Free Judgment - District Court of Colorado - Colorado

Case 1:04-cv-01155-ZLW-PAC

Document 28

Filed 09/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 04-cv-1155-ZLW-PAC ADRIAN ENRIQUEZ-CHAVEZ, Applicant, v. BRENT CROUSE and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents. _____________________________________________________________________ ORDER AND JUDGMENT OF DISMISSAL _____________________________________________________________________ The matter before the Court is Applicant' Objection To The Proposed Findings s & Recommendations Of The Magistrate Judge. Applicant filed an Application For A Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 7, 2004. This case was referred to Magistrate Judge Patricia A. Coan on August 6, 2004. On January 18, 2005 the Magistrate Judge issued a Recommendation Of United States Magistrate Judge recommending that the Application For A Writ Of Habeas Corpus be denied with prejudice. Applicant proceeded to file the present objection on February 1, 2005. The Court reviews the Magistrate Judge' Recommendation de novo.1 s Applicant was sentenced to 20 years' imprisonment by the state trial court after pleading guilty to second degree kidnapping. In his objections to the Magistrate Judge' Recommendation, Applicant argues that the sentencing court violated his s

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28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).

Case 1:04-cv-01155-ZLW-PAC

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Filed 09/29/2005

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Fourteenth Amendment due process rights by finding aggravating circumstances which were not supported by the record, and by failing to consider mitigating factors. Due process is violated where the sentencing judge relies on materially inaccurate information in support of the sentencing decision.2 As the Magistrate Judge acknowledged, the sentencing court did erroneously attribute to Applicant one statement by Applicant' co-defendant threatening to " s dump [the victim] in the lake." However, the Court agrees with the Magistrate Judge that even excluding that statement, there was sufficient factual information to support the mid-range 20-year sentence in this case. Further, even assuming that a failure to consider mitigating factors could support a due process claim, there was no such failure in this case. The trial court was presented with Applicant' arguments concerning mitigating factors at the s sentencing hearing, and rejected them. Applicant also contends that the sentence imposed violates his due process rights under Apprendi v. New Jersey3 because the " aggravating circumstances" supporting the sentence were not proven beyond a reasonable doubt. However, as the Magistrate Judge explained, the sentencing court' consideration of any " s aggravating" factors did not implicate Apprendi. Under Colorado law, second degree kidnapping is subject to crime of violence sentencing that automatically increases the range of the sentence, and, thus, enhancement of Applicant' sentence pursuant to Colo. Rev. Stat. s

2 See Townsend v. Burke, 334 U.S. 736, 740-41 (1948); see also United States v. Tucker, 404 U.S. 443, 447 (1972). 3

530 U.S. 466 (2000). 2

Case 1:04-cv-01155-ZLW-PAC

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Filed 09/29/2005

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§ 18-1.3-406 did not require proof of any fact other than the elements of second degree kidnapping itself.4 Applicant' sentence did not run afoul of Apprendi. s For the reasons set forth above, the Court accepts and adopts the Recommendation Of United States Magistrate Judge. Accordingly, it is ORDERED that Applicant' Objection To The Proposed Findings & s Recommendations Of The Magistrate Judge is overruled. It is FURTHER ORDERED that Applicant' Application For A Writ Of Habeas Corpus s is denied. It is FURTHER ORDERED that this action is dismissed with prejudice and judgment is entered in favor of Respondents Brent Crouse and Ken Salazar, and against Applicant Adrian Enriquez-Chavez, the parties to pay their own costs. It is FURTHER ORDERED that Applicant' Application For Final Determination To s The Objection To Proposed Findings & Recommendations Of The Magistrate Judge Pursuant To 28 U.S.C. §2266 is moot. DATED at Denver, Colorado, this 29 day of September, 2005. BY THE COURT: s/ Zita L. Weinshienk __________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court

4 See People v. Hogan, 2004 WL 2473856, *13 (Colo. App.); see also People v. Terry, 791 P.2d 374, 378 (Colo. 1990); see also Colo. Rev. Stat §§ 18-1.3-406(2)(a)(I), 18-1.3-406(II)(D), 18 1.3401(8)(a)(1), 18-1.3-406.

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