Salazar v. Green
677 F. App'x 487
| 10th Cir. | 2017Background
- Gary Salazar, a Colorado prisoner, was convicted by a jury of conspiracy to commit first-degree murder, two counts of felony menacing, and possession of a weapon by a previous offender; convictions were affirmed on direct appeal but remanded for resentencing.
- After resentencing, Salazar’s Colo. R. Crim. P. 35(c) postconviction relief was denied; Colorado Court of Appeals affirmed and Colorado Supreme Court denied certiorari.
- Salazar filed a 28 U.S.C. § 2254 habeas petition in federal district court; most claims were dismissed as procedurally defaulted and one claim was denied on the merits; the district court declined a certificate of appealability (COA).
- Salazar’s sole exhausted claim alleged ineffective assistance of trial counsel for failing to object to the conspiracy jury instruction (arguing omission of an overt-act element and wording that allegedly shifted burden of proof).
- The state courts applied Strickland and found no prejudice: an overt act was undisputed (Salazar’s testimony about a shooting) and other jury instructions correctly stated the burden of proof.
- Salazar also raised a freestanding due process claim which the courts held he did not fairly present to state courts and therefore was procedurally defaulted; he did not show cause and prejudice or a miscarriage of justice to excuse the default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance — failure to object to conspiracy instruction (overt-act omitted and phrasing on elements) | Salazar: counsel should have objected because instruction omitted overt-act and used "each of the elements," allegedly shifting burden | State: omission harmless because an overt act was undisputed; overall instructions placed burden on prosecution | Court: No COA — state courts reasonably applied Strickland; no prejudice shown (overt act undisputed; burden properly allocated by other instructions) |
| Procedural default — freestanding due process claim about jury instructions | Salazar: jury-instruction errors independently violated due process | State: claim not fairly presented to state courts and now barred under Colo. R. Crim. P. 35(c); procedurally defaulted | Court: Default affirmed; Salazar failed to show cause and prejudice or fundamental miscarriage of justice to excuse default |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective-assistance standard of deficient performance and prejudice)
- Harrington v. Richter, 562 U.S. 86 (2011) (§ 2254 relief requires state-court decision to be unreasonable under clearly established federal law)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a COA and review when district court denies on procedural grounds)
- Edwards v. Carpenter, 529 U.S. 446 (2000) (ineffective assistance can constitute cause to overcome procedural default in certain contexts)
- Coleman v. Estep, [citation="391 F. App'x 697"] (10th Cir. 2010) (instruction language "each of the elements" does not violate due process when instructions taken together properly allocate burden)