Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01072-ZLW-BNB

Document 65

Filed 10/17/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-1072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents. OPPOSITION TO MOTION TO PERMIT APPOINTMENT OF AN INVESTIGATOR Respondents, by the Attorney General of the State of Colorado, oppose applicant's motion to permit appointment of an investigator for the following reasons. 1. Applicant filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in May 2004. He raised only one issue, whether the Colorado Court of Appeals correctly determined that his statements to police officers were voluntary and therefore properly admitted at his trial. As part of that issue, it is necessary to resolve whether applicant's mother was acting as an agent of the police or as a private citizen. 2. Respondents filed an answer to applicant's petition in August 2004. 3. This Court appointed Robert Levitt as counsel for applicant in July 2005 and granted Mr. Levitt until October 14, 2005, to file an amended petition. 4. On October 14, 2005, Mr. Levitt moved to permit appointment of an investigator and to continue the briefing schedule. He writes that he is "convinced that a private

Case 1:04-cv-01072-ZLW-BNB

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Filed 10/17/2005

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investigator is necessary to establish that the state court's decision `resulted in a decision that was based on an unreasonable determination of the facts. . . .' Additional facts are necessary to establish that Applicant's mother . . . was acting as an agent of the police and that Applicant's statements were not voluntary. Central to this issue is Applicant's claim of innocence." Motion to Permit Appointment of an Investigator and Request to Continue Briefing Schedule at ¶ 4. 5. There are two problems with this argument. The first is that hiring an investigator to establish additional facts is useless unless a hearing is eventually held at which those facts are presented. No hearing has been ordered. No hearing is warranted because applicant received a full and fair hearing in state court. See Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1535 (10th Cir. 1994); see also 28 U.S.C. § 2254(e)(2) (disallowing hearings in § 2254 cases where applicant has failed to develop factual basis of claim in state court unless factual predicate could not have been previously discovered through the exercise of due diligence and facts underlying claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found applicant guilty of the underlying offense). 6. The second problem is the link that Mr. Levitt draws between the allegation that Mrs. Lopez was working as an agent of the police and the allegation that applicant is innocent. He claims that evidence proving one allegation will prove the other, but there is no logical tie. Unless Mr. Levitt intends to amend the petition with unexhausted claims,

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Case 1:04-cv-01072-ZLW-BNB

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Filed 10/17/2005

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generalized exculpatory evidence will not be relevant to these proceedings. This is not an opportunity for applicant to retry his case. 7. Respondents do not oppose applicant's motion to continue the briefing schedule. WHEREFORE, applicant's motion to permit appointment of an investigator should be denied.

JOHN W. SUTHERS Attorney General /s/ Cheryl Hone CHERYL HONE* Assistant Attorney General Criminal Appeals Attorneys for Plaintiff-Appellee 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-3134 *Counsel of Record

AG ALPHA: AG File:

DAXX-GZEW \\S_DOL_2\DATA\AP\APHONECZ\HABEAS\LOPEZ.INVESTIG.DOC

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Case 1:04-cv-01072-ZLW-BNB

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CERTIFICATE OF SERVICE I hereby certify that on October 17, 2005, I electronically filed the foregoing OPPOSITION TO MOTION TO PERMIT APPOINTMENT OF AN INVESTIGATOR with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected]

/s/ Cheryl Hone_____

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