Peo v. Vieyra

20CA0839 Peo v Vieyra 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0839

Arapahoe County District Court No. 93CR1937

Honorable Eric B. White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David A. Vieyra, II,

Defendant-Appellant.

ORDER AFFIRMED

Division VI

Opinion by JUDGE WELLING

Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

David A. Vieyra, II, Pro Se

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¶ 1 Defendant, David A. Vieyra, II, appeals the district court’s

order declining to take action on an “Affidavit of Truth” that he filed

in this criminal case. We affirm the district court’s order.

I. Background

¶ 2 In 1994, a jury found Vieyra guilty of first degree murder, first

degree burglary, two counts of menacing, and carrying a concealed

weapon, after he fatally shot the victim in the victim’s home. He

was sentenced to life in prison without the possibility of parole for

the murder count and consecutive prison terms totaling thirty-nine

years for the other counts. On direct appeal, a division of this court

affirmed the judgment of conviction and sentences. See People v.

Vieyra, (Colo. App. No. 95CA0429, Jan. 22, 1998) (not published

pursuant to C.A.R. 35(f)). The supreme court denied certiorari, and

this court issued its mandate in November 1998.

¶ 3 In 1999, Vieyra filed a habeas corpus petition in federal

district court. In 2002, a federal magistrate judge reviewed Vieyra’s

habeas petition and recommended that the petition be denied and

that the case be dismissed with prejudice. The federal district court

accepted the magistrate’s recommendation.

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¶ 4 In 2003, Vieyra filed a pro se Crim. P. 35(c) motion (first

motion), alleging new constitutional claims that he had not alleged

in his direct appeal or in his federal habeas petition. After counsel

was appointed and afforded an opportunity to supplement the

motion, the postconviction court issued a written order summarily

denying Vieyra’s first motion in its entirety. The order denying the

first motion was affirmed by a division of this court. See People v.

Vieyra, 169 P.3d 205 (Colo. App. 2007).

¶ 5 In 2009, Vieyra filed a second pro se Crim. P. 35(c) motion

(second motion). The court summarily denied Vieyra’s second

motion without a hearing after finding that it was successive and

that the claims alleged therein failed on the merits. A division of

this court again affirmed. See People v. Vieyra, (Colo. App. No.

10CA1325, Aug. 11, 2011) (not published pursuant to C.A.R. 35(f)).

¶ 6 On March 9, 2020, Vieyra filed an “Affidavit of Truth” in which

he asserted, among other things, that he had filed a contract with

the Colorado Secretary of State in 2016 making him a “foreign

sovereign,” which, in his view, meant he enjoyed “immunities”

provided by the Federal Sovereign Immunities Act. He concluded

that no court in the United States had jurisdiction over him as a

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“foreign sovereign” and this case against him “must be dismissed.”

He also contended that Arapahoe County owed him “two million

dollars per day for unlawful confinement.”

¶ 7 The district court reviewed Vieyra’s Affidavit of Truth, noted

that it was taking no action, and entered the following order:

THE COURT, having reviewed the Defendant’s

Affidavit of Truth, and having reviewed the

Court’s own file, hereby observes that the

within action is criminal in nature wherein the

Defendant was convicted by jury. His

“Affidavit” fails to cite any valid authority upon

which the Court may or must act and has no

legal force or effect upon this Court.

Therefore, any ostensible request for relief

contained in the “Affidavit” is DENIED as

devoid of any legal merit whatsoever.

¶ 8 Vieyra appeals the district court’s order denying any relief in

connection with his Affidavit of Truth.

II. Analysis

¶ 9 The averments and contentions Vieyra sets forth in his

Affidavit of Truth are consistent with those asserted by adherents to

the “sovereign citizen” movement. See People v. Lavadie, 2021 CO

42, ¶ 7 n.1 (“The ‘sovereign citizen’ movement is an ideology that

‘rejects the legitimacy of United States jurisdiction over its

adherents.’” (quoting United States v. Pryor, 842 F.3d 441, 445 n.2

4

(6th Cir. 2016))); see also People v. Anderson, 2020 COA 56, ¶ 17

n.4 (“Those who affiliate with ‘Sovereign Citizenship’ believe in a

particular interpretation of the common law and believe they are

not subject to governmental statutes, proceedings, or jurisdictions.

They believe the individual, a ‘flesh and blood’ man (denoted in

lowercase letters) is separate from a legally fictitious commercial

entity imposed upon them by issuance of a birth certificate and

other official documents (as governmental documents usually

denote names in all capital letters).”).

¶ 10 As noted above, the district court declined to take any action

on Vieyra’s Affidavit of Truth. The best way to understand what

Vieyra is asking for in this appeal is to simply look at what he says

in his opening brief. See Barnett v. Elite Props. of Am., Inc., 252

P.3d 14, 19 (Colo. App. 2010) (An appellant “must inform the court

both as to the specific errors asserted and the grounds, supporting

facts, and authorities to support their contentions.” (citing Westrac,

Inc. v. Walker Field, 812 P.2d 714, 718 (Colo. App. 1991))). In his

opening brief to this court, Vieyra’s argument, in its entirety, reads

as follows:

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I believe that because the Legal Fiction, David

A Vieyra, II., is the entity that made a plea to

the charges, and the Legal Fiction was tried by

a jury, I, David A Vieyra, should be allowed to

file an AFFIDAVIT and have it recorded onto the

Public Record.

I, David A Vieyra, am a flesh and blood human

man born of God and act under the SUPREME

JURISDICTION of God. Under International

Maritime Law, I am allowed to file an

AFFIDAVIT into the municipal corporation,

ARAPAHOE COUNTY DISTRICT COURT. This

JUDGE must acknowledge the custom of

International Maritime Law, the Law Merchant

or what is now called Uniform Commercial Code

ex officio (by virtue of the authority implied by

office).

(Emphasis added.)

¶ 11 He then closes his brief with the following conclusion:

I pray that this HONORABLE JUDGE will

require the ARAPAHOE COUNTY JUDGE to

allow me to file AFFIDAVITS and have them

recorded by the COUNTY RECORDER onto the

PUBLIC RECORD. I pray that this

HONORABLE JUDGE will require the

ARAPAHOE COUNTY JUDGE to answer my

AFFIDAVIT OF TRUTH point-by-point as the

FEDERAL LAW dictates.

¶ 12 Based on the contents of his opening brief, it appears that

Vieyra is advancing two arguments on appeal: (1) he should be

allowed to file the Affidavit of Truth and “have it recorded onto the

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[p]ublic [r]ecord”; and (2) this court should require the district court

to “answer” the Affidavit of Truth “point-by-point.” We aren’t

persuaded that he is entitled to any relief.

¶ 13 To the extent that he is seeking to be permitted to file the

Affidavit of Truth (and have it be part of the “public record”), such a

request is moot. This is because the record reflects that the

affidavit was accepted for filing by the district court and is part of

the court record. There is no further relief for this court to provide

in this regard.

¶ 14 To the extent that Vieyra is requesting that we order the

district court (or anyone else) to respond to the contents of his

Affidavit of Truth, we decline to do so. There is simply no legitimate

basis for requiring the district court to respond to Vieyra’s Affidavit

of Truth, and Vieyra cites none. Indeed, the district court acted

properly by summarily denying the relief Vieyra requested in his

Affidavit of Truth. See, e.g., United States v. Benabe, 654 F.3d 753,

767 (7th Cir. 2011) (“Regardless of an individual’s claimed status of

descent, be it as a ‘sovereign citizen,’ a ‘secured-party creditor,’ or a

‘flesh-and-blood human being,’ that person is not beyond the

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jurisdiction of the courts. These theories should be rejected

summarily, however they are presented.”).

¶ 15 To the extent that Vieyra’s Affidavit of Truth can be construed

as a Crim. P. 35(c) postconviction motion, it is properly summarily

denied as successive. See Crim. P. 35(c)(3)(VII); People v. Taylor,

2018 COA 175, ¶ 17. And finally, to the extent that Vieyra raised

any additional claims below, we deem them abandoned for failure to

raise them in his briefing to this court. See People v. Delgado, 2019

COA 55, ¶ 9 n.3 (“We deem abandoned, and won’t address, the

seven claims that defendant raised in his Rule 35(c) motion but

didn’t discuss on appeal.”); People v. Ortega, 266 P.3d 424, 428

(Colo. App. 2011) (“We also deem abandoned any additional

contentions which [the defendant] raised in his postconviction

motion and which have not been pursued on appeal.”).

III. Conclusion

¶ 16 For the reasons set forth above, the district court’s order is

affirmed.

JUDGE FOX and JUDGE JOHNSON concur.