CHRISTINE M. ARGUELLO, District Judge.
This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1) ("the Application") filed by Applicant Gabriel Esparza. Respondents have filed an Answer to Petition for Writ of Habeas Corpus (Doc. # 21) ("the Answer") and Mr. Esparza has filed a Reply to Respondents' Answer (Doc. # 25) ("the Reply"). After reviewing the record, including the Application, the Answer, the Reply, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.
Mr. Esparza is challenging the validity of his conviction and sentence in the Arapahoe County District Court case number 04CR1256. In direct appeal proceedings, the Colorado Court of Appeals summarized the factual background of Mr. Esparza's conviction as follows:
People v. Esparza, No. 05CA1952, slip op. at 1-2 (Colo. App. Apr. 30, 2009) (Doc. # 8-7 at 3-4). The judgment of conviction was affirmed on direct appeal. Id. On July 20, 2009, the Colorado Supreme Court denied Mr. Esparza's petition for writ of certiorari. (See Doc. # 1-2).
On December 7, 2009, Mr. Esparza filed in the state district court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See Doc. # 8-1 at 4). Mr. Esparza also requested appointment of postconviction counsel, but the state district court did not appoint counsel and summarily denied his Rule 35(c) motion. (See Doc. # 1-3). On January 19, 2012, the Colorado Court of Appeals affirmed the trial court's order denying the Rule 35(c) motion. (See Doc. # 1-4 at 2). On September 23, 2013, the Colorado Supreme Court denied Mr. Esparza's petition for writ of certiorari. (See Doc. # 1-5).
On April 28, 2014, Mr. Esparza filed the § 2254 Application asserting seven claims for relief. He asserts in Claim One that his Fourth Amendment rights were violated when he was arrested without a warrant and searched. He contends in Claim Two that the trial court violated his Fourth Amendment rights by denying his motion to suppress evidence from invalid searches. Mr. Esparza asserts in Claim Three that he was tried before a biased judge who should have recused himself in violation of his due process rights under the Fifth and Fourteenth Amendments. He asserts in Claim Four that the trial court violated his due process rights under the Sixth and Fourteenth Amendments by making prejudicial evidentiary rulings. He alleges in Claim Five that his due process rights were violated because the prosecution misled defense counsel and the trial court refused to hold a suppression hearing. Mr. Esparza asserts in Claim Six that his due process rights were violated by prosecutorial misconduct. Mr. Esparza finally contends in Claim Seven that he received ineffective assistance of trial counsel because (a) counsel did not conduct a sufficient investigation into his casino alibi defense; (b) counsel failed to secure a Gun Shot Residue expert to challenge the State's interpretation of the CBI test results; (c) counsel did not represent him during the motions hearing concerning a forced handwriting exemplar; and (d) counsel infringed on his right to plead not guilty and to testify on his own behalf by admitting his guilt to the jury in opening statements. The Court previously entered an Order to Dismiss in Part dismissing Claim 7(c) as unexhausted and procedurally barred. (See Doc. # 19).
The Court must construe the Application and other papers filed by Mr. Esparza liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); 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.
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). Mr. Esparza 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 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. 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 the 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)).
Finally, the Court's analysis is not complete "[e]ven if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law." Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). "Unless the error is a structural defect in the trial that defies harmless-error analysis, [the Court] must apply the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993). . . ." Id.; see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless error analysis under Brecht anytime it finds constitutional error in a state court proceeding regardless of whether the state court found error or conducted harmless error review). Under Brecht, a constitutional error does not warrant habeas relief unless the Court concludes it "had substantial and injurious effect" on the jury's verdict. 507 U.S. at 637. "A `substantial and injurious effect' exists when the court finds itself in `grave doubt' about the effect of the error on the jury's verdict." Bland, 459 F.3d at 1009 (citing O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). "Grave doubt" exists when "the matter is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of the error." O'Neal, 513 U.S. at 435. The Court makes this harmless error determination based upon a review of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
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. Esparza alleges he was arrested without a warrant and searched in violation of the Fourth Amendment. (Doc. # 1 at 5-7). Specifically, he asserts that the trial court erred in failing to suppress evidence obtained by the search because the trial court incorrectly found that Mr. Esparza was validly arrested based on the restraining order violation. (Id. at 6). Mr. Esparza also contends that the trial court erred in finding, in the alternative, that even if the arrest was not valid, a good faith exception applied and thus exclusion of the evidence was not required, as explained in Herring v. United States, 129 S.Ct. 695 (2009). (Id. at 7).
The Fourth Amendment protects against unreasonable search and seizure and is generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S. 213, 254 (1983). In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court limited federal habeas review of alleged Fourth Amendment violations. In Stone, the Supreme Court held that
Id. at 481-82.
The United States Court of Appeals for the Tenth Circuit has noted that "[a]lthough Stone announced a verbal standard, it failed to clothe the words `opportunity for full and fair litigation' with any precise meaning." Gamble v. State of Okla., 583 F.2d 1161, 1164 (10th Cir. 1978). Therefore, the Tenth Circuit has determined that the meaning of the phrase, "opportunity for full and fair litigation," "includes, but is not limited to, the procedural opportunity to raise or otherwise present a Fourth Amendment claim." Id. at 1165. It also includes the full and fair evidentiary hearing contemplated by Townsend v. Sain, 372 U.S. 293 (1963). Id. Furthermore, it contemplates recognition and at least a colorable application of the correct Fourth Amendment constitutional standards. Id. "Thus, a federal court is not precluded from considering Fourth Amendment claims in habeas corpus proceedings where the state court wilfully refuses to apply the correct and controlling constitutional standards." Id.; see also Sanders v. Oliver, 611 F.2d 804, 808 (10th Cir. 1979).
In his state court proceedings, Mr. Esparza's counsel filed a motion to suppress evidence obtained from the search subsequent to his arrest. (Doc. # 8-1 at 16). After hearing the testimony of police officers regarding Mr. Esparza's arrest and the arguments of counsel, the trial court denied the motion to suppress, finding that the arresting officers had confirmed an active warrant through dispatch and that the seizure of Mr. Esparza was valid based on the restraining order violation. (See State Court R., 2/24/05 Hrg. Trans. at 393-484; 3/16/05 Hrg. Trans. at 495-574).
On appeal, the Colorado Court of Appeals addressed the merits of Mr. Esparza's Fourth Amendment claim as follows:
(Doc. # 8-7 at 5-11).
Mr. Esparza challenges the state courts' factual findings that there was a valid warrant at the time of his arrest and that even if there was no valid warrant for his arrest, that there was a good faith mistake as to the warrant's existence. Specifically, Mr. Esparza asserts that the factual finding that "the CCIC database correctly showed that defendant was wanted for a violation of the restraining order, supplying probable cause for defendant's arrest" was contrary to the testimony and evidence provided regarding the CCIC printout during the suppression hearing. (See Doc. # 25 at 3-4). Mr. Esparza also asserts that the state appellate court's alternative finding that there was a good faith mistake as to the existence of a warrant also was contrary to the testimony and evidence presented during the hearing. (Doc. # 1 at 6-7; Doc. # 25 at 6). He contends that the arresting officers' testimony established that they never verified the purported warrant in the CCIC printout, which demonstrates an actual showing of recklessness. (Doc. # 1 at 7).
Mr. Esparza bears the burden to refute the state courts' factual findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The factual findings, which are presumed correct in a federal habeas proceeding, are supported by the state court record of the suppression hearing. (See State Court R., 2/24/05 Hrg. Trans. at 393-484; 3/16/05 Hrg. Trans. at 495-574). The Court finds that Mr. Esparza has not pointed to anything in the hearing transcripts that clearly contradicts the state courts' factual findings.
The Court further finds that the state courts considered applicable law in deciding that the Fourth Amendment was not implicated by Mr. Esparza's search and seizure. Specifically, the state courts relied on federal and state case law applying federal constitutional standards and Fourth Amendment precedent in resolving Mr. Esparza's claim. (See State Court R., 3/16/05 Hrg. Trans. at 573 (citing People v. Bischofberger, 724 P.2d 660, 662-65 (Colo. 1986) (relying on federal Fourth Amendment standards relating to a search incident to a lawful custodial arrest)). (See also Doc. # 8-7 at 8-9) (citing People v. Blehm, 983 P.2d 779, 795-96 (Colo. 1999) (relying on federal Fourth Amendment principles concerning the "good faith" exception to the exclusionary rule) and (citing Herring v. United States, 555 U.S. 135 (2009) (extending the good faith exception to the exclusionary rule to a situation where a law enforcement agency was responsible for an erroneous outstanding warrant remaining in the database)).
Accordingly, the Court finds that the state court proceedings sufficed to provide Mr. Esparza with an opportunity for full and fair litigation of his claim. See Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999) (holding that petitioner was not entitled to habeas review of Fourth Amendment claim where petitioner's trial counsel informed the trial court of the factual basis for a Fourth Amendment claim, appellate counsel presented the issue to the state appellate court on direct appeal, and the state courts' "thoughtfully considered the facts underlying petitioner's Fourth Amendment claim" but rejected it on the merits by applying appropriate Supreme Court precedent). Mr. Esparza's mere disagreement with the result of his suppression hearing does not demonstrate that the state courts failed to recognize, or wilfully ignored, controlling legal standards. See Gamble, 583 F.2d at 1165. Thus, the Court finds that Mr. Esparza is not entitled to federal habeas relief for his Fourth Amendment claim. Accordingly, Claim One will be dismissed.
Mr. Esparza alleges in Claim Two that the state trial court violated his Fourth Amendment rights by denying his motions to suppress evidence seized from invalid searches of two residences. (Doc. # 1 at 8-14). Mr. Esparza contends that the trial court wrongfully found that probable cause existed because the trial court identified an "incomplete, and therefore incorrect, legal standard" and considered irrelevant evidence during the suppression hearing. (Id. at 9-12). He also contends that the state courts misapplied federal law in finding that the search warrants were particular enough to prevent an exploratory search. (Id. at 12-14; Doc. # 25 at 6-9).
As explained above, Mr. Esparza may not obtain federal habeas relief if the state court proceedings provided him with an opportunity for full and fair litigation of his Fourth Amendment claim. See Stone, 428 U.S. at 494. Respondents assert that Mr. Esparza's Fourth Amendment claim has been litigated in the sate courts and, therefore he had a full and fair opportunity to litigate Claim Two. (Doc. # 21 at 13).
As substantiated by the record, Mr. Esparza filed separate motions to suppress any evidence seized at his residence and at his sister's residence because the affidavits failed (1) to provide a sufficient nexus between Tina Esparza's murder, the places to be searched, and the things to be seized; and (2) to satisfy the particularity requirement of the Fourth Amendment. (See Doc. # 8-1 at 16-17; Doc. # 1 at 9, 12-14). After full briefing and an evidentiary hearing on the motions, the trial court denied both motions to suppress, finding that there was probable cause for the searches because the "supporting affidavits do establish a fair probability that contraband or evidence of the subject crime or crimes would be found there." (State Court R., 4/27/05 Hrg. Trans. at 890-935). The trial court further found even assuming that the affidavits were insufficient, that the police officers were operating under a good faith exception to reasonably believe that they were utilizing valid search warrants to seize the contents of the safe. (Id. at 936-38).
The Colorado Court of Appeals concluded "that the detective's affidavit provided a substantial basis to establish probable cause that the searches would yield material evidence for use in a criminal prosecution." (Doc. # 8-7 at 13). The Court of Appeals further found that the affidavit
(Id.).
The Court of Appeals also rejected Mr. Esparza's argument that the warrant failed to describe the items to be seized with sufficient particularity. The state appellate court specifically found that the "addendum to the warrant listed twenty-two items that could be relevant in investigating the crime, and there is no evidence that the police intended to, or did in fact, conduct a `general, exploratory rummaging' in defendant's belongings." (Doc. # 8-7 at 14). Lastly, the Court of Appeals rejected Mr. Esparza's contention that the police officers did not have the authority to open the safe seized from his sister's home. (Id. at 14-15).
The Court first finds that the state court proceedings sufficed to provide Mr. Esparza with an opportunity for full and fair litigation of this Fourth Amendment claim. Gamble, 583 F.2d at 1165. Further, Mr. Esparza has pointed to no authority mandating reversal but ignored by the state courts, and this Court has found none. See id. Finally, the Colorado state courts relied on state and federal case law that was solidly based in Fourth Amendment precedent set forth by the United States Supreme Court. (See State Court R., 4/27/05 Hrg. Trans. at 933-938). (See also Doc. # 8-7 at 11-15 (citing Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (setting forth Fourth Amendment requirements for search and seizure); People v. Roccaforte, 919 P.2d 799, 803 (Colo. 1996) (explaining the particularity requirement of the Fourth Amendment); People in Interest of D.F.L., 931 P.2d 448, 452 (Colo. 1997) (noting that "federal courts have consistently applied the general proposition that a container found within a dwelling or residence that is subject to a validly issued warrant may be searched by law enforcement officers if it `is large enough to contain the contraband or evidence that [the officers] are looking for.'")). Under this precedent, the Colorado Court of Appeals proceeded to determine that, based on the entire record before it, there was no constitutional concerns present with regard to the searches of the residences.
The Court finds that Mr. Esparza has failed to present any well-pled facts from which it can be inferred that the state courts failed to recognize or wilfully refused to apply the correct and controlling constitutional standards in this regard, and no such evidence is apparent from the record. See Gamble, 583 F.2d at 1165. Mr. Esparza merely disagrees with the result, and would like the Court to reconsider these issues de novo. However, that is not the Court's function nor an appropriate review to be undertaken in a federal habeas proceeding. Accordingly, Mr. Esparza is not entitled to federal habeas review of his Fourth Amendment claim, and Claim Two will be dismissed.
Mr. Esparza contends that his Fifth and Fourteenth Amendment due process rights were violated because he was tried before a biased judge who should have recused himself. (Doc. # 1 at 14-16). Mr. Esparza alleges the "trial court was clearly wrong in finding that [the motion to disqualify] contained `only opinions, conjecture, and conclusory allegations'" and that the "Court of Appeals erroneously found that `prejudice against the lawyer for the defendant does not require recusal.'" (Id. at 15-16).
To demonstrate a violation of due process because of judicial bias, a claimant must show either actual bias or an appearance of bias. Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010). "The standard is purely objective, and [t]he inquiry is limited to outward manifestations and reasonable inferences drawn therefrom." United States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008) (alteration in original) (quoting United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005) (internal quotation marks omitted). In addition, "[a]lthough a judge's remarks during the course of a trial may be `critical,' `disapproving,' or `hostile' to a party, usually they will not support a partiality charge." Nickl, 427 F.3d at 1298 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. "Thus, `adverse rulings cannot in themselves form the appropriate grounds for disqualification.'" Nickl, 427 F.3d at 1298 (quoting Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Finally, to show actual bias, the applicant must present "compelling" evidence. See Fero v. Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994) (in upholding dismissal of a habeas claim involving judicial bias, the court stated that "[d]isqualification of a judge for actual bias or prejudice is a serious matter and should only be required when the evidence is compelling") (citation omitted).
On direct appeal, Mr. Esparza identified three instances of judicial bias: (1) the trial judge held an important hearing without Mr. Esparza or his counsel in which the merits of defense objections to forced handwriting samples were discussed with the prosecution; (2) the trial judge did not appropriately discipline the prosecution for ex parte communications; and (3) the trial judge repeatedly ruled in favor of the prosecution and rescinded decisions favorable to the defense. (See Doc. # 8-2 at 22-23; Doc. # 8-7 at 17-20).
After setting forth the legal standard for disqualification, the Colorado Court of Appeals rejected Mr. Esparza's claim and found that even assuming, without deciding, that Mr. Esparza's attorneys' two affidavits attached to the motion to disqualify were sufficient to "verify" the motion under state statutes, the motion and affidavits failed to state facts showing the existence of grounds for disqualification. (See Doc. # 8-7 at 16). The state appellate court further rejected Mr. Esparza's allegation that the trial judge held an "ex parte" motions hearing regarding Mr. Esparza's handwriting sample because the record demonstrated that Mr. Esparza had notice of the hearing but failed to attend. (Id. at 17). The state appellate court further found that the trial judge's ruling on the handwriting exemplar did not demonstrate hostility, ill will, or an absence of impartiality. (Id.). The Colorado Court of Appeals also rejected Mr. Esparza's allegation that the trial judge was biased because he did not appropriately discipline the prosecution for ex parte communication with defense witnesses. The state appellate court found that (i) the judge did reprimand the prosecutor for contacting the witnesses to tell them that they were not needed at the hearing; and (ii) the prosecutor's contact did not prejudice Mr. Esparza. (Id. at 18-19). Finally, the Colorado Court of Appeals rejected Mr. Esparza's allegations that the trial judge displayed a "skeptical attitude" toward defense counsel while behaving favorable to the prosecution. The state appellate court first found that this argument was entirely conclusory. (Id. at 19). However, even assuming the allegations were true, the state appellate court further determined that recusal was not required because Mr. Esparza failed to make a showing of hostility, ill will, or absence of impartiality. (Id. at 20).
Mr. Esparza contends that he was denied his right to an impartial tribunal based on the trial judge's rulings regarding the prosecution's ex parte communications and the alleged introduction of false or erroneous testimony. (Doc. # 1 at. 15-16; Doc. # 15 at 11-12). These allegations are insufficient to show actual bias or an appearance of bias. See Liteky, 510 U.S. at 555 ("[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion"). None of the trial judge's rulings suggested a prejudgment of guilt or exhibited antagonism toward Mr. Esparza himself. See Liteky, 510 U.S. at 555-556 ("[A] judge's ordinary efforts at court-room administration — even a stern and short-tempered judge's ordinary efforts at courtroom administration — remain immune [from charges of bias] . . . [and the defendant failed] to point to any conduct that arguably reveals an opinion of favoritism or antagonism as to make fair judgment impossible."). Further, the Colorado Court of Appeals' decision did not run afoul of any controlling Supreme Court precedent. Thus, Mr. Esparza has failed to demonstrate that he was deprived of due process and a fair trial by judicial bias. Therefore, he is not entitled to habeas relief on this claim, and Claim Three will be dismissed.
Mr. Esparza alleges that the state trial court violated his due process rights under the Sixth and Fourteenth Amendments by making prejudicial evidentiary rulings. (Doc. # 1 at 16-19). Specifically, he contends that the trial court erred in the manner in which it admitted evidence regarding the Jefferson County sexual assault charges and allegations against Mr. Esparza. (Id.).
Generally, state law questions about the admissibility of evidence are not reviewed in federal habeas proceedings. Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001). A federal court "may not interfere with state evidentiary rulings unless the rulings in question rendered `the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.'" Id. (quoting Tucker v. Markowski, 883 F.2d 877, 881 (10th Cir. 1989); see also Payne v. Tennessee, 501 U.S. 808, 825 (1991) (evidence violates due process only when it is so unduly prejudicial that it renders a trial fundamentally unfair). The United States Supreme Court has "defined the category of infractions that violate `fundamental fairness' very narrowly." Dowling v. United States, 493 U.S. 342, 352 (1990). Furthermore, "because a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint." Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks and citation omitted). The Court's "[i]nquiry into fundamental fairness requires examination of the entire proceedings." Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (per curiam). Moreover, a state court's admission of evidence of prior crimes, wrongs or acts will only be disturbed if the "probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that the admission denies [applicant] due process of law." Hopkinson v. Shillinger, 866 F.2d 1185, 1197 (10th Cir. 1989), overruled on other grounds by Sawyer v. Smith, 497 U.S. 227 (1990).
Before Mr. Esparza's trial, the prosecution filed a notice of intent to introduce evidence of Mr. Esparza's alleged sexual assault of Tina Esparza's daughter. (Doc. # 8-7 at 20). The prosecution maintained that the Jefferson County sexual assault charges and allegations were probative of Mr. Esparza's motive and intent for the murder of Tina Esparza, and should be admitted as res gestae evidence or as prior bad acts under Colo. R. Evid. 404(b). (See State Court R., 4/15/05 Hrg. Trans. at 739-750). After hearing the arguments of counsel, the trial court found that the evidence was "integral and highly probative for the fact finder to understand the situation involving [Mr. Esparza and his estranged wife]" and "relevant on the issues of the defendant's intent, motive, preparation, plan, knowledge, and also, issues relating to identity." (Id. at. 780-83). Prior to voir dire, the trial court reiterated its ruling that the Jefferson County case charges and basic allegations were admissible. (See State Court. R., 7/11/05 Hrg. Trans. at 1139-42). During opening statements and throughout trial, Mr. Esparza's counsel objected to the prosecution's presentation of evidence regarding the Jefferson County case. (See e.g., id. at 1295; 7/13/05 Hrg. Trans. at 1560-71, 1688-90; 7/14/05 Hrg. Trans. at 1795-1803, 2029).
On direct appeal, Mr. Esparza argued that the manner in which the evidence was admitted at trial constituted prejudice entitling him to a mistrial. (Doc. # 8-2 at 31-43; Doc. # 8-7 at 23-29). Specifically, he argued that the trial court should not have permitted testimony about the content of the videotapes found in the family home or other testimony concerning specific facts of the Jefferson County case; that the trial court ignored prosecutorial misconduct; that the trial court wrongfully denied him a hearing on the issue; and that the admission of the evidence entitled him to a mistrial. (Id.).
The Colorado Court of Appeals disagreed that the introduction of the allegations of the sexual assault case denied Mr. Esparza due process. First, the Court of Appeals found that the evidence was relevant to motive and intent because "Tina Esparza had caused sexual assault charges to be filed against him in Jefferson County arising from the secret videotaping that occurred in the family home; as a result of the charges, a protective order was obtained preventing defendant from contacting his wife or her daughters; the violation of the restraining order had been reported to the authorities and was coming up for a hearing; the sexual assault charges were being prosecuted; and Tina Esparza was a potential material witness." (Doc. # 8-7 at 22). The Court of Appeals further found that the sexual assault charges and allegations were "presented as part of a sequence of events leading up to the murder." (Id. at 22-23). Finally, the Court of Appeals found that the underlying sexual assault case was not unfairly prejudicial. (Id.).
The Colorado Court of Appeals further determined that Mr. Esparza was not entitled to a mistrial because the manner of presentation of the allegations of the sexual assault charge was not unfairly prejudicial. Specifically, the state appellate court explained in detail as follows:
(Doc. # 8-7 at 24-27).
The Court finds that Mr. Esparza has not demonstrated that the trial court's decision to allow evidence of the alleged sexual assault charges and allegations was so overwhelmingly prejudicial that it resulted in a fundamentally unfair trial. First, the evidence was relevant to explaining the facts leading up to Tina Esparza's murder and establishing Mr. Esparza's motive and intent. See Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002) (admitting evidence of petitioner's other crimes and bad acts was relevant to explain the "chain of events" leading up to the murder and the petitioner's intent and motive). Moreover, the trial court provided a limiting instruction that the testimony only "may be used as evidence for the purpose of showing intent, motive, preparation, plan, knowledge, and identity, and you should consider it as evidence for no other purpose." (See e.g., State Trial R., 7/14/05 Hrg. Trans. at 1816). Thus, it is clear from the state court record that the trial court instructed the jury to consider the evidence only for the specified, limited purpose of showing motive or intent and for no other purpose.
Further, the state trial court permitted only general references and excluded specific, graphic descriptions, which refutes Mr. Esparza's contention that his trial was rendered fundamentally unfair by the admission of evidence of the sexual assault case. See e.g., Willingham v. Mullin, 296 F.3d 917, 928-29 (10th Cir. 2002) (according deference to state court's admission of objectionable photograph as relevant, despite habeas petitioner's argument that photographs were unduly prejudicial and concluding that petitioner failed to demonstrate a due process violation). Accordingly, the Court finds that the state appellate court's decision regarding the admissibility of this evidence was not contrary to, or involved an unreasonable application of, clearly established Federal law, nor is it an unreasonable determination of the facts. Therefore, Mr. Esparza is not entitled to federal habeas relief. Claim Four lacks merit and will be dismissed.
In Claim Five, Mr. Esparza contends that his due process rights were violated when the prosecution misled defense counsel and the trial court that it would not introduce specific facts of the Jefferson County sexual assault case. (Doc. # 1 at 19). He also asserts that the trial court erred in failing to hold a hearing concerning Mr. Esparza's motion to suppress evidence seized in the Jefferson County case. (Doc. # 1 at 19-20).
In general, habeas relief is available for prosecutorial misconduct only if the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). But if the "challenged statements effectively deprived the defendant of a specific constitutional right," relief is available unless the violation can be "deemed harmless beyond a reasonable doubt." Gipson v. Jordan, 376 F.3d 1193, 1197 (10th Cir. 2004).
The Colorado Court of Appeals held that there was no prosecutorial misconduct that warranted a mistrial. (Doc. # 8-7 at 27-28). The state appellate court also determined that the state trial court did not err in failing to hold a hearing on Mr. Esparza's pretrial motion to suppress evidence because:
(Doc. # 8-7 at 28-29).
To the extent Claim Five could be read as a Fourth Amendment claim, the claim is precluded by Stone v. Powell, 428 U.S. 465 (1976). The state court record demonstrates that Mr. Esparza had a full and fair opportunity to litigate this claim. Mr. Esparza's attorney filed a motion to suppress any evidence relating to the search in the Jefferson County case. (Doc. # 1 at 19; State Court R., 4/15/05 Hrg. Trans. at 782). The trial court did not rule on the motion prior to trial, but Mr. Esparza's attorney renewed the motion to suppress during trial. (State Court R., 7/13/05 Hrg. Trans. at 1560, 1564-71, 1688-90; 7/14/05 Hrg. Trans. at 1862-74; 7/15/05 Hrg. Trans. at 2039-41.) The trial court listened to counsel's arguments, disagreed with defense counsel's characterization, and denied suppression and a mistrial. (Id., 7/13/05 Hrg. Trans. at 1571, 1688-90; 7/14/05 Hrg. Trans. at 1862-74; 7/15/05 Hrg. Trans. at 2039-56).
Mr. Esparza also raised the issue on direct appeal and the Colorado Court of Appeals rejected the claim. The state appellate court found that Tina Esparza's consent to search was given voluntarily and that officers obtained a valid consent to search, citing to United States v. Matlock, 415 U.S. 164 (1974). (See Doc. # 8-7 at 28-29). Based on the record, the Court concludes that Mr. Esparza had a full and fair opportunity to litigate his Fourth Amendment claim in the state courts. As a result, the Court is precluded from considering the claim based on Stone.
To the extent, Mr. Esparza's claim is not precluded by Stone, the Court finds that he is not entitled to habeas relief. In the Application, Mr. Esparza argues that the state courts' reliance on Matlock was improper because it is distinguishable from his case. Mr. Esparza also claims that the warrantless search was invalid under Georgia v. Randolph, 547 U.S. 103 (2006).
The Court finds that Mr. Esparza is not entitled to relief on his due process claim because he fails to identify any clearly established federal law providing that the search was not facially proper. Respondents are correct that Georgia v. Randolph does not apply to Mr. Esparza's case. In Georgia v. Randolph, the United States Supreme Court considered "whether one occupant may give law enforcement effective consent to search shared premises, as against a cotenant who is present and states a refusal to permit the search." 547 U.S. at 108 (emphasis added). The Supreme Court specifically declined to "undercut" the holding in Matlock by "drawing a fine line," and stated the very narrow terms of its holding as follows:
Id. at 122 (emphasis added).
In the instant case, Mr. Esparza does not allege that he was invited to take part in the threshold request for consent to search. Nor does Mr. Esparza allege that he objected to the search. He merely alleges that he "was also present" and that "no evidence was introduced to show that he gave voluntary consent." (Doc. # 1 at 20). A failure to give consent does not equate to an express refusal to consent and the state court record does not reflect that Mr. Esparza was "at the door and object[ed.]" Instead, the state court record demonstrates that the investigating officer responded to Tina Esparza's request to investigate a "family matter;" that he contacted her and her daughter outside of her residence; that she invited him into the house; that she took the officer upstairs to search the bedrooms, bathroom, and attic; that the officer passed Mr. Esparza on the stairs on his way to the second floor and had a conversation with him; and that after the search was completed, Mr. Esparza gave an interview with one of the officers. (See State Court R., 7/13/05 Hrg. Trans. at 1686-1704; see also Doc. # 8-13 at 17-20). Thus, Mr. Esparza's reliance on Georgia v. Randolph is misplaced because the facts alleged in his Application are sufficiently different from the limited holding in that case.
Mr. Esparza also has failed to demonstrate that the Colorado Court of Appeals relied on incorrect federal constitutional standards by following United States v. Matlock to determine whether the search was proper based on voluntary consent by a co-occupant who has authority over the property. Based on the state courts' factual findings and United States Supreme Court precedent, the Court cannot find that the Colorado Court of Appeals applied a rule "contrary to" any current, materially distinguishable Supreme Court case, or that it "unreasonably applied" the governing Supreme Court law to the facts of this case. See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) ("A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous"). Accordingly, Mr. Esparza is not entitled to federal habeas relief as to Claim Five, and Claim Five will be dismissed.
Mr. Esparza contends in Claim Six that prosecutorial misconduct violated his constitutional right to a fair trial. (Doc. # 1 at 21-22). Mr. Esparza asserts that the prosecution intentionally misled the defense by stating at a preliminary hearing that it intended to mention only the "charge and the basic allegations" of the Jefferson County sexual assault case, but then at trial presented evidence to support the allegations. (Id.). Mr. Esparza further alleges that despite the trial court's limiting rule regarding the Jefferson County case, "the prosecution introduced all of the specific, highly prejudicial facts of the untried charges throughout Mr. Esparza's trial." (Id.).
The clearly established federal law for purposes of a claim of prosecutorial misconduct is the Supreme Court's decision in Darden v. Wainwright, 477 U.S. 168 (1986). See Parker v. Matthews, 132 S.Ct. 2148, 2153 (2012) (per curiam). In Darden, the Supreme Court explained that prosecutorial misconduct violates the Constitution only when the misconduct "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" 477 U.S. at 181 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In order to determine whether prosecutorial misconduct rendered the trial fundamentally unfair, the Court must consider "the totality of the circumstances, evaluating the prosecutor's conduct in the context of the whole trial." Jackson v. Shanks, 143 F.3d 1313, 1322 (10th Cir. 1998). "[T]he Darden standard is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker, 132 S. Ct. at 2155 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Finally, prosecutorial misconduct claims are mixed questions of law and fact. See Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir. 2002).
The Colorado Court of Appeals rejected Mr. Esparza's claim of prosecutorial misconduct as follows:
(Doc. # 8-7 at 27-28).
The Court finds that Mr. Esparza fails to present any evidence, let alone clear and convincing evidence, to overcome the presumption of correctness that attaches to the state court's factual determinations that the prosecution did not intentionally mislead the trial court and Mr. Esparza's attorneys and that the prosecution did not violate the court's express rulings regarding the Jefferson County case. Mr. Esparza argues that the prosecution played a "semantic game" when it stated it would present the "basic allegations" of the sexual assault case and that "allegations" only meant the charges and not the evidence supporting the charges. (Doc. # 1 at 22). However, the state court record provides no indication that the prosecution intentionally deceived Mr. Esparza's counsel and the trial court. Instead, the prosecution stated in its notice of intent to introduce "all information related to" the Jefferson County case, and the notice was appended with a "general summary" of the facts in that case from the officer's report. (See Doc. # 8-7 at 27; State Court R., 2/11/05 People's Notice of Intent to Introduce Res Gestae Evidence and/or Evidence of Other Acts of the Defendant Pursuant to CRE 404, at 190-250). In addition, the prosecution represented that it would elicit testimony regarding the "basic allegations," which the trial court ruled as admissible. (See State Court. R., 7/11/05 Hrg. Trans. at 1139-42). Therefore, the Court cannot find that the Colorado Court of Appeals' decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
Mr. Esparza also fails to demonstrate that the decision of the Colorado Court of Appeals is either contrary to or an unreasonable application of clearly established federal law. He does not cite any contradictory governing law set forth in Supreme Court cases or any materially indistinguishable Supreme Court decision that would compel a different result. See House, 527 F.3d at 1018. He also fails to demonstrate that the state court's ruling "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. 786-87. As noted above, "the Darden standard is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker, 123 S. Ct. at 2155 (quoting Yarborough, 541 U.S. at 664). In light of this very general standard, the absence of any evidence or indication that the prosecutor intentionally misled the trial court and Mr. Esparza's attorneys and violated the trial court's rulings, the Court cannot conclude that Mr. Esparza's trial was fundamentally unfair. Therefore, Mr. Esparza is not entitled to relief on this claim and Claim Six will be dismissed.
In remaining Claim Seven, Mr. Esparza contends that he received ineffective assistance of counsel because (a) counsel did not conduct a sufficient investigation into his casino alibi defense; (b) counsel failed to secure a Gun Shot Residue expert to challenge the State's interpretation of the CBI test results; and (c) counsel infringed on his right to plead not guilty and to testify on his own behalf by admitting his guilt in opening statements. (Doc. # 1 at 22-27).
It was clearly established when Mr. Esparza 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. Esparza 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. Esparza'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. Esparza 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."). In determining whether Mr. Esparza has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Mr. Esparza. See Boyd, 179 F.3d at 914. If Mr. Esparza fails to satisfy his burden with regard to either prong of the Strickland test, his ineffective assistance of counsel claim must be dismissed. See Strickland at 697.
Finally, 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).
Mr. Esparza contends in Claim 7(a) and (b) that he was denied the effective assistance of counsel because counsel failed to investigate more thoroughly his casino alibi defense and to challenge the CBI test results by hiring a Gun Shot Residue expert.
The Colorado Court of Appeals applied the two-part Strickland test in rejecting Mr. Esparza's ineffective assistance of counsel claims as follows
(Doc. # 8-13 at 10-13).
Mr. Esparza fails to demonstrate that the state court's rejection of Claim 7(a) and (b) was contrary to or involved an unreasonable application of clearly established law. He fails to cite to any contradicting governing law set forth by the Supreme Court or any materially indistinguishable Supreme Court decision that would compel a different result with respect to his claims.
Mr. Esparza also fails to demonstrate that the state court's rejection of Claim 7(a) and (b) was an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Because the state court did not hold an evidentiary hearing as to Mr. Esparza's ineffective assistance of counsel claims, the Court evaluates "the factual record" made by his trial counsel. Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir. 1998)
In the Application and the Reply, Mr. Esparza contends that it was clearly erroneous for the trial court to assume that Mr. Esparza's counsel timely requested casino videotapes that were properly formatted and that counsel's failure to challenge the CBI test results was unreasonable. (Doc. # 1 at 10-13; Doc. # 25 at 25-29). These arguments are belied by the state court's factual determination that the prosecution turned over to trial counsel all the casino surveillance tapes for the relevant time period, a factual determination the Court presumes to be correct under § 2254(e)(1). Further, a review of the state court record establishes that trial counsel had contacted the casinos very early on in the investigation, made a motion for a discovery violation for late disclosure of a casino report, and requested reformatting of the tapes. (See State Court. R., 7/7/05 Hrg. Trans. at 999-1015; 7/8/05 Hrg. Trans. at 1038-45, 1053-67). Mr. Esparza has made no showing that counsel's alleged failure to properly investigate the casino alibi defense was not based upon a valid strategic choice. See Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002) (finding that defendant bears "the burden of showing that counsel's action or inaction was not based on a valid strategic choice."). Accordingly, the "presumption that the attorney's decision was objectively reasonable," attaches to this decision, and it becomes "virtually unchallengeable." United States v. Nguyen, 413 F.3d 1170, 1181 (10th Cir. 2005).
Moreover, Mr. Esparza also fails to demonstrate the state court's determination that counsel made a strategic decision not to challenge the CBI test results by hiring a Gun Shot Residue expert is an unreasonable application of the deficient performance prong of the Strickland analysis. See Strickland, 466 U.S. at 690 (counsel's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). Moreover, Mr. Esparza does not adequately address the fact that the state appellate court also rejected the claim due to his failure to demonstrate prejudice under Strickland, which was based on his failure to present any evidence that would have resulted from the hiring of a Gun Shot Residue expert.
Mr. Esparza has not demonstrated that the state courts' rejection of his claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. 786-87. As a result, the Court finds that the decision of the appellate court did not result in a decision that was contrary to, or involved an unreasonable application of Strickland. Thus, Mr. Esparza is not entitled to relief on Claim 7(a) and (b).
Mr. Esparza contends in Claim 7(c) that he was denied the effective assistance of counsel because counsel admitted his guilt during opening statements. More specifically, Mr. Esparza contends that counsel's statement was the functional equivalent of "pleading him guilty to the lesser-included offense of second degree murder and undercutting any testimony he might try to give concerning his whereabouts and innocence." (Doc. # 1 at 26).
The Colorado Court of Appeals applied the two-part Strickland test and reasoned as follows in rejecting the claim:
(Doc. # 8-13 at 6-10.)
Mr. Esparza fails to demonstrate that the state court's rejection of the Claim 7(c) was contrary to clearly established law. He alleges that Bergerud, although decided several years after his trial, was built upon "long-standing federal rights" which were violated and cites only to Williams v. Taylor, 529 U.S. 362 (2000) to support his argument. In Williams, the Supreme Court held that the state supreme court rendered a decision that was contrary to or an unreasonable application of clearly established federal law and that petitioner's right to ineffective assistance of counsel as defined in Strickland was violated where his counsel was incompetent at sentencing by failing to present mitigation evidence. Id. at 399. This case does not demonstrate contradictory governing law or a materially indistinguishable decision that would compel a different result in Mr. Esparza's case.
Mr. Esparza also asserts that counsel's opening statement foreclosed his right to testify during trial and relieved the prosecution of its burden of persuasion. A limited exception to Strickland's two-part test applies in situations that "are so likely to prejudice the accused that the cost of litigating their effect in the particular case is unjustified." United States v. Cronic, 466 U.S. 648, 658 (1984). One situation in which prejudice under Strickland will be presumed is when "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing." Bell v. Cone, 535 U.S. 685, 696 (2002) (quoting Cronic, 466 U.S. at 659). However, an attorney's strategic decision to concede certain points or even guilt of a lesser offense is not the equivalent of a complete failure to subject the prosecution's case to meaningful testing. See Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002) (concluding "strategic or tactical decisions are evaluated under Strickland's traditional two-pronged test" because "Cronic" is reserved only for those extreme cases in which counsel fails to present any defense.") Thus, the state court's decision is not contrary to clearly established federal law.
Mr. Esparza also fails to demonstrate that the state court's rejection of Claim 7(c) was an unreasonable application of clearly established federal law. The Court has little to add to the state appellate court's thorough analysis set forth above. In short, the Court agrees that Mr. Esparza's counsel's decision to pursue a mitigation defense rather than alibi was within counsel's purview under Colorado Supreme Court and United States Supreme Court precedent. (See Doc. # 8-13 at 6-10) (citing Steward v. People, 498 P.2d 933, 934 (Colo. 1972) (holding that what defense to present was within the purview of trial counsel) and (citing Florida v. Nixon, 543 U.S. 175, 187, 189 (2004) (holding that an attorney was not "required to gain express consent before conceding the defendant's guilt because a defendant has the ultimate authority to determine only whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal)).
Moreover, the Court agrees that the evidence against Mr. Esparza was significant and, in light of such evidence of guilt, counsel's decision to pursue a mitigation defense was not deficient performance and did not prejudice Mr. Esparza. See e.g., Haynes, 298 F.3d at 382-83 (petitioner could not establish prejudice under Strickland stemming from counsel's strategic concession, against petitioner's wishes, of facts amounting to second degree murder because evidence of guilt was overwhelming). In any event, the state court's decision was "not so lacking in justification that there was an error well understood and comprehended by existing law beyond any possibility for fairminded disagreement." Richter, 131 S.Ct. 786-87. As a result, Mr. Esparza is not entitled to relief on Claim 7(c).
In summary, the Court finds that Mr. Esparza is not entitled to relief on any of his remaining habeas claims.
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. Esparza 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. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Esparza files a notice of appeal, he also must pay the full 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.
Finally, Mr. Esparza's request for copies of documents from the state court record will be denied. The state court record is currently in this Court's possession and will be retained in the federal courts' possession pending the expiration of Mr. Esparza's time to file a notice of appeal in the Tenth Circuit or during the pendency of any appeal he may file in the federal courts. Once his entire federal appellate process is complete, the record will be returned to the Arapahoe County District Court and Mr. Esparza may request copies of any documents in the state court record from that court for his state court appellate proceedings.
