Free Motion to Supplement - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents.

SUPPLMENTAL MEMORANDUM OF LAW IN SUPPORT OF APPLICANT'S WRIT OF HABEAS CORPUS PETITION PURSUANT TO 28 U.S.C. SECTION 2254

COMES NOW John E. Lopez, Applicant in the above-styled action and hereinafter referred to as "Applicant," by and through undersigned counsel, and files his Supplemental Memorandum of Law in Support of Applicant's Writ of Habeas Corpus Petition Pursuant to 28 U.S.C. Section 2254. In order to avoid repetition, the arguments and facts asserted in Applicant's pro se application, traverse and other supporting documents are incorporated herein. I. JURISDICTION John Lopez (hereinafter referred to as "Applicant") is a state prisoner who was sentenced on May 25, 1994 to a term of life for first degree murder by the Honorable Thomas R. Ensor, District Court of Adams County, Colorado. The Applicant contends that his conviction and sentence were imposed in violation of the Due Process Clause of

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the Fifth and Fourteenth Amendments. Jurisdiction is conferred upon this Court to entertain these claims under Section 2254 to Title 28 of the United States Code. II. ISSUES PRESENTED FOR REVIEW 1. The statements of John Lopez, given as a result of five days of interrogation and coercion by Sergeant Joe Dougherty and his Agent Deborah Lopez, were obtained in violation of Lopez's Fifth and Fourteenth Amendment Rights of the United States Constitution and are therefore involuntary and should have been suppressed. 2. The Applicant, has obtained new reliable evidence, that demonstrates his innocence and such evidence establishes more likely than not, that no reasonable juror would have found the Applicant guilty beyond a reasonable doubt. A failure to consider such evidence will result in a violation of the Applicant's substantive and procedural due process rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution. See generally, Schlup v. Delo, 513 U.S. 298 (1995). III. REVIEW OF HABEAS CLAIMS ON THE MERITS: APPLICABLE STANDARDS OF REVIEW Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state prisoner is entitled to relief in a Section 2254 proceeding only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." To the extent that a petitioner challenges an alleged error under state law, he alleges no deprivation of federal rights and may not obtain habeas relief. Engle v. Isaac, 456 U.S. 107, 119 (1982).

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When a constitutional claim was adjudicated on the merits in the state courts, habeas relief may not be granted unless the state court decision was "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court," or was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. Section 2254(d)(1) and (2). "The AEDPA amended the standards for reviewing state court judgments in Section 2254 proceedings...The AEDPA increases the deference to be paid by the federal courts of the state court's factual findings and legal determinations." Houchin v. Zavaras, 107 F.3d 1465, 1470 (10 Cir. 1997). The Supreme Court explained these standards in Williams v. Taylor, 529 U.S. 362 (2000). Under the "contrary to" clause of section 2254(d)(1), a state court decision is "contrary to" Supreme Court precedent only when it "arrives at a conclusion opposite to that reached by this Court on a question of law." (i.e., "applies a rule that contradicts the governing law set forth in our cases"), or "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Id. at 405-406. Under the "unreasonable application" clause of Section 2254(d)(1), a state court decision involves an "unreasonable application" of Supreme Court precedent if the state court "identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 409-413. The question is not whether the state court decision was "incorrect," but whether it was "objectively unreasonably." Id.
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Title 28 U.S.C. Section 2254(e)(1) maintains the prior rule that state court actual determinations must be presumed correct in habeas proceedings. See generally, Sumner v. Mata, 455 U.S. 591, 597 (1982). This presumption of correctness may not be

overcome because a federal court might have decided the issue of historical fact differently than the state court. Rather, it requires federal courts "to face up to any disagreement as to the facts and to defer to the state court..." Sumner, 455 U.S. at 597598. The Applicant must "rebut the presumption of correctness by showing, by clear and convincing evidence, that the state court's decision was an unreasonable determination of the facts." Fields v. Gibson, 277 F.3d 1203, 1215-1216 (10 Cir. 2002); Le v. Mullin, 311 F.3d 1002, 1010 (10 Cir. 2002). The presumption of correctness applies equally to state trial and appellate court findings of fact. Sumner, 455 U.S. at 591. That is because state courts are "in far better position than the federal courts" to make findings of fact. Rushen v. Spain, 464 U.S. 114, 120 (1983). The high standard of factual deference is increased by the additional AEDPA-imposed burden that, when attempting to overcome the presumption of correctness, the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. Section 2254(e)(1); Houchin 107 F. 3d at 1470. In United States v. Addonizio, 442 U.S. 178, 185 (1975), the Court held that error of law does not provide a basis for collateral attack unless the claimed error constituted a "fundamental defect which inherently results in a complete miscarriage of justice." Therefore, this collateral attack regarding Applicant's claim that his confession was involuntary and should have been suppressed as well as his claim of innocence are
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properly reserved in this forum as "fundamental defects" in the proceeding. The issues presented in this Writ of Habeas Corpus Petition are subject to review by this Court since the issues addressed herein involve fundamental violations of the Applicant's constitutional rights and have not been fully and fairly litigated in federal court. The U.S. Supreme Court has held that post-conviction relief pursuant to the Federal Writ of Habeas Corpus Act cannot be obtained unless such claims were previously raised on direct appeal or in other related proceedings. See generally, Murray v. Carrier, 477 U.S. 478 (1986). These requirements have been met in this case. The Applicant asserts that a failure by this Court to consider all issues will result in a miscarriage of justice as predicated in the Court's ruling in United States v. Addonizio, 442 U.S. 178 (1979). In Waley v. Johnston, 316 U.S. 101 (1942), the Court held that a prisoner could attack his conviction on constitutional grounds separate from those issues previously raised in appeal. It is now evident that the promulgation of federal habeas corpus law provides a prisoner a separate and potentially last review of all violations existing in the record and the Court should permit a full review of all claims. See generally, Porcaro v. United States, 784 F.2d 38 (1 Cir. 1996); Peavy v. United States, 31 F.3d 1341 (6 Cir. 1994); United States v. Achklen, 47 F.3d 739 (5 Cir. 1995); and, United States v. Amlani, 111 F.3d 705 (9 th Cir. 1987). IV. FACTS SUPPORTING THE CLAIMS FOR RELIEF PURSUANT TO RECENT INVESTIGATIONS CONDUCTED BY APPLICANT'S INVESTIGATOR DAVID L. WILLIAMS
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The Applicant proffers the following facts as further support of his assertion that Deborah Lopez acted improperly as an agent for the Police thereby resulting in an involuntary confession made by the Applicant. These proffers are made following the

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investigator's interviews with Deborah Lopez before and during her viewing of the video taped interrogations of the Applicant. These facts and statements, never previously introduced into the state record, will be further supported during an evidentiary hearing through the testimony of Deborah Lopez and Sgt. Dougherty. In summary, Deborah Lopez acting as an agent with the Commerce City Police Department provides the following detail: 1. Following our husband's murder, the Commerce Police Department visited Deborah Lopez's home everyday for several hours a day over the course of months in an attempt to have her convince her son to come to the police station. The police also initiated telephone contact with Deborah Lopez every day following her husband's murder. 2. During these extensive meetings, the police provided detailed information regarding

the murder, crime scene evidence, and other police investigative tactics in an attempt to have Deborah Lopez convince her son that he needed to meet with the police. 3. Deborah Lopez was requested by the Commerce Police Department to seek a

confession from her son John Lopez. 4. According to Deborah Lopez, she was provided with specific information and strategy as to how she could coax her son to confess to the murder of her husband. The Police provided her with specific examples of how to obtain a confession. 5. The Police requested that Deborah Lopez search her home for any physical evidence relating to the murder of her husband and that she should conduct these searches inside and outside of her home.

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6. On one occasion, Deborah Lopez obtained a 22 caliber pistol and threatened her son in an attempt to have him talk with the police. The police were informed as to this behavior and complimented Deborah Lopez in pursuing this tactic. 7. On another occasion, Deborah Lopez pounded on the hood of the Applicant's car in a King Sooper's parking lot consistent with instructions provided by the police in an attempt to apply pressure to her son to solicit a confession. 8. Once the Applicant arrived at the Commerce City Police Department, Deborah Lopez was instructed as to specific information to provide to her son regarding the crime in an attempt to coax her son to provide a confession. 9. During the five days of interrogation, the police met with Deborah Lopez and

instructed her as to what she could do to facilitate her son's confession. Every evening she was briefed and then debriefed in the morning by the police prior to the commencement of further interrogations of the Applicant. 10. Additionally, Deborah Lopez was instructed to remain at the police station all day and provide whatever support the police needed. During breaks and lunch, Deborah Lopez was provided information and instructions in confronting her son in an attempt to assist the police in obtaining a confession. Attached to this Memorandum is a detailed synopsis of the video tape interrogation prepared by investigator Williams after referring its contents with Deborah Lopez. The summary of the investigator's notes as well as specific references to the tapes are provided as further evidence that Deborah Lopez acted as an agent for the Commerce City Police Department.

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V. ARGUMENTS OF FACT AND LAW 1. The statements of John Lopez, given as a result of five days of interrogation and coercion by Sergeant Joe Dougherty and his Agent Deborah Lopez, were obtained in violation of Lopez's Fifth and Fourteenth Amendment Rights of the United States Constitution and are therefore involuntary and should have been suppressed. The Applicant submits that Title 28 U.S.C. Section 2254(d)(2) is applicable in this instance. Here, the state court decisions "resulted in a decision based on an unreasonable determination of the facts." As demonstrated by the recent investigation, there exists "clear and convincing evidence" that Deborah Lopez acted as an agent for the police thereby resulting in the Applicant's involuntary confession. Clearly, a review of the video tape interrogations reveals that she acted in such a capacity. The state courts failed to consider relevant evidence that demonstrates that Deborah Lopez was transformed into an agent of the police before and during interrogations held at the police station. The trial court incorrectly held that Ms. Lopez's conduct was not influenced by the police. By making this improper decision, the trial court failed to consider Deborah Lopez's outrageous behavior and the coercive effects it had in having the Applicant make an involuntary statement. The nexus between Deborah Lopez's behavior as an agent for the police was the direct causation for the Applicant's involuntary confession. Parenthetically, but for Deborah Lopez's actions as an agent for the police, there would have been no confession as indicated by the video tapes made as a component of this case. Had the state courts properly ruled on the issue that Deborah Lopez was acting as an agent of the police and that her outrageous behavior was attributable to the police, then that behavior when combined with Sgt. Dougherty's conduct, would have required the state courts to find that there were improper police influences which played a significant

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role in inducing the Applicant's confession. It is important to distinguish the fact that the Colorado Court of Appeals determined that Deborah Lopez did not act as an agent prior to the interrogation but nevertheless her conduct was clearly controlled and manipulated by the police during the five days of interrogations which commenced on July 12, 1993. It is precisely the actions of Ms. Lopez combined with the manipulation of Sgt. Dougherty that indicates that the confession was not voluntary given the totality of the circumstances. Scheckloth v. Bustamonte, 412 U.S. 218 (1973). Here, the Applicant's mother continually threatened, manipulated, and coerced his confession based on the instructions and support she received from the police. In essence, the manipulation and coercion continued well into the evening every day as Deborah Lopez would receive further instructions from the police in an attempt to threaten her son in confessing to a crime that he did not commit. Ms. Lopez had previously pointed a loaded gun at the Applicant's head to coerce a confession. The coercive behavior occurred all day and night by Deborah Lopez's continued role of psychological abuse at the direction of the police. Additionally, Sgt. Dougherty showed a picture of the Applicant's dead stepfather in a further attempt to seek a confession. Finally, Deborah Lopez and Sgt. Dougherty make promises to the Applicant that their only intent is to have Sandoval, the real murder, charged with a crime. The Colorado Courts failed to reasonably determine the facts in light of the evidence as presented. Finding Mrs. Lopez was not acting as an agent for the police, given the totality of the evidence and concluding that the Applicant's statements were voluntary, is inconsistent with the facts as presented and supported by the video taped interrogations. Deborah Lopez was under the control and manipulation of the police during the entire

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interrogation process both at the police station and later in the evenings. She was briefed and debriefed by the police during the entire process and instructed what to say. The constant contact and briefing by police demonstrates that the police "knew of and acquiesced in the intrusive conduct" of Deborah Lopez and she believed that she was indeed "assisting law enforcement efforts" to obtain a confession from her son. See generally, Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989). In this instance, the Colorado Court of Appeals applied incorrect facts in evaluating the issue as to whether Mrs. Lopez was performing activities consistent with police tactics and conduct. The state court's decision was clearly unreasonable as demonstrated by a review of the facts leading to the interrogations and the actual interrogation itself. See generally, 28 U.S.C. Section 2254(d)(2). But for Mrs. Lopez conduct, it is

reasonable to assume that the Applicant would have never confessed, much less arrived at the police station months after his stepfather's death. Given the frequency of contact

between the police and Mrs. Lopez, the police knew and encouraged her behavior thereby supporting the notion that there existed state action. United States v. Leffall, 82 F.3d 343 (10 Cir. 1996). It was the continual insidious coercive techniques by the police and their agent, Deborah Lopez, that rendered the Applicant's confession involuntary. 2. The Applicant, has obtained new reliable evidence, that demonstrates his innocence and such evidence establishes more likely than not, that no reasonable juror would have found the Applicant guilty beyond a reasonable doubt. A failure to consider such evidence will result in a violation of the Applicant's substantive and procedural due process rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution. Schlup v. Delo, 513 U.S. 298 (1995). The Supreme Court has recently addressed the issue of actual innocence as a claim in habeas proceedings. In House v. Bell, Case No. 0-8990, decided June 12, 2006 by the U.S. Supreme Court, the Court permits an innocence claim as a justifiable means to
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achieve relief in the federal courts. As the Court stated in referencing Schlup v. Delo, 513 U.S. 298 (1995), It held that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." 513 U.S., at 327. This formulation, Schlup explains, "ensures that petitioner's case is truly `extraordinary,' while still providing petitioner a meaningful avenue by which to avoid a manifest injustice." (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)...Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record. See ibid. If new evidence so requires, this may include consideration of "the credibility of the witnesses presented at trial." Ibid. (noting that `[i]n such a case the habeas court may have to make some credibility assessments"). In this instance, the evidence is overwhelming that Deborah Lopez acted not as a private citizen, but as an agent of the police. Coolidge v. New Hamphsire, 403 U.S. 443 (1971). Once the Court accepts this premise, then the Applicant's confession would be suspect. But for the asserted and constant activity of the Applicant's mother, as

evidenced by her involvement during the interrogation process, the Applicant would have never confessed to a crime that he never committed. The pressure applied by Deborah Lopez was overwhelming in forcing her son to make a false confession. Deborah Lopez continued her tactics, under the guidance and control of law enforcement, outside of the interrogation room during the evenings. But for the Applicant's confession, there is no other incriminating evidence in this case to suggest that the Applicant killed his stepfather. In fact, the Government presents no other evidence, but the Applicant's confession, supporting their position that the

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Applicant was guilty of his stepfather's murder. As stated in the Applicant's direct appellate brief, The police found no trace of evidence linking Johnny or Sandoval to the extremely bloody crime scene. (v14, p.175-77). Moreover, Detective Pfannenstiel testified that he searched Johnny's car thoroughly just eight hours after the murder and found no blood or other evidence relating to the crime. (v14, p.132). The same was true of Marie Romero's apartment, which is the place Johnny was living and where he was on the night of the murder. (v13, p.13336). In fact, police met with both Johnny and Sandoval face to face at the crime scene and a few hours later in an interrogation room at approximately 6:00 a.m. on the morning following the murder. (v15, p.94, 122). Both Johnny and Sandoval were wearing the identical clothes they had worn the previous evening. (v15, p.122, 129130). At this time police had full opportunity to observe Johnny and Sandoval; yet police saw no blood or other signs that either had been engaged in a struggle. (v15, p.122, 129-30). Abraham Sandoval, the father of Lawrence, testified that at the Sandoval residence, he never saw a safe, jewels, money, or other evidence relating to the crime. (v13, p.66). Lannette Sandoval, Lawrence's older sister, testified that she was at the Sandoval residence on the night of the murder, and neither Lawrence nor Johnny could have used the Sandoval home to have cleaned or disposed of criminal evidence. (v17, p.3-18). Direct Appellate brief, pages 7-8. No other direct or indirect evidence was presented, but for the Applicant's involuntary confession. Without the confession, there exists no evidence supporting a conviction. The newly supplemented investigative report supports the underlying assertion, that Deborah Lopez acted as an agent for the police and by serving in this role, she assisted in obtaining a false confession from her son. If the jury was presented with the precise role of Deborah Lopez's involvement in securing a false confession from the Applicant, the results of this case would have been different. Consistent with Schlup and House this is

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an extraordinary case where this court must assess the "likely impact of the evidence on reasonable jurors" if the confession was to be suppressed. Here, without the confession, this Court must make "a probabilistic determination about what reasonable, properly instructed jurors would do." Schlup, at 329.. The state trial jury and Colorado appellate courts did not have before it the full conduct of Deborah Lopez's involvement as an agent for the police to demonstrate that the Applicant's confession was coerced and thus the federal courts must evaluate such conduct given the Applicant's innocence claims. VI. REQUEST FOR AN EVIDENTIARY HEARING The Applicant requests the opportunity to demonstrate his claims in an evidentiary hearing. He has proffered in his petition and supporting documentation that Deborah Lopez acted as an agent for the police in obtaining a false confession from the Applicant. A careful review of the video tapes as well as permitting the testimony of Lopez and investigator Sergeant Joe Dougherty involved in Applicant's case would substantiate Applicant's claims of innocence and that his constitutional rights were violated. Title 28 U.S.C. Section 2254(e)(2) provides: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the calm unless the applicant shows that-- (A) the claim relies on-- (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (emphasis added).

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Here, the Applicant has identified facts that support his assertion that but for his involuntary confession he would have not been convicted. Moreover, Applicant's

maintains his actual innocence and the evidence submitted suggests that a reasonable jury would now find the Applicant not guilty. Similar to a Section 2254 proceeding, 28 U.S.C. Section 2255 reads, in pertinent part, as follows: "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served on the United States attorney, grant a prompt hearing therein, determine the issues, and make findings of fact and conclusions of law with respect thereto (emphasis added)." In this instance, a hearing is necessary to afford this Applicant the opportunity to substantiate his claims. Applicant should have the ability to rebut the state court findings. Houchin v. Zavaras, 107 F.3d 1465 (10th Cir. 1997). The allegations in the Section 2254 Motion must be accepted as true and correct for purposes of deciding whether or not to hold an evidentiary hearing. Mayes v. Gibson, 210 F.3d 1284 (10th Cir. 2000). Affidavits, declarations, and written statements from Government officials may be used to frame the issues for the evidentiary hearing but may not be used as a substitute for the evidentiary hearing. Walker v. Johnston, 312 U.S. 275 (1941). The critical issue is whether the Applicant might have prevailed if given the chance to prove these allegations. Machibroda v. United States, 368 U.S. 487 (1962). In this instance, the Applicant asserts that the Court's failure to grant him a hearing to substantiate his claims will be in essence a denial of his due process rights pursuant to the Fourteenth Amendment of the United States Constitution.

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VII. CONCLUSION The Applicant requests that this Court vacate his state conviction or grant such other relief as the Applicant may be entitled to receive. Moreover, as necessary, the Applicant requests the opportunity to supplement his Memorandum as needed.

DATED this 13th day of July, 2006.

Respectfully submitted, s/Robert G. Levitt_____ Robert G. Levitt, Esq. Counsel for Applicant Colorado Reg. 24252 600 17th Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent by first class mail this 13 day of July, 2006 to: Cheryl Hone, Esq. Assistant Attorney General Office of the Attorney General th 1525 Sherman Street, 5 Floor Denver, Colorado 80203
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s/Robert G. Levitt Robert G. Levitt, Esq.

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INVESTIGATIVE NOTES REGARDING THE LOPEZ INTERROGATION VIDEO TAPES

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