CHRISTINE M. ARGUELLO, District Judge.
The matter before the Court is an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed pro se by Applicant. (Doc. # 6). The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).
In 1988, Mr. Hardin was convicted by a jury of two counts of aggravated robbery, two counts of felony murder, and two counts of murder after deliberation. He was sentenced to consecutive terms of sixteen years for each aggravated robbery conviction and life imprisonment for each felony murder.
The Colorado Court of Appeals provides the following detailed account of the background in this case:
(Doc. # 13-9 at 2-6) (People v. Hardin, 405 P.3d 379 (Colo. App. 2016) (Hardin III).
Following the trial court's lengthy written order, issued on February 26, 2014, denying Mr. Hardin's postconviction claims, (Doc. # 13-7), he appealed the denial, (Doc. # 13-8). The Colorado Court of Appeals affirmed the denial of his postconviction claims on December 1, 2016. Hardin III, (Doc. # 13-9). The Colorado Supreme Court denied certiorari review on October 16, 2017. (Docs. # 13-10 and 13-11).
Mr. Hardin filed the instant federal habeas corpus action on November 2, 2017. (Doc. # 1). In the Amended Application, filed on November 28, 2017, Mr. Hardin asserts the following ten claims for relief:
(Doc. # 6).
On November 30, 2017, Magistrate Judge Gordon P. Gallagher ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if they intended to raise either or both of those defenses in this action. (Doc. # 7). After receiving an extension of time, Respondents filed their Pre-Answer Response (Doc. # 13) on January 18, 2018, arguing that the Application appeared timely but that Claims One, Two, Four, Five, Seven, Eight, Nine and Ten were procedurally defaulted. Additionally, Respondents argued that Claims One and Two were moot, and Claims Three, Six, and (part of) Nine failed to present a cognizable habeas claim. Mr. Hardin filed a Reply (Doc. # 16) on March 8, 2018, and a Supplement to the Reply (Doc. # 17) on March 30, 3018.
The Court reviewed the Pre-Answer Response, the Reply, and the Supplement to the Reply, and filed an Order to Dismiss in Part and for an Answer on May 4, 2018. See (Doc. # 22). In the May 4 Order, the Court determined that Claims One, Four, Seven, Eight and Ten were procedurally defaulted and barred from federal habeas review. Id. Additionally, Claim Two was dismissed as moot and Claim Six was dismissed for failure to state a cognizable habeas claim. Id. Respondents were directed to file an answer in compliance with Rule 5 of the Rules Governing Section 2254 Cases that fully addressed the merits of Claims Three and Five. Id. Additionally, pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), the Court deferred ruling on the applicability of a procedural bar to the ineffective assistance of counsel allegations asserted in Claim Nine, pending receipt of the state court record and Respondents' argument in the Answer as to whether the claim is substantial.
Respondents filed an Answer on June 28, 2018. (Doc. # 30). Applicant was granted an extension of time to file a Reply. He filed a Traverse on August 22, 2018. (Doc. # 33). After reviewing the Amended Application, the Answer, the Traverse, and the state court record, the Court concludes, for the following reasons, that the Application should be denied and the case dismissed with prejudice.
The remaining claims for review on the merits, Claims Three and Five, are as follows:
Additionally, Claim Nine, which was procedurally defaulted, but might be subject to review pursuant to Martinez v. Ryan is:
(Doc. # 6).
Section 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 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 pursuant to § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time her conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of." Greene v. Fisher, 565 U.S. 34, 39 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1987).
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." Williams, 529 U.S. 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 one. 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. 86, 101 (2011) (internal quotation marks and citation omitted). The Court "must determine what arguments or theories supported or .. . could have supported[ ] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citation omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (internal quotation marks and citation omitted).
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.
Furthermore,
Richter, 562 U.S. at 103.
The Court reviews claims of 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 a court to grant a writ of habeas corpus only if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and Applicant bears the burden of rebutting the presumption by clear and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). "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)).
A claim, however, may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Richter, 562 U.S. at 98 ("[D]etermining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning"). Furthermore, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.
In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [its] independent review of the record and pertinent federal law persuades [it] that [the] result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "This `independent review' should be distinguished from a full de novo review of the [applicant's] claims." Id. (citation omitted). Likewise, the Court applies the AEDPA (Antiterrorism and Effective Death Penalty Act) deferential standard of review when a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
Mr. Hardin alleges in Claim Three that his due process and equal protection rights were violated because of the over eight-year delay in adjudicating his direct appeal. The Colorado Court of Appeals addressed the merits of this claim and rejected it as follows:
(Doc. # 13-2 at 7-9) (Hardin I).
Mr. Hardin is not entitled to relief under § 2254(d)(2) with respect to Claim Three because the claim is not premised on any factual error. Therefore, Mr. Hardin is entitled to relief only if the decision of the Colorado Court of Appeals was contrary to or an unreasonable application of clearly established federal law under § 2254(d)(1). According to Respondents, relief under § 2254(d)(1) is not available because there is no clearly established federal law regarding the right to a speedy appeal.
If there is no clearly established federal law, that is the end of the Court's inquiry under § 2254(d)(1). House, 527 F.3 at 1018. 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." Williams, 529 U.S. at 412. Furthermore,
House, 527 F.3d at 1016.
Mr. Hardin argues that the clearly established federal law of Barker v. Wingo, 407 U.S. 514 (1972), applies to his claim. Indeed, the Colorado Court of Appeals cited to the holding of Barker in rejecting Mr. Hardin's claim. See (Doc. # 13-2 at 7-9). However, the United States Supreme Court's holding in Barker established only the contours of the right to a speedy trial, not the right to a speedy appeal. Barker, 407 U.S. at 515-516. The Supreme Court did not expressly extend its holding in Barker to apply to the right of a speedy appeal. Although a majority of circuit courts, including the Tenth Circuit, have held that an excessive appellate delay may violate the Due Process Clause in some circumstances, see Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994), there is no Supreme Court precedent establishing such a constitutional right. The Supreme Court has explained that "[i]f this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar." Williams v. Taylor, 529 U.S. 362, 381 (2000). Therefore, although this Court has serious concerns over the lengthy delay Mr. Hardin experienced during his appellate and postconviction proceedings, there is no Supreme Court decision holding that excessive delay in a direct appeal is a violation of the Due Process Clause of the United States Constitution.
The absence of clearly established federal law ends the Court's inquiry under § 2254(d)(1). See House, 527 F.3d at 1018. For these reasons, Mr. Hardin is not entitled to relief with respect to Claim Three.
In Claim Five, Mr. Hardin argues that the trial court erred in failing to provide testimony requested by the jury during its deliberations, which violated his constitutional rights. During deliberations, the jury made a written request for a transcript of the testimony of Lloyd Rhodes, the robbery victim who had escaped. Although the trial transcripts and state court record provided to this Court do not provide the specifics of the jury's question or the trial court's answer, the parties do not dispute that: the jury submitted a request for the transcript of the testimony of Lloyd Rhodes; the trial court consulted with the parties regarding the jury's request; the parties did not object to the trial court's response to the jury, which was: "No transcript of Lloyd's testimony has been prepared from the Reporter's shorthand notes. Please rely on your individual and collective memories of the testimony." See (Doc. # 13-1 at 3, 33).
The Colorado Court of Appeals rejected this claim as follows:
(Doc. # 13-2 at 10-11) (Hardin I).
Mr. Hardin is not entitled to relief under § 2254(d)(2) with respect to Claim Five because the claim is not premised on any factual error. Therefore, Mr. Hardin is entitled to relief only if the decision of the Colorado Court of Appeals was contrary to or an unreasonable application of clearly established federal law under § 2254(d)(1). In the Answer, Respondents argue that it is unaware of any authoritative decision of the Supreme Court regarding a trial court's response to a deliberating jury's request for a transcript. (Doc. # 30 at 26).
In his Amended Application, Applicant fails to identify any clearly established federal law that renders the trial court's decision and response to the jury's question unconstitutional under these circumstances. In his Traverse, Mr. Hardin argues that the trial court's refusal to read-back the requested testimony denied him a fair trial as was clearly established in Bruton v. United States, 391 U.S. 123, 135 (1968) and Screws v. United States, 325 U.S. 91, 107 (1965). (Doc. # 33 at 12). In Bruton, the Supreme Court held that the Sixth Amendment rights of a defendant are violated if the defendant's non-testifying codefendants make an extrajudicial confession that implicates the defendant and the Government introduces the confession into evidence at their joint trial, even if the jury is instructed to consider the evidence only against the codefendant. Bruton, 391 U.S. at 137. In Screws, the Supreme Court held that the term "willful[]" in the federal criminal statute regarding civil rights violations, means either "particular purpose" or "reckless disregard." See, e.g., United States v. Johnstone, 107 F.3d 200, 208-09 (3d Cir. 1997) (discussing Screws).
Neither of these Supreme Court cases relied upon by Mr. Hardin involve facts that are at all similar or closely related to this case. Further, the Supreme Court did not expressly extend the legal rules articulated in Bruton and Screws to the circumstances in this case.
Additionally, the Court has not found any clearly established federal law regarding a trial court's responsibilities to allow a jury access to trial transcripts. See, e.g., Burns v. Lafler, 328 F.Supp.2d 711, 723 (E.D. Mich. 2004) ("There is no United States Supreme Court decision requiring judges to re-read testimony or to provide transcripts to jurors upon their request."). Therefore, the Court agrees with Respondents that there is no clearly established federal law relevant to the specific constitutional argument presented in Claim Five. As noted above, the absence of clearly established federal law ends the Court's inquiry under § 2254(d)(1). See House, 527 F.3d at 1018. For these reasons, Mr. Hardin is not entitled to relief with respect to Claim Five.
In claim nine, Applicant asserts that he received ineffective assistance of trial counsel because his trial counsel:
See (Doc. # 6 at 34-41).
As discussed in the Order to Dismiss in Part, Mr. Hardin's postconviction counsel included the ineffective assistance of trial counsel sub-claims based on failure to investigate and present evidence (sub-claims (i)(A) through (i)(F)) in the initial-review collateral proceeding. However, those sub-claims were not presented on postconviction appeal and, therefore, they are procedurally barred. See (Doc. # 22 at 15-17).
As for the sub-claims involving trial counsel failing to object (sub-claims (ii)(A) through (ii)(F)), in the Order to Dismiss in Part, the Court stated that "it appears [Mr. Hardin's] postconviction counsel failed to assert an ineffective assistance of trial counsel claim based on numerous failures of counsel to object. Applicant initially included such a claim in his opening brief on direct appeal and the claim is included as part of claim nine in this habeas action." (Doc. # 22 at 22.) As noted, these ineffective assistance sub-claims based on trial counsel failing to object were included in Mr. Hardin's opening brief on direct appeal. (Doc. # 13-1 at 36-39.) However, the Colorado Court of Appeals failed to address the merits of the sub-claims, concluding that an assertion of ineffective assistance of counsel "can be better resolved in a post-conviction proceeding." (Doc. # 13-2 at 11) (Hardin I). If Mr. Hardin's postconviction counsel provided ineffective assistance of counsel by failing to assert these claims in his initial postconviction motion, and the claims are "substantial," the procedural default will be excused pursuant to Martinez v. Ryan.
As such, in the Order to Dismiss in Part (Doc. # 22), the Court deferred ruling on the Respondents' assertion of the procedural default defense with respect to the Applicant's ineffective assistance of counsel claims based on trial counsel failure to object (sub-claims (ii)(A) through (ii)(F)), pursuant to Martinez v. Ryan. In Martinez, the Supreme Court held:
Martinez, 566 U.S. at 17. To constitute cause to excuse a procedural default, Applicant must show that he received ineffective assistance of postconviction counsel and that the procedurally defaulted ineffective assistance of trial counsel claim is "substantial"— i.e., has "some merit." Id. at 15.
In his Traverse, Mr. Hardin points out that in the Order to Dismiss in Part, the Court references that he must show that his ineffective assistance of trial counsel claims have "substantial merit." See (Doc. # 33 at 15); see also (Doc. # 22 at 25). Mr. Hardin is correct that to demonstrate cause for the procedural default under Martinez, the ineffective assistance of trial counsel claim must just have "some merit;" the claim is not required to have "substantial merit." The specific wording of Martinez states that in order for a claim to be "substantial" claim, the prisoner must
Martinez, 566 U.S. at 15. Under the standard for issuing a certificate of appealability, which the Martinez Court incorporated in its definition of substantiality, "a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller—El, 537 U.S. at 336, (internal quotation marks and alterations omitted).
In the Answer, Respondents argue that the procedural default of these claims cannot be excused pursuant to Martinez v. Ryan because the sub-claims (ii)(A), (B), (C), and (F) were raised by postconviction counsel during the initial postconviction proceedings and sub-claims (ii)(D) and (E) are not substantial.
Although not previously argued, Respondents now assert that the ineffective assistance of counsel sub-claims (ii)(A), (B), (C), and (F) were raised and argued by postconviction counsel during the initial-review postconviction proceedings. (Doc. # 30 at 32-36). To support their argument that the sub-claims were raised and argued by postconviction counsel during the initial-review postconviction proceedings, Respondents cite to the "Supplemental To Pro Se Motion for Post-Conviction Review Filed on September 17, 1999, Pursuant to Crim. P. 35(c) and Request for Witness Testimony and Hearing on All Claims," ("Supplement to the 35(c) Motion") (Doc. # 30-2), which was provided to this Court for the first time when the Respondents filed their Answer. The Court has reviewed the Supplement to the 35(c) Motion, which included ineffective assistance of trial counsel claims for failure to object to a duplicitous charge, failure to object to trial court's response to the jury's questions regarding the testimony of Mr. Rhodes, failure to object to an incomplete Curtis-advisement, and failure to object to and impeach prejudicial identification of participants by witnesses. (Doc. # 30-2 at 36-42).
The claim in the Supplement to the 35(c) Motion regarding ineffective assistance of trial counsel for failure to object to a duplicitous charge corresponds to sub-claim (ii)(A) in the instant habeas application for failure to object to the indictment which charged all aggravated robberies in one count. Similarly, the claim in the Supplement to the 35(c) Motion regarding ineffective assistance of trial counsel for failure to object to the trial court's response to the jury's questions regarding the testimony of Mr. Rhodes corresponds to sub-claim (ii)(F) in the instant habeas application for failure to object when the trial court refused to provide Lloyd Rhodes testimony to the jury upon its request. Thus, sub-claims (ii)(A) and (ii)(F) were presented by Mr. Hardin's postconviction counsel during the initial postconviction proceedings. Therefore, the procedural default of these claims cannot be excused by Martinez. Sub-claims (ii)(A) and (ii)(F) will be dismissed as procedurally barred.
Respondents also argue that sub-claims (ii)(B) and (ii)(C) were raised by postconviction counsel during the initial review postconviction proceedings. As support for this argument, Respondents cite to the claim presented in the Supplement to the 35(c) Motion regarding ineffective assistance of trial counsel for failure to object to a duplicitous charge. The claim in the Supplement to the 35(c) Motion was based on ineffective assistance of trial counsel for failure to object to the charges included in the indictment, not trial counsel's failure to object to Mr. Hardin's sentence. Both sub-claims (ii)(B) and (ii)(C) are based on trial counsel's failure to object to Mr. Hardin's sentence. Thus, contrary to the argument by Respondents, after review of the Supplement to the 35(c) Motion (Doc. # 30-2), the Court cannot confirm that sub-claims (ii)(B), failure to object to the sentences for felony murder since Mr. Hardin was acquitted of the underlying felony, and (ii)(C), failure to object to Mr. Hardin's sentences for aggravated robbery since he was acquitted of aggravated robbery, were raised during the initial postconviction proceedings.
Therefore, pursuant to Martinez, if these ineffective assistance of trial counsel claims are substantial and Mr. Hardin's postconviction counsel provided ineffective assistance by failing to raise them, the procedural default of the claims may be excused.
To establish that counsel was ineffective, Applicant must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice to his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). If Applicant fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claim must be dismissed. See Strickland, 466 U.S. at 697. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "A court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within a wide range of reasonable professional assistance." United States v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011) (citations and internal quotation marks omitted). It is an applicant's burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances, see Strickland, 466 U.S. at 689, and that the errors were so serious that "counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," Rushin, 642 F.3d at 1307 (quoting Richter, 562 U.S. at 104) (emphasis, citation, and internal quotation marks omitted). An applicant must show counsel failed to act "reasonab[ly] considering all the circumstances." Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688).
Under the prejudice prong, an applicant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In assessing prejudice under Strickland, the question is whether it is reasonably likely the result would have been different. Richter, 562 U.S. at 111. "The likelihood of a different result must be substantial, not just conceivable." Id. at 112 (citing Strickland, 466 U.S. at 693).
Mr. Hardin has failed to demonstrate that his ineffective assistance of trial counsel claims in sub-claims(ii)(B) and (ii)(C) are substantial and/or that his postconviction counsel provided ineffective assistance by failing to raise the claims.
Sub-claim (ii)(B) alleges that Mr. Hardin received ineffective assistance of counsel because his trial counsel failed to object to the sentences for felony murder since Mr. Hardin was acquitted of the underlying felony. Apparently, Mr. Hardin is referring to the fact that he was acquitted of the aggravated robbery charge as to Mr. Fisher but sentenced to felony murder as to Mr. Fisher. He was originally sentenced to felony murder as to Mr. Irving also, but the Colorado Court of Appeals vacated the conviction and sentence for felony murder as to Mr. Irving because he had also been convicted and sentenced for the underlying felony of aggravated robbery of Mr. Irving, (Doc. #13-2 at 3-5) (Hardin I). Therefore, the appellate court vacated the felony murder conviction as to Mr. Irving and remanded for the trial court to sentence Mr. Hardin for murder after deliberation as to Mr. Irving. (Id.).
The felony murder sentence as to Mr. Fisher was based on the felony aggravated robberies of Mr. Irving and Mr. Rhodes. See (id. at 2) (noting that "the verdicts reflect that the jury found defendant not guilty of robbing one of the two men who were murdered, but guilty of felony murder because the murder of that victim occurred during the course of the robbery of the other two."). Therefore, Mr. Hardin's underlying premise that he should not have been sentenced for felony murder of Mr. Fisher because he was acquitted of felony aggravated robbery of Mr. Fisher lacks merit. Because the underlying issue lacks merit, Applicant's claim that he received ineffective assistance of trial counsel based on his counsel's failure to object to his sentence for felony murder fails. See Lafler v. Cooper, 123 S.Ct. 1376, 1386 (2011) (recognizing that an ineffective assistance of counsel claim fails if the underlying premise on which it is based lacks merit). As a result, the procedural default of sub-claim (ii)(B) is not excused pursuant to Martinez and it will be dismissed.
In sub-claim (ii)(C), Mr. Hardin alleges that he received ineffective assistance of counsel because his trial counsel failed to object to the sentences for aggravated robbery since he was acquitted of aggravated robbery. Apparently, Mr. Hardin is referring to the fact that he was acquitted of the aggravated robbery charge as to Mr. Fisher and that he was only charged with one count of aggravated robbery for all three men in the indictment. Therefore, because he was only charged with one count of aggravated robbery and he was acquitted of robbing one of the men, Applicant is apparently arguing that he received ineffective assistance of trial counsel by his counsel failing to object to his sentence for aggravated robbery. However, this claim lacks merit because the underlying issue lacks merit. In Hardin I, the Colorado Court of Appeals held that there was either a constructive amendment to or a variance from the original count in the indictment and Mr. Hardin failed to demonstrate any prejudice resulting from the manner in which the aggravated robberies were charged. (ECF No. 13-2 at 6) (Hardin I). Thus, Mr. Hardin's trial counsel was not ineffective for failing to object to his sentence for aggravated robbery. Further, Mr. Hardin's postconviction counsel did not provide ineffective assistance by failing to raise an issue of ineffective assistance of trial counsel based on this sub-claim. Sub-claim (ii)(C) is not substantial under Martinez and Mr. Hardin's postconviction counsel did not provide ineffective assistance by failing to raise the claim, and therefore, it is barred as procedurally defaulted.
Respondents argue that the procedural default of sub-claims (ii)(D) and (ii)(E) should not be excused because the claims are not substantial. In sub-claim (ii)(D), Applicant argues he received ineffective assistance of trial counsel because his counsel failed to object to the convictions and sentences on both the felony murder and the underlying felony. (Doc. # 13-1 at 38). However, this issue was resolved on direct appeal. The appellate court agreed that Mr. Hardin could not be sentenced for both felony murder against Mr. Irving as well as the underlying felony of aggravated robbery against the same victim. Therefore, the appellate court remanded the case for the trial court to vacate the felony murder conviction as to Mr. Irving and enter a conviction and sentence for murder after deliberation instead. (Doc. # 13-2 at 3-5, 11) (Hardin I) ("The cause is remanded for the trial court to amend the judgment of conviction, sentence, and mittimus by vacating defendant's conviction for the felony murder of the victim the jury found was both robbed and murdered, entering a judgment of conviction for the murder after deliberation of that victim, and resentencing defendant accordingly"). Therefore, there was no need for postconviction counsel to raise this issue during the postconviction proceedings because it had already been resolved. As a result, Mr. Hardin's postconviction counsel was not ineffective for failing to raise the claim and sub-claim (ii)(D) is barred as procedurally defaulted.
In sub-claim (ii)(E), Applicant argues that he received ineffective assistance of trial counsel because his counsel failed to object to the trial court's "acquittal first" instruction. However, this underlying issue was also resolved on direct appeal. The Colorado Court of Appeals held that the jury instruction, which was requested by the Defendant, was approved by established precedent in People v. Padilla, 638 P.2d 15 (Colo. 1981). (Doc. # 13-2 at 9) (Hardin I). Thus, Mr. Hardin's trial counsel was not ineffective for failing to object to an instruction that was consistent with controlling state precedent. Further, Mr. Hardin's postconviction counsel did not provide ineffective assistance by failing to raise an issue of ineffective assistance of trial counsel based on this sub-claim. Sub-claim (ii)(E) is not substantial under Martinez and Mr. Hardin's postconviction counsel did not provide ineffective assistance by failing to raise the claim, and, therefore, the claim is barred as procedurally defaulted.
Based on the above findings, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Doc. # 6, is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
