PHILIP A. BRIMMER, District Judge.
This matter is before the Court on Petitioner Willie Braxton's pro se amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 5] ("the Petition"). Respondents have filed Respondents' Answer Brief [Docket No. 24] ("the Answer") and Petitioner has filed Applicant's Reply Brief [Docket No. 25] ("the Traverse"). After reviewing the record, including the Petition, the Answer, the Traverse, and the state court record, the Court concludes that the Petition should be denied and the case dismissed with prejudice.
Mr. Braxton is challenging the validity of his conviction in the District Court for the City and County of Denver, Colorado, case number 03CR2619. The charges against Mr. Braxton stemmed from an aggravated robbery on April 24, 2003, committed by a group of individuals that included Mr. Braxton. Mr. Braxton entered a guilty plea to one count of aggravated robbery in exchange for the dismissal of eighteen other charges and a stipulated sentence of twenty-four years in prison. Mr. Braxton's plea agreement also provided that he would testify at the trials of his codefendants. At sentencing, Mr. Braxton sought to withdraw his guilty plea because he had not testified against his codefendants and the plea was not voluntary. The trial court denied Mr. Braxton's motion to withdraw his guilty plea and imposed the stipulated sentence. On appeal, the Colorado Court of Appeals affirmed the trial court in part, reversed in part, and remanded with directions to resolve Mr. Braxton's request to withdraw his guilty plea on the grounds that the plea was involuntary. See People v. Braxton, No. 04CA0891 (Colo. App. Aug. 25, 2005) (unpublished) [Docket No. 10-11].
Following a hearing on remand in July 2006, the trial court determined Mr. Braxton had entered his guilty plea voluntarily and denied his motion to withdraw the guilty plea. That order was affirmed on appeal. See People v. Braxton, No. 06CA1748 (Colo. App. Jan. 24, 2008) (unpublished) [Docket No. 10-8]. On May 19, 2008, the Colorado Supreme Court denied Mr. Braxton's petition for writ of certiorari. See Docket No. 10-6.
On April 1, 2009, Mr. Braxton filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. The trial court denied the Rule 35(c) motion, and the trial court's order denying postconviction relief was affirmed on appeal. See People v. Braxton, No. 09CA1968 (Colo. App. Feb. 24, 2011) (unpublished) [Docket No. 10-2]. Mr. Braxton did not file a petition for writ of certiorari in the Colorado Supreme Court in the state court postconviction proceedings. However, on September 19, 2011, he filed in the Colorado Supreme Court a document titled "Discretion[ar]y Review" in which he asked the Colorado Supreme Court to review the trial court's order denying his Rule 35(c) motion as well as the mandate issued by the Colorado Court of Appeals in the postconviction Rule 35(c) proceedings. See Docket No. 13-1. On October 4, 2011, the Colorado Supreme Court denied the request for "Discretion[ar]y Review." See Docket No. 13-2.
Mr. Braxton asserts two claims for relief in the Petition. He first claims that the trial court erred in denying his motion to withdraw his guilty plea because the terms of the plea agreement were violated and he did not understand the trial court's advisement regarding his right to a jury trial. The Court construes the Petition and Mr. Braxton's first claim liberally as a due process claim challenging the validity of his guilty plea.
Mr. Braxton's second claim is an ineffective assistance of counsel claim. Construing the Petition liberally, the Court finds that Mr. Braxton is claiming plea counsel provided ineffective assistance when plea counsel: (a) created a conflict of interest by failing to file and pursue a motion to withdraw the guilty plea; (b) coerced Mr. Braxton into accepting an involuntary plea agreement by telling him the alternative was a life sentence; and (c) failed to advise him adequately regarding the terms of the plea agreement and the elements of aggravated robbery.
The Court previously entered an Order to Dismiss in Part [Docket No. 18] in which claims 2(b) and 2(c) were dismissed as unexhausted and procedurally barred. As a result, only claim 1 and claim 2(a) remain pending before the Court. Respondents concede that these claims are timely and exhausted.
The Court must construe the Petition and other papers filed by Mr. Braxton liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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). Mr. Braxton bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim 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. Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011). In particular, "determining 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." Id. at 784. Thus, "[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 784-85. Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 784. 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 [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its 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. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
The Court review 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 Mr. Braxton 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. Furthermore,
Richter, 131 S. Ct. at 786 (internal quotation marks omitted). In conducting this analysis, 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. In addition, "review 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, 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, 131 S. Ct. at 786 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Richter, 131 S.Ct. 786-87.
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 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 Applicant 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)).
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).
As discussed above, the Court construes the Petition and Mr. Braxton's first claim liberally as a due process claim challenging the validity of his guilty plea. Mr. Braxton contends that his plea violates due process because counsel coerced him into pleading guilty, he did not understand the essential elements of the offense to which he pleaded guilty, and he did not understand the consequences of his guilty plea because he believed he would be allowed to withdraw the guilty plea if he chose not to testify against his co-defendants. In his Traverse, Mr. Braxton provides the following explanation of his first claim and his testimony in state court in support of that claim:
[Docket No. 25 at 6-7 (citations to the record omitted).]
The United States Court of Appeals for the Tenth Circuit has outlined the clearly established federal law that applies in reviewing the validity of a state court guilty plea in the habeas context. In order to withstand constitutional scrutiny,
Gonzales v. Tafoya, 515 F.3d 1097, 1118 (10th Cir. 2008).
As noted above, the trial court held a hearing in July 2006 on Mr. Braxton's motion to withdraw his guilty plea following the remand from the Colorado Court of Appeals. The trial court did not specifically address the federal constitutional standards applicable to a guilty plea because Mr. Braxton sought to withdraw his guilty plea pursuant to Rule 32(d) of the Colorado Rules of Criminal Procedure. Under Rule 32(d), a defendant's motion to withdraw his guilty plea prior to sentencing may be granted when the defendant establishes "a fair and just reason" for the withdrawal. People v. Chippewa, 751 P.2d 607, 609 (Colo. 1988). After hearing testimony from Mr. Braxton and plea counsel as well as the arguments of counsel, the trial court determined that there was no fair and just reason to allow Mr. Braxton to withdraw his guilty plea and denied the motion in an oral ruling. The trial court made factual findings relevant to Mr. Braxton's first claim in this action and explained its ruling as follows:
[State Court R., Tr. 7/10/06 at 102-08.]
On appeal following the trial court's denial of his motion to withdraw his guilty plea, Mr. Braxton specifically argued that his plea was involuntary and he cited Boykin and the United States Constitution in his opening brief to the Colorado Court of Appeals. See Docket No. 10-10 at 14. The Colorado Court of Appeals affirmed the trial court's ruling because, although the trial court heard conflicting testimony from Mr. Braxton and plea counsel, the trial court's factual findings were supported by evidence presented at the hearing.
[Docket No. 10-8 at 3-4.]
The Court notes initially that the trial court's determination that Mr. Braxton failed to present a fair and just reason for withdrawing his guilty plea under Rule 32(d) of the Colorado Rules of Criminal Procedure is not before the Court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States"). Instead, the Court must decide whether the decision of the Colorado Court of Appeals rejecting Mr. Braxton's constitutional claim is contrary to or an unreasonable application of clearly established federal law. However, the trial court's factual findings in support of its ruling denying the Rule 32(d) motion are relevant to Mr. Braxton's claim challenging the validity of his guilty plea. As noted above, the Court must presume those factual findings are correct, and Mr. Braxton bears the burden of rebutting the presumption of correctness with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Mr. Braxton does not present any clear and convincing evidence that rebuts the presumption of correctness in the instant action.
The Court finds that Mr. Braxton's assertion that plea counsel coerced him to plead guilty is not supported by the record. First, the trial court determined as a factual matter that Mr. Braxton was advised and knew the decision to plead guilty was his decision. This factual finding is both presumptively correct and supported by the state court record. In particular, at the time he entered his guilty plea on January 9, 2004, Mr. Braxton specifically agreed that no one was forcing him to plead guilty. [State Court R., Tr. 1/9/04 at 29.] This admission is important because "[s]olemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). If Mr. Braxton was being coerced by counsel, as he now contends, he had an opportunity to advise the trial court regarding the alleged coercion when he entered his guilty plea. He should have advised the trial court of the alleged coercion at that time. He did not do so, however, and his vague and conclusory assertion now that he was coerced by plea counsel does not demonstrate his guilty plea was involuntary in violation of his constitutional rights.
The fact that plea counsel advised Mr. Braxton the alternative to a guilty plea was a life sentence, advice that the trial court agreed was an accurate assessment of the situation given the strength of the prosecution's case, also does not demonstrate unconstitutional coercion. Plea counsel's advise that it was in Mr. Braxton's best interests to plead guilty is not sufficient, by itself, to demonstrate that his guilty plea was not voluntary. See Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995).
Mr. Braxton's allegations regarding a learning disability and his depression, which he apparently contends made him more susceptible to coercion by counsel, do not alter the Court's conclusion. The Court is not persuaded that Mr. Braxton's vague and conclusory allegations about a learning disability and depression demonstrate his plea was unknowing or involuntary. For one thing, "deadlines, mental anguish, depression, and stress are inevitable hallmarks of pretrial plea discussions," id., and, by themselves, do not establish that a guilty plea violates due process. More importantly, Mr. Braxton fails to overcome the presumption of correctness that attaches to the trial court's determination that his vague testimony regarding a learning disability was not credible. With respect to his depression and the fact that he was not taking Prozac at the time he entered his plea, the record reveals that Mr. Braxton advised the trial court when he entered his guilty plea on January 9, 2004 that his mental condition had improved since he stopped taking Prozac and he agreed that he was not suffering from any mental or emotional problems that might interfere with his judgment or ability to understand the proceedings. [State Court R., Tr. 1/9/04 at 5.] For all of these reasons, the Court finds that Mr. Braxton's coercion argument lacks merit.
Mr. Braxton next argues that his plea violates due process because he did not understand the essential elements of the offense to which he pled guilty. The Court finds that this argument is not supported by the record and the trial court's factual findings. The record demonstrates that the court advised Mr. Braxton regarding the essential elements of the offense to which he pled guilty, including the element regarding the presence of an armed confederate about which he specifically now contends he was confused, and Mr. Braxton acknowledged in open court that he understood the advisement. [State Court R., Tr. 1/9/04 at 20-25.] The record also reflects that, with respect to the presence of an armed confederate element, Mr. Braxton agreed as part of the factual basis for his plea that he was part of a group of individuals that drew weapons and committed an aggravated robbery on April 24, 2003, as charged. [State Court R., Tr. 1/9/04 at 27-28.] Because the record demonstrates the court specifically advised Mr. Braxton regarding the presence of an armed confederate element, his argument in the Traverse that the trial court misapplied federal law when it failed to understand his argument with respect to that element does not demonstrate his guilty plea was unknowing or involuntary.
Finally, Mr. Braxton argues that his guilty plea violates due process because he did not understand the consequences of his guilty plea and he believed he would be allowed to withdraw the guilty plea if he chose not to testify against his co-defendants. It is true that Mr. Braxton's agreement to provide complete and truthful testimony at the trials of his codefendants was a condition precedent to his guilty plea. However, the fact that Mr. Braxton later decided not to testify at the trials of his codefendants does not make his guilty plea involuntary at the time it was entered. See Bachner v. United States, 517 F.2d 589, 598 (7th Cir. 1975) (Stevens, J., concurring) ("On the issue of voluntariness, it is, of course, inappropriate to take into account subsequent events, such as the actual sentence imposed; necessarily, the plea is either voluntary or involuntary at the time the defendant makes his choice."). To the extent Mr. Braxton is claiming his plea was unknowing based on his belief that he would be allowed to withdraw the guilty plea if he chose not to testify against his co-defendants, he fails to demonstrate the existence of any clearly established federal law to support such a claim. As noted above, "clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice." House, 527 F.3d at 1016. With respect to the argument that his guilty plea was unknowing because he believed he would be able to withdraw the plea if he chose not to testify against his codefendants, Mr. Braxton fails to identify any Supreme Court holding finding a guilty plea unknowing under similar factual circumstances.
Finally, the Court rejects Mr. Braxton's argument in his Traverse that the state court's decision regarding the voluntariness of his guilty plea was contrary to clearly established federal law because the trial court focused on the determination of guilt, i.e., the strength of the prosecution's case, and not the issue of whether the guilty plea was knowing and voluntary. See Docket No. 25 at 10. As discussed above, the strength of the prosecution's case and the factual findings of the state courts in that regard are relevant to the issue of coercion.
The Court will not address Mr. Braxton's argument in his Traverse that using added counts as leverage for a guilty plea is an illegal inducement and unconstitutional coercion, see Docket No. 25 at 16-18, because he did not raise this argument in the Petition and the argument was not exhausted in the state court proceedings.
For all of these reasons, the Court finds that Mr. Braxton is not entitled to relief on his first claim challenging the validity of his guilty plea.
Mr. Braxton alleges in claim 2(a) that plea counsel provided ineffective assistance when plea counsel created a conflict of interest by failing to file and pursue a motion to withdraw the guilty plea. Mr. Braxton explains this claim as follows in his Traverse: "Mr. Braxton requested counsel to withdraw his plea. Counsel petitioned the court through an oral motion versus a formal motion. This was prejudicial against Mr. Braxton, because defense counsel supported the conviction and joined [the] prosecution in obtaining that conviction." [Docket No. 25 at 18.]
It was clearly established when Mr. Braxton was convicted that a defendant has a Sixth Amendment right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed questions of law and fact. See id. at 698.
To establish that counsel was ineffective, Mr. Braxton 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 id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. There is "a strong presumption" that counsel's performance falls within the range of "reasonable professional assistance." Id. It is Mr. Braxton's burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances. See id. "For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Furthermore, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
Under the prejudice prong, Mr. Braxton 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.; see also Richter, 131 S. Ct. at 792 (stating that "[t]he likelihood of a different result must be substantial, not just conceivable."). To show prejudice in the context of a guilty plea, Mr. Braxton must demonstrate a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). In determining whether Mr. Braxton has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Mr. Braxton. See Boyd, 179 F.3d at 914.
Conclusory allegations that counsel was ineffective are not sufficient to warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir. 2001). If Mr. Braxton fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697.
Finally, if Mr. Braxton can demonstrate that plea counsel "actively represented conflicting interests," he is not required to show prejudice under Strickland. Mickens v. Taylor, 535 U.S. 162, 166 (2002). "An `actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Id. at 172 n.5.
The Colorado Court of Appeals determined that plea counsel did not create a conflict of interest by failing to file and pursue a motion to withdraw the guilty plea and, as a result, applied the general Strickland standards in addressing Mr. Braxton's ineffective assistance of counsel claim. According to the Colorado Court of Appeals, Mr. Braxton's allegation that plea counsel created a conflict of interest by failing to file and pursue a motion to withdraw his plea
[Docket No. 10-2 at 8.]
The determination of the Colorado Court of Appeals that plea counsel did not create a conflict of interest by failing to file and pursue a motion to withdraw Mr. Braxton's guilty plea is neither contrary to nor an unreasonable application of clearly established federal law. The Court notes initially that there is no clearly established federal law that would eliminate the requirement of demonstrating prejudice under Strickland on the facts of this case. See Mickens, 535 U.S. at 176 (noting that it is an open question whether the exception to Strickland for cases of actual conflicts of interest extends to conflicts of interest that do not involve multiple or concurrent representation by counsel). Thus, the ineffective assistance of counsel standards set forth in Strickland apply to claim 2(a) and Mr. Braxton is not entitled to relief unless he shows both deficient performance and prejudice.
The Colorado Court of Appeals determined Mr. Braxton failed to demonstrate deficient performance because plea counsel testified that he believed Mr. Braxton had changed his mind about seeking to withdraw his guilty plea. Although Mr. Braxton obviously disagrees with plea counsel's testimony, the trial court made a factual determination that plea counsel's testimony was credible and that Mr. Braxton's testimony was not credible. Because Mr. Braxton fails to present clear and convincing evidence to the contrary, the Court presumes this factual determination is correct. See 28 U.S.C. § 2254(e)(1). In light of this factual determination that plea counsel believed Mr. Braxton had changed his mind about withdrawing his guilty plea, the Court cannot conclude that plea counsel's failure to file a written motion to withdraw Mr. Braxton's guilty plea prior to sentencing constitutes deficient performance.
In any event, even if plea counsel's performance somehow could be deemed deficient, the Court also concludes that Mr. Braxton cannot demonstrate any prejudice from plea counsel's failure to file a written motion to withdraw Mr. Braxton's guilty plea. The Court reaches this conclusion based on the fact that new counsel actually filed and argued a written motion to withdraw Mr. Braxton's guilty plea on remand from the Colorado Court of Appeals in 2006. Although that motion was filed after sentencing, the trial court construed the motion as asserted pursuant to Rule 32(d) of the Colorado Rules of Criminal Procedure and applied the applicable standards under Rule 32(d). Mr. Braxton does not argue, and there is no indication in the state court record, that the motion to withdraw Mr. Braxton's guilty plea had any better chance of success if the motion had been filed prior to sentencing as he allegedly requested. Therefore, because the motion that plea counsel allegedly failed to file subsequently was filed and argued by new counsel, Mr. Braxton cannot demonstrate any prejudice resulting from plea counsel's failure to file that motion.
For all of these reasons, the Court finds that Mr. Braxton is not entitled to relief on claim 2(a). Accordingly, it is
ORDERED that the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 5] is denied and this case 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).
