ROBERT E. BLACKBURN, District Judge.
This matter is before me on the
Applicant was convicted by a jury of felony murder, aggravated robbery, and conspiracy to commit aggravated robbery in Adams County District Court Case No. 96CR1640. See People v. Fisher, 9 P.3d 1189, 1190 (Colo. App. 2000) (Fisher I).
The Colorado Court of Appeals summarized the relevant facts as follows:
Id. Applicant was sentenced to a term of life imprisonment without the possibility of parole.
On October 1, 2001, Applicant filed, pro se, a motion for state post-conviction relief pursuant to Colo. Crim. P. Rule 35(c) and counsel was appointed. [## 1-2 & 7-1 at 17]. The state district court eventually held an evidentiary hearing and denied the Rule 35(c) motion on November 18, 2009. [# 7-1 at 10-11; # 7-3]. The Colorado Court of Appeals affirmed the trial court's order. See People v. Fisher, No. 09CA2727 (Colo. App. Apr. 19, 2012) (unpublished) (Fisher II). [# 1-8]. On October 15, 2012, the Colorado Supreme Court denied Applicant's petition for certiorari review. [# 7-2].
Applicant initiated this action on January 22, 2013. He asserts two claims in the Application: (1) that his Sixth Amendment right to counsel was violated because his attorneys labored under an actual conflict of interest; and, (2) his right to due process was violated because the jury instruction on complicity failed to apprise the jury of the requisite mental state for the crime of accomplice to felony murder. [# 1, at 20, 24].
In a Pre-Answer Response, Respondents argued that the Application was untimely and that there was no basis for equitable tolling. [# 7 at 6-12]. Respondents conceded, however, that Applicant exhausted available state court remedies for his claims. [Id. at 18-21].
As discussed above, this action was dismissed as untimely on March 18, 2013. [# 9]. Following reversal and remand by the Tenth Circuit, the case was drawn to the undersigned. I address below the merits of Applicant's claims under the deferential AEDPA standard of review.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is whether the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
House, 527 F.3d at 1018.
The court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,
Harrington v. Richter, 562 U.S. at 101 (internal quotation marks and citations omitted). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1398 (2011).
Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 562 U.S. at 102 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Richter, 562 U.S. at 103. See also White v. Woodall, 134 S.Ct. 1697 (2014) (citing and quoting Richter).
The court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Applicant claims that his Sixth Amendment right to counsel was violated because trial counsel labored under an actual conflict of interest. Specifically, Applicant asserts that while he was represented by attorneys from the Brighton office of the Colorado Public Defender (CPD), the Denver office of the CPD represented a witness endorsed by the prosecution in an unrelated case. [# 1 at 20].
The Sixth Amendment right to counsel is a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the ineffective assistance of counsel is demonstrated where: (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Id. at 687-88. Prejudice exists when there is a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different. Id. at 693. The likelihood of a different result must be substantial, not just conceivable. Id.
An exception to the two-part showing required under Strickland arises, and the ineffectiveness of counsel is presumed where counsel "`actively represented conflicting interests' and `an actual conflict of interest adversely affected [the defense] lawyer's performance.'" Id. at 692 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). To trigger Sixth Amendment concerns, there must be more than a potential conflict of interest or "a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002).
However, the Supreme Court has not applied Cuyler's presumption of prejudice outside the context of defense counsel's concurrent representation of multiple defendants in the same criminal proceeding. See Mickens, 535 U.S. at 176 (stating that it is "an open question" whether the holding in Cuyler applies outside the context of concurrent, multiple representation). See also Benge v. Johnson, 474 F.3d 236, 244-45 (6th Cir. 2007) (". . . [Cuyler] covers only cases of `joint representation at trial'"; no clearly established federal law prohibits representation of defendant and a prosecution witness in two different, unrelated and non-simultaneous proceedings); Phillips v. United States, 668 F.3d 433, 436 (7th Cir. 2012) (assuming that defense counsel's prior representation of a prosecution witness created a conflict of interest, "such conflict was not the sort of conflict that makes legal representation automatically `ineffective[;]' [p]rejudice must be shown"); Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) ("The Supreme Court has not expanded [Cuyler's] presumed prejudice standard beyond cases involving multiple representation. . . ."). Accordingly, a habeas petitioner asserting a conflict of interest claim that does not involve concurrent representation of multiple defendants must satisfy the Strickland prejudice standard. See Benge, 474 F.3d at 245; Phillips, 668 F.3d at 436; Beets, 65 F.3d at 1272.
Applicant asserted his conflict of interest claim in a state post conviction motion filed pursuant to Colo. Crim. P. Rule 35(c). The state district court held an evidentiary hearing, at which the defense attorneys testified.
[# 1-8, at 6].
[Id. at 6-7].
After reviewing the pertinent Colorado case law, the state post conviction court determined the following:
In Fisher II, the state appellate analyzed Applicant's conflict-of-interest claim under the following legal principles:
[# 1-8, at 3-5].
The state appellate court then concluded that the following factual findings made by the district court "were amply supported by the record." [Id. at 10].
[Id.].
The Court of Appeals affirmed the district court's order, concluding that Applicant had failed to demonstrate an actual conflict of interest that adversely affected the defense attorneys' representation of him. [# 1-8, at 10-11].
As an initial matter, I find and conclude that the Colorado Court of Appeals' decision could not have been contrary to or an unreasonable application of, Cuyler because Applicant does not assert that his trial attorneys represented him and a co-defendant in the same criminal case. See House, 527 F.3d at 1018 (if there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1)). However, even if the Cuyler standard applies to the facts of this case, I find that Applicant is not entitled to federal habeas relief.
First, the state post conviction court found that Applicant's trial attorneys had not ever represented M.S., or learned any confidences about him or his criminal cases from any other regional CPD office. Further, Applicant's trial attorneys felt "no loyalty" to M.S. Based on these facts, which are presumed correct, are supported by the state court record, and are not contested by Applicant, the state appellate court concluded reasonably that M.S.'s representation by other regional CPD offices presented a potential, rather than an actual, conflict of interest. [# 1-8, at 9].
Second, Applicant has failed to show that the potential conflict had an adverse affect on counsel's representation. Applicant suggested in the state post-conviction proceeding that his trial attorneys failed to impeach M.S.'s statement to the detective with M.S.' prior convictions because of counsel's loyalty to M.S. I find no evidence in the record to support Applicant's contention.
A detective testified at trial as to M.S.'s statements because the trial court determined that M.S. was "unavailable."
Defense counsel's testimony at the Rule 35(c) hearing refutes Applicant's contention that counsel felt a sense of loyalty to M.S. that caused counsel not to cross examine the detective as to M.S.'s prior felony convictions. Moreover, Applicant has not pointed to any other clear and convincing evidence to support his assertion.
Applicant's other "adverse effect" arguments are equally unavailing. He emphasized at the Rule 35(c) hearing that defense counsel did not attempt to interview M.S. until 2-3 weeks prior to trial, instead of listing M.S. on its initial witness interview list, prepared several months earlier.
Next, Applicant contended in the state post conviction proceeding that defense counsel failed to examine the detective about a deal M.S. made with the prosecution in exchange for his cooperation in Applicant's criminal case.
Applicant's final contention in the state post-conviction proceeding was that defense counsel had a "personal interest" in not disclosing the potential conflict resulting from M.S.'s involvement in this case because of an "appearance of impropriety" that may have resulted in disciplinary sanctions.
In sum, to the extent Cuyler applies, I find and conclude that the Colorado Court of Appeals' determination that Applicant failed to establish an actual conflict of interest that adversely affected counsel's performance comported with Supreme Court law and is supported by the evidence presented in the state court proceeding. See, e.g., Phillips, 668 F.3d at 436 (in the absence of evidence that defense counsel learned privileged information while representing prosecution witness in prior, unrelated proceeding, such that cross-examination of witness might be limited, there was "not the smallest reason to believe" any conflict adversely affected counsel's performance); Jones v. Polk, 401 F.3d 257, 267-68 (4th Cir. 2005) (state courts reasonably rejected Cuyler v. Sullivan claim, where applicant failed to show how defense counsel's concurrent representation of a prosecution witness in an unrelated domestic relations matter actually conflicted with his representation of applicant; there was no evidence counsel learned privileged information limiting his cross-examination of the witness, and counsel gave strategic reasons for not crossing witness on certain subjects).
I further find and conclude that the state appellate court's decision was not contrary to, or an unreasonable application of, the Strickland standard. Although the Colorado Court of Appeals did not analyze Applicant's claim under Strickland, this Court is bound to uphold the state courts' decision rejecting Applicant's Sixth Amendment claim so long as the result was not contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). Applicant has failed to establish that counsels' performance was deficient or that the outcome of his trial would have been different if not for the alleged potential conflict of interest. See Strickland, 466 U.S. at 687-88.
As discussed above, M.S. was a tangential witness. Even if defense counsel had conducted a more stringent cross examination of the detective concerning M.S.'s statements to the police, M.S. prior convictions, and any deal M.S. had been offered by law enforcement in exchange for his cooperation, Applicant does not explain how this additional questioning would have resulted in a reasonable probability of acquittal on the aggravated robbery and felony murder charges. Because M.S. was not present when the robbery and murder occurred, his statements could not possibly have exonerated the Applicant.
In sum, because the Colorado Court of Appeals' decision did not run afoul of Cuyler or Strickland, and was supported by the evidence presented in the state court proceeding, Applicant is not entitled to habeas corpus relief for his first claim.
For his second claim, Applicant contends that his right to due process was violated because the jury instruction on complicity failed to apprise the jury of the requisite mental state for the crime of accomplice to felony murder. [# 1, at 24].
Jury Instruction No. 10 stated:
See also COLO.REV.STAT. (C.R.S.) § 18-1-603 (2015).
Applicant asserts that the complicity instruction was deficient because the phrase "all or part of" in the second element permitted the jury to convict applicant of felony murder even if he only knew that the co-defendant (the shooter) intended to commit "part of" felony murder — namely the predicate crime of robbery. [# 1, at 26]. Applicant maintains that under Colorado law, he could only be convicted of felony murder as a complicitor if he intended both the robbery and that someone be killed during that robbery. [Id. at 26-27].
The Due Process Clause requires the prosecution to prove every element of a charged offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). To demonstrate a constitutional error from a jury instruction in a state criminal trial, a habeas petitioner must demonstrate (1) an "ambiguity, inconsistency, or deficiency" in the instruction, and, (2) that there was "`a reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotation marks and citations omitted). See also Victor v. Nebraska, 511 U.S. 1, 6 (1994) (the constitutional inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard."). In making this determination, the jury instruction "`may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). A "slight possibility" that the jury misapplied the jury instruction is not enough. See Weeks v. Angelone, 528 U.S. 225, 236 (2000). Instead, the pertinent question "is `whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147).
In Fisher I, the Colorado Court of Appeals discussed the legal principles of complicity liability under Colorado law before addressing the merits of Applicant's claim:
Fisher I, 9 P.3d at 1191.
The state appellate court then determined:
(Id. at 1191-92).
The state appellate court's determinations that, under Colorado law, it is proper "to give an instruction on complicity in a felony murder trial when there is evidence to support a complicity theory," Fisher I, 9 P3d at 1191, and that the complicity instruction "correctly informed the jury of the elements of proof required to hold defendant criminally liable for felony murder under the theory of complicity," id. at 1192, are determinations of state law that are binding on this federal habeas court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that "a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."). As such, Applicant cannot show that the instruction contained "some `ambiguity, inconsistency, or deficiency,'" as required by Supreme Court law. See Waddington, 555 U.S. at 190-91.
Moreover, there is no reasonable likelihood that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crimes of felony murder and aggravated robbery beyond a reasonable doubt.
In Colorado, a person commits first degree (felony) murder when:
Section 18-3-102(1)(b), C.R.S. (2015). A robbery is committed when a "person knowingly takes anything of value from a person or presence of another by the use of force, threats, or intimidation." C.R.S. § 18-4-301(1). A robbery is aggravated when the perpetrator: "is armed with a deadly weapon with intent, if resisted to kill, maim, or wound the person robbed. . ." § 18-4-302(1)(a), C.R.S. (2015), or, "knowingly wounds or strikes the person robbed . . . with a deadly weapon." § 18-4-302(1)(b) (2015). The jury was instructed on the elements of the charged crimes under Colorado law.
There was sufficient evidence at trial to support a reasonable inference by the jury that Applicant and the co-defendant (the shooter) intended to obtain drugs from the victim by using force (i.e, scaring the victim with a gun), if necessary, and that the co-defendant shot the victim with a gun during commission of the robbery.
I find and conclude that the Colorado Court of Appeals' determination was not contrary to, or an unreasonable application of Supreme Court law. The jury instruction on complicity, when considered together with the other instructions and the trial record, did not result in a violation of Applicant's federal due process rights. Therefore, Applicant is not entitled to federal habeas relief for his second claim.
Under 28 U.S.C. § 2253(c)(2), this Court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing is made only when a prisoner demonstrates that jurists of reason would find it debatable that a constitutional violation occurred, and that the district court erred in its resolution. Mr. Fisher has not made a substantial showing of the denial of a constitutional right. Therefore, a certificate of appealability is denied.
Under 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal.
1. That the Application for a Writ of Habeas Corpus 2254 [# 1], filed on January 22, 2013, by Applicant, Michael Fisher, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C. § 2253(c); and
4. That leave to proceed in forma pauperis on appeal is DENIED without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
