there would be a partial refund if trial was avoided. The fee was paid by

Mr. Velarde’s family over a period of months. He informed Mr. Velarde of the fee

arrangement but never used it as a threat. One of the first things counsel did was

interview the coroner for an hour or hour and a half. He learned from the coroner that the

victim’s death was caused “by the defendant reaching inside the victim and causing

enough damage that she bled to death.” R. at 217. He then consulted another coroner,

and discussed the evidence with Mr. Velarde. He “did not see that this case could be

defended on a claim that she died, but not because of Mr. Velarde’s conduct.” Id. at 235.

After several weeks of extensive negotiations with prosecutors, he reached a plea deal of

33 years’ imprisonment. He told Mr. Velarde that this was the best deal they could

negotiate, and if he went to trial he would very likely receive a life sentence.

In addition, the prosecution read into the record Mr. Velarde’s statement in the

plea agreement that no one had coerced or threatened him to plead guilty.

After this evidence defense counsel abandoned any claim of coercion by defense

counsel. He at no time raised the claim now presented to us that Mr. Velarde was

misinformed about the possibility of parole.

The district court denied the motion to withdraw and sentenced Mr. Velarde to the

stipulated sentence. Mr. Velarde did not file a direct appeal but sought postconviction
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relief by filing a motion under Colorado R. Crim. P. 35(c) alleging that trial counsel was

ineffective for failing to (1) investigate the heart-attack defense, (2) consider an

intoxication defense, and (3) advise him of his right to testify. He also alleged that trial

counsel was ineffective for failing to appeal the denial of the motion to withdraw his plea.

The court denied the motion except for the claim that counsel was ineffective in failing to

appeal the denial of the motion to withdraw. It permitted him to file an untimely appeal

of the denial. Mr. Velarde then appealed the denial of his motion to withdraw and the

denial of his other Rule 35(c) claims. The Colorado Court of Appeals affirmed on all

grounds. Mr. Velarde was represented by counsel throughout the proceedings.

Mr. Velarde filed his pro se § 2254 application on August 25, 2014, raising three

claims of ineffective assistance of counsel—failure to investigate possible defenses,

failure to provide proper advice regarding parole eligibility, and failure to seek

suppression of his statements to police—and one claim challenging the voluntariness of

his plea. The district court denied relief, holding that the claim that counsel failed to

investigate possible defenses lacked merit and that the remaining claims were

procedurally barred for failure to raise them in the state postconviction proceedings. The

district court further held that Mr. Velarde had failed to show cause and prejudice

excusing his procedural default because his claims were not substantial.

In this court Mr. Velarde reasserts (1) that his guilty plea was coerced because of

his trial counsel’s threat to withdraw from the case if he did not accept a guilty plea, and

(2) that his trial counsel was ineffective for failing to correctly advise him before he
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pleaded guilty that he would be ineligible for parole until he had served 75% of his term

of imprisonment.

II. Discussion

A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id. If the application was denied on procedural

grounds, the applicant faces a double hurdle. Not only must the applicant make a

substantial showing of the denial of a constitutional right, but he must also show “that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district court is

correct to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should be

allowed to proceed further.” Id.

One potential procedural bar is failure to exhaust state-court remedies. See 28

U.S.C. § 2254(b)(1); Frost v. Pryor, 749 F.3d 1212, 1231 (10th Cir. 2014) (generally,

“[a] federal court cannot grant a state prisoner's habeas petition unless the petitioner has
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exhausted his claims in state court.”). For a claim to be exhausted, the “state prisoner

must give state courts one full opportunity to resolve any constitutional issues by

invoking one complete round of the State’s established appellate review process.” Id.

(internal quotation marks omitted). We treat a claim as exhausted, however, if it is now

too late to pursue relief in state court. See Gray v. Netherland, 518 U.S. 152, 161 (1996)

(exhaustion requirement “is satisfied if it is clear that the habeas petitioner’s claims are

now procedurally barred under state law.” (brackets and internal quotation marks

omitted)); see also Coleman v. Thompson, 501 U.S. 722, 732 (1991) (“A habeas

petitioner who has defaulted his federal claims in state court meets the technical

requirements for exhaustion; there are no state remedies any longer ‘available’ to him.”).

But exhaustion in this manner is not much advantage to the § 2254 applicant. “[T]he

procedural bar that gives rise to exhaustion provides an independent and adequate state-

law ground for the conviction and sentence, and thus prevents federal habeas corpus

review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice

for the default.” Gray, 518 U.S. at 162. “Cause excusing a procedural default must be

some objective factor external to the habeas petitioner, not fairly attributable to him, that

impeded his efforts to comply with the procedural rule in question.” Spears v. Mullin,

343 F.3d 1215, 1255 (10th Cir. 2003). And the prejudice prong requires the applicant to

show “actual prejudice as a result of the alleged violation of federal law.” Fairchild v.

Trammell, 784 F.3d 702, 719 (10th Cir. 2015) cert. denied sub nom. Fairchild v. Warrior,

No. 15-6877, 2016 WL 100628 (U.S. Jan. 11, 2016). The most common “cause” is
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ineffective assistance of counsel for failure to preserve the claim in state court. See, e.g.,

Martinez v. Ryan, 132 S. Ct. 1309, 1318 (2012). Counsel is ineffective if (1) “counsel’s

representation fell below an objective standard of reasonableness” as measured “under

prevailing professional norms,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and

(2) this deficient performance prejudiced the defense, id. at 692.

Mr. Velarde seeks a COA on two issues: (1) whether his plea was coerced by a

threat to withdraw by trial counsel and (2) whether his trial counsel was ineffective in

misinforming him about parole eligibility. Neither was exhausted in Colorado state

court, and now both are procedurally defaulted under Colo. R. Crim. P. 35(c)(3)(VII)

(“The court shall deny any claim that could have been presented in an appeal previously

brought or postconviction proceeding previously brought except [in several

circumstances not present here].”). The first issue was raised in Mr. Velarde’s motion to

withdraw his plea. But it was abandoned (for good reason) after defense counsel heard

testimony at the hearing. The second was never raised. We hold that no reasonable jurist

could rule that counsel was ineffective for failing to exhaust either issue. We address

them in turn.

A. Coercion by threatening to withdraw

Mr. Velarde claims that he was coerced into pleading guilty by his attorney’s

representations that he would withdraw if Mr. Velarde went to trial. At the hearing on his

motion to withdraw, he testified that the fee arrangement with counsel did not provide for

going to trial and that he thought he would lose his lawyer if he did not plead guilty. But
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that testimony was undermined by testimony by his father and his original trial counsel,

which showed that if there was any pressure from trial counsel, it was only to explain to

Mr. Velarde his dire situation, where his best choice was not an attractive one. See Fields

v. Gibson, 277 F.3d 1203, 1214 (10th Cir. 2002) (“Advice—even strong urging by

counsel does not invalidate a guilty plea.” (internal quotation marks omitted)). Further,

Mr. Velarde told the Colorado trial court that accepted his plea that no one had pressured,

coerced, or threatened him in some way to enter the guilty plea against his will. See

United States v. Sanchez-Leon, 764 F.3d 1248, 1259 (10th Cir. 2014) (“Although we

review the validity of a plea de novo as a legal conclusion, solemn declarations made in

open court carry a strong presumption of verity.” (internal quotation marks omitted)).

Only a desperate attorney would have pursued the claim after hearing the evidence at the

hearing on the motion to withdraw. Failure to exhaust was not deficient performance.

B. Misinformation on Parole Eligibility

Mr. Velarde argues that his trial counsel was ineffective for failing to advise him

that he would be required to serve three-fourths of his prison sentence under Colo. Rev.

Stat. Ann. § 17-22.5-403(2.5) (West). He contends that he was told that he would be

parole eligible in 10 to 12 years, although he will actually have to serve 25 years of his

33-year stipulated sentence. He asserts that “[b]ut for this misadvice [he] would not have

entered [his] plea and instead would have insisted upon going to trial.” R. at 10. This

claim was never raised in state court. But a fully competent attorney could easily have

decided that it would not be worth raising, because Mr. Velarde’s present assertion that
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he would have gone to trial if he had known that he could not be released for 25 years is

not a credible one. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (To prove that counsel’s

deficient performance prejudiced him in entering a guilty plea, “the defendant must show

that there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.”).1

First, the case against Mr. Velarde was very strong. Although Mr. Velarde

contends he had a legitimate chance of acquittal based on the heart-attack defense, his

highly experienced counsel—who spent one-and-one-half hours interviewing the coroner

who performed the autopsy and later interviewed another coroner about the matter—

found no evidence to support this defense. Counsel negotiated long and hard and

informed Mr. Velarde that he had obtained the best plea agreement possible.

Second, Mr. Velarde’s own testimony at the hearing on his motion to withdraw his

plea undermines his present argument. He gave two versions of his thinking before his

1
For purposes of this discussion, we can assume without deciding that misadvice
regarding parole eligibility can constitute deficient performance under Strickland.
Although we recognize that several of our opinions have suggested that counsel is not
ineffective for failing to advise a defendant on the collateral consequences of a guilty
plea, see Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992); Chrisman v. Mullins,
213 F. App'x 683, 687 (10th Cir. 2007), these cases were decided before Padilla v.
Kentucky, 559 U.S. 356 (2010), which held that failure to advise a defendant about the
deportation consequences of a guilty plea (certainly a “collateral” consequence)
constituted deficient performance. Id. at 369. This court has not yet had occasion to
determine whether the reasoning of Padilla applies to misadvice regarding parole
eligibility, but several state courts have decided it does. See Angela J. Rollins, Collateral
Consequence Considerations for Illinois Practitioners after Padilla v. Kentucky, 102 Ill.
Bar J. 76, 79 (2014) (collecting cases on advice regarding parole eligibility post-Padilla).
Regardless, Mr. Velarde cannot show prejudice.
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plea, and both contradict his assertion that being informed of a longer parole-eligibility

time would have influenced his decision. His initial version was that he originally

pleaded guilty because he blamed himself for his wife’s death (and actually wanted the

death penalty) but later decided to withdraw his plea because he felt God would forgive

him. He testified on cross-examination:

[W]hen I first have my first lawyer, I asked him specifically, because I felt so bad
that I lost the love of my life and everything that was important to me, that I asked
him if he would—if he could get the death penalty for me, and he told me that—he
told me that—to go get another lawyer. And—and so I stopped talking to him
about the death penalty and I . . . searched myself and I searched and I searched
and I found out that—that God is a forgiving God and—and that’s when I decided
to—that I should take back my plea—and that I should stop blaming myself, and
that I believe me and my wife were in it together and that it was a tragic accident.

R. at 181. Of course, if his motive to plead guilty was the desire to be sentenced harshly,

the availability of parole was irrelevant.

Later, however, Mr. Velarde gave a different version. He testified that he did not

like the plea agreement and signed it only because of his attorney’s coercion. During that

testimony he said that the possiblility of parole (which his attorney had mentioned) did

not influence him because after “digging into the law library, I found out that sexual

offenders usually don’t get any respite from the state.” R. at 192. If he believed that he

was not going to be released early on parole, the availability of parole at an earlier date

could have made no difference.

In light of the strength of the case against Mr. Velarde, the advice of his attorney

that he could not get a better deal, and the contradictory testimony about what motivated

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his plea, a reasonably competent postconviction attorney could conclude that there was

little, if any, chance of ultimate success in claiming that he would not have pleaded guilty

had he been accurately informed about his eligibility for parole. Failing to raise that

claim in state court was not ineffective assistance of counsel. Therefore, reasonable

jurists could not debate the district court’s decision that Mr. Velarde’s procedural default

was not excused.

III. Conclusion

We DENY Mr. Velarde’s application for a COA and DISMISS the appeal.

Appellant’s motion to proceed in forma pauperis is DENIED.

ENTERED FOR THE COURT

Harris L Hartz
Circuit Judge

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