WILLIAM J. MARTÍNEZ, District Judge.
Applicant, James Bryant, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction in the District Court of Mesa County, Colorado. Respondents have filed an Answer (ECF No. 18), and Applicant was allowed an opportunity to file a Reply. Having considered the same, along with the state court record, the Court will deny the Application.
On August 25, 2005, Applicant was convicted by a jury of assault on a peace officer, and distribution of a schedule II controlled substance, in El Paso County District Court Case No. 03CR1282. (ECF No. 1, at 1-2). Upon his adjudication as a habitual criminal, Applicant was sentenced to an aggregate prison term of 48 years. (Id. at 2; ECF No. 9-1, at 6).
The Colorado Court of Appeals affirmed Applicant's convictions on direct appeal in People v. Bryant (Bryant I), No. 05CA2084 (Colo. App. March 5, 2009) (unpublished decision). (ECF No. 9-10). The state appellate court summarized the relevant facts as follows:
(Bryant I, ECF No. 9-10, at 3-5).
Applicant's request for certiorari review was denied by the Colorado Supreme Court on November 9, 2009 (ECF No. 9-8), and by the United States Supreme Court on March 22, 2010. (ECF No. 9-6).
On April 10, 2010, Applicant filed pro se a motion for post-conviction relief pursuant to Colo. R. Crim. P. 35(c), which was denied summarily by the state district court on April 29, 2010. (ECF No. 9-5). The Colorado Court of Appeals affirmed in People v. Bryant (Bryant II), No. 10-CA1107 (Colo. App. June 21, 2012) (unpublished). (ECF No. 9-3). Applicant filed a petition for rehearing, which was denied on November 1, 2012. (ECF No. 9-2). He did not file a petition for certiorari review with the Colorado Supreme Court.
Applicant initiated this action on August 16, 2013. In a December 4, 2013 Order, the Court determined that Applicant presented the following claims in the Application, which are the same claims that he raised in his opening brief to the Colorado Court of Appeals in Bryant II:
On October 15, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a pre-answer response addressing the affirmative defenses of timeliness and exhaustion of state court remedies. In the pre-answer response, Respondents conceded that the Application was timely under the one-year limitation period set forth in 28 U.S.C. § 2244(d)(1). (ECF No. 9, at 6-7). Respondents argued, however, that Applicant failed to exhaust state remedies for his claims because he did not present them in a petition for certiorari review to the Colorado Court of Appeals. In a December 4, 2013 Order, Senior U.S. District Judge Lewis T. Babcock rejected the affirmative defense of failure to exhaust. The Court addresses the merits of Applicant's claims below.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is whether the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
House, 527 F.3d at 1018.
The court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,
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. Moreover, "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 federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
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).
Applicant is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
In his first claim, Applicant raises several allegations of ineffective assistance of trial counsel (IAC). To prevail, Applicant must show that: (1) counsel's legal representation fell below an objective standard of reasonableness; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel's performance is highly deferential. Id. at 689. Counsel's decisions are presumed to represent "sound trial strategy;" "[f]or 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) (internal quotations omitted). Under the AEDPA standard of review, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S.Ct. at 788.
Prejudice exists when there is a reasonable probability that, but for counsel's defective representation, the result of the proceeding would have been different. Strickland, 466 U.S. at 693. The likelihood of a different result must be substantial, not just conceivable. Id. The Court need not address both prongs of the Strickland inquiry if Applicant's claim fails on one. Id. at 697.
In Applicant's state post-conviction proceeding, the Colorado Court of Appeals applied the Strickland standard to each of his IAC claims. (Bryant II, ECF No. 9-3, at 6-7). The Court thus reviews the claims to determine if the state appellate court's determinations reasonably applied Strickland.
In sub-claim 1(a), Applicant asserts that trial counsel was constitutionally ineffective in failing to conduct a sufficient investigation to discover that the officer who first spotted what looked like a drug transaction (i) reported the wrong license tag number to dispatch; (ii) lied about his commendations; and, (iii) lied about the injury resulting from Applicant's assault, all of which would "most likely" have resulted in suppression of all evidence against him (ECF No. 1, at 12; 9-4, at 12-13).
The state appellate court rejected Applicant's contention in sub-claim 1(a)(i) on the following grounds:
(Bryant II, ECF No. 9-3, at 7-8).
The Court finds that the Colorado Court of Appeals' determination comported with Strickland. The state appellate court's decision in Bryant I upholding the trial court's conclusion that the investigatory stop was legal (see ECF No. 9-10, at 7-9) is supported by the evidence presented in the state court proceeding (State Court R., 6/15/05 Trial Tr., at 49-75), and has not been challenged by Applicant in his federal Application. Because the Colorado Court of Appeals decided that the investigatory stop was justified based on facts other than the temporary license tag, Applicant has failed to show a reasonable likelihood of acquittal if counsel had discovered that the officer provided an incorrect temporary license number to dispatch. Accordingly, Applicant cannot prevail on claim 1(a)(i).
The state appellate court rejected Applicant's contentions in sub-claim 1(a)(ii) and (iii) based on the following reasoning.
Next, we reject Bryant's argument that he was prejudiced by counsel's failure to investigate the officer's prior award history or his need for medical treatment.
(Id. at 8-9).
The state appellate court's factual findings are presumed correct and are supported by the state court record. Applicant does not provide any factual support for his allegation that Officer Shive lied when he testified about the awards he had received for outstanding service. Moreover, contrary to Applicant's assertions in his opening brief to the Colorado Court of Appeals, Officer Shive did not testify that he received medical treatment at a hospital for his injuries. (See ECF No. 9-4, at 13). Instead, the officer stated that he went to the hospital to be "checked out" pursuant to police department protocol, but did not receive any medical treatment for the bruising he suffered as a result of Applicant punching him in the face. (State Court R., 6/15/05 Trial Tr., at 84-85). The deputy district attorney present at the scene also testified about the assault. (Id., 6/14/05 Trial Tr. (afternoon proceeding), at 38). Furthermore, as the state appellate court observed, defense counsel subjected Officer Shive to a grueling cross examination, based, in part, on a petty offense misconduct conviction the officer received in 2002 for making a false statement in an affidavit in support of a search warrant. (Id. at 112-172). In short, Applicant has failed to demonstrate that, even if Officer Shive did lie about the awards he received after his petty offense conviction, the additional impeachment evidence reasonably would have altered the outcome of Applicant's trial.
Finally, the Court recognizes that Applicant also argued in his opening brief to the Colorado Court of Appeals in Bryant II that trial counsel should have discovered that the money the police found in the vehicle belonged to his mother. Because Applicant exhausted his state court remedies, the allegation is entitled to review by this Court under the AEDPA standards.
The state appellate court rejected the IAC allegation because Applicant failed to "allege how such evidence would have affected his conviction, given the apparent drug transaction taking place when the officer first observed him, and the seizure of large quantities of cocaine and cash on his person." (Bryant II, ECF No. 9-3, at 9). The state court further observed that Applicant failed to explain why he did not provide this information to his attorney. (Id.). The state court's factual findings are presumed correct and are supported by the state court record. (State Court R., 6/14/05 Trial Tr. (afternoon proceedings), at 67-83; 6/15/05 Trial Tr., at 87, 93-96, 204). In light of the substantial evidence of guilt, Applicant has failed to demonstrate how any additional evidence concerning ownership of the money found in the vehicle would reasonably have resulted in an acquittal. The Court thus finds that the Colorado Court of Appeals' resolution of his claim was reasonable under Strickland.
Claim 1(a) will be dismissed in its entirety, including the allegation that trial counsel should have discovered that the money found in the vehicle belonged to Applicant's mother.
For sub-claim 1(b), Applicant contends that trial counsel was constitutionally ineffective in failing to impeach the officer with his inconsistent preliminary hearing testimony. (ECF No. 1, at 12; No. 9-4, at 13-14).
The Colorado Court of Appeals addressed Applicant's argument as follows:
(Bryant II, ECF No. 9-3, at 9-10).
The Court finds that the state appellate court's resolution of Applicant's claim was consistent with Strickland because Applicant fails to explain what testimony by the officer at trial differed from the officer's trial testimony and how any asserted differences affected the jury's verdict. Conclusory assertions are insufficient to support an ineffective assistance of counsel claim. See Cummings v. Sirmons, 506 F.3d 1211, 1228-29, 33-34 (10th Cir. 2007) (allegations based on unsubstantiated assertions of fact are not sufficient to satisfy Strickland); see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails "where [petitioner's] allegations are merely conclusory in nature and without supporting factual averments"). Sub-claim 1(b) therefore will be dismissed.
In sub-claim 1(c), Applicant asserts that trial counsel was constitutionally ineffective in failing to use a peremptory strike against a prospective juror. (ECF No. 1, at 12; No. 9-4; at 14-15).
The Colorado Court of Appeals rejected this claim on the following grounds:
(Bryant II, ECF No. 9-3, at 11-12). The state appellate court further found that the trial court independently questioned the juror about his acquaintance with the officer and the juror stated unequivocally that he would not give the officer's testimony any greater credibility than another witness, and that he could be a fair and impartial juror in the case. (Id. at 13). Finally, the Colorado Court of Appeals noted that the juror did not express any bias or prejudice against Applicant in response to specific questions posed to the prospective jurors, and did not express any doubts or concerns about the presumption of innocence. (Id. at 14) The state appellate court concluded that counsel's failure to request that the juror be excused did not constitute deficient performance under Strickland. (Id.).
The state court's factual findings are presumed correct, are supported by the state court record (see generally 6/15/15 Trial Tr. (morning proceeding)), and have not been rebutted by Applicant. The Court finds that the Colorado Court of Appeals' resolution of Applicant's claim did not run afoul of Strickland because there is no evidence of juror bias. See Patton v. Yount, 467 U.S. 1025, 1035 (1984) (to demonstrate juror bias, a defendant must show that the juror had such a fixed opinion that he or she could not judge impartially). Absent evidence of actual bias, Applicant could not have been prejudiced by trial counsel's failure to challenge the prospective juror for cause. See Hale v. Gibson, 227 F.3d 1298, 1319-22 (10th Cir. 2000) (rejecting ineffective-assistance-of-counsel claim because challenged jurors all said, either explicitly or implicitly, that they could "put aside their opinions and judge the case impartially on the evidence"; to demonstrate juror bias, an applicant must show more than the juror's "preconceived notion of guilt;" he must show that the juror "had such a fixed opinion that he or she could not judge impartially"). Sub-claim 1(c) will be dismissed.
For sub-claim 1(d), Applicant contends that trial counsel was ineffective in failing to request Applicant's presence during a discussion whether to replace a juror with an alternate. (ECF No. 1, at 12; No. 9-4, at 15-17).
The Colorado Court of Appeals resolved the claim as follows:
(Bryant II, ECF No. 9-3, at 14-15).
The state court record refutes any reasonable probability that Applicant's presence at the conference between the trial court and counsel would have changed the outcome of his trial. As discussed in Bryant II, the prosecution's request that the tardy juror be replaced with an alternate was denied. It is not likely that the trial court would have granted a similar request by Applicant. And, Applicant does not point to any evidence that the tardy juror who decided his guilt was actually biased against him, or that the alternate juror would not have convicted him, in light of the overwhelming evidence of guilt presented at trial. In short, Applicant fails to demonstrate how he was prejudiced by his absence from the court conference. The Court thus finds that the state appellate court's resolution of his claim was consistent with Strickland. Sub-claim 1(d) will be dismissed.
In sub-claim 1(e), Applicant asserts that trial counsel was ineffective in failing to renew the motion to suppress during trial, based on trial evidence that purportedly supported suppression (ECF No. 1, at 12; No. 9-4, at 17-18).
The Colorado Court of Appeals rejected this claim on the following grounds:
(Bryant II, ECF No. 9-3, at 15-16).
In Bryant I, the Colorado Court of Appeals found no merit to the underlying bases of Applicant's IAC claim because the inconsistencies in Officer Shive's testimony cited by Applicant were "not supported by the record, were not brought to the district court's attention, or were for the jury to resolve," (ECF No. 9-10, at 13), and, therefore, did not require the district court sua sponte to reconsider its suppression ruling. (Id.; see also id., at 10-12).
Defense counsel is not obliged to raise non-meritorious claims before the trial court. See Cannon, 383 F.3d at 1161-62 (where there is no basis under the Constitution or under state law for objection to evidence, counsel cannot have been ineffective for failing to raise it); accord Ford v. Norris, 364 F.3d 916, 919 (8th Cir. 2004) (where state supreme court concluded that a state-law objection would have probably been unsuccessful, counsel cannot have been ineffective in failing to make it).
Further, the Court has carefully reviewed the alleged contradictions raised by Applicant in Bryant I (ECF No. 9-10, at 10-13), as well as the state hearing and trial transcripts, and finds that none of the asserted inconsistencies, either singularly or in toto, were sufficient to demonstrate a reasonable probability that the outcome of Applicant's trial would have been different had defense counsel renewed the motion to suppress at trial. The Court therefore finds that the state appellate court's resolution of Applicant's claim comported with Strickland. Sub-claim 1(e) will be dismissed.
For sub-claim 1(f), Applicant contends that counsel was ineffective in failing to move to suppress and object to evidence that officers answered calls to Applicant's cell phone and spoke with people who were seeking to buy drugs. (ECF No. 1, at 12; No. 9-4, at 18-21).
The Colorado Court of Appeals rejected this claim based on the following reasoning:
(Bryant II, ECF No. 9-3, at 16-18). The state appellate court's findings are presumed correct, are supported by the state court record (see 6/15/05 Trial Tr., at 205-09, 212-14), and have not been rebutted by Applicant. Initially, the Court observes that defense counsel did raise unsuccessful foundational and prejudice objections to the cell phone evidence at trial, which were rejected by the state court. (State Court R., 6/15/05 Trial Tr., at 11-13, 109-10). The trial court's ruling was affirmed on direct appeal in Bryant I. (ECF No. 9-10, at 13). Further, the evidence of Applicant's guilt was significant without the officer's testimony about the cell phone calls. As such, Applicant fails to demonstrate a reasonable probability of acquittal had the cell phone evidence been excluded. The Court finds that the Colorado Court of Appeals reasonably applied the Strickland prejudice standard in rejecting Applicant's claim. Sub-claim 1(f) will be dismissed.
In sub-claim 1(g), Applicant asserts that trial counsel was ineffective in failing to seek a jury trial on the habitual criminal counts. (ECF No. 1, at 12; No. 9-4, at 21-22).
The state appellate court rejected this claim because the Colorado statute providing that habitual criminal charges be adjudicated by a judge, not a jury, has been upheld as constitutional. (Bryant II, ECF No. 9-3, at 18-19 (citing People v. Nunn, 148 P.3d 222, 225 (Colo. App. 2006, relying on Almendarez-Torres v. United States, 523 U.S. 224 (1998) and §§ 18-1.3-803, C.R.S.). As such, the court reasoned, defense counsel did not provide defective assistance. (Id.).
In Almendarez-Torres, the United States Supreme Court held that prior felony convictions are sentence enhancements, not elements of an offense, and therefore need not be proved to a jury beyond a reasonable doubt. 523 U.S. at 239-47. The holding in Almendarez-Torres has been affirmed in later Supreme Court decisions. See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt") (emphasis added); United States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming the recidivism exception announced in Apprendi).
The Court finds that the state appellate court's ruling was not contrary to or an unreasonable application of applicable Supreme Court cases. Accordingly, Applicant is not entitled to federal habeas relief for sub-claim 1(g).
For sub-claim 1(h), Applicant contends that counsel was ineffective in failing to move for a proportionality review. (ECF No. 1, at 12; No. 9-4, at 22-24).
"The Eighth Amendment contains a `narrow proportionality principle' that `applies to noncapital sentences.'" Ewing v. California, 538 U.S. 11, 20 (2003) (citing and quoting Harmelin v. Michigan, 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring in part and concurring in the judgment)); see also Hawkins v. Hargett, 200 F.3d 1279, 1282 (10th Cir. 1999) (recognizing that Justice Kennedy's opinion in Harmelin sets forth the applicable Eighth Amendment proportionality test."). A sentence violates the Eighth Amendment if it is "`grossly disproportionate' to the crime." Ewing, 538 U.S. at 23 (quoting Justice Kennedy's concurrence in Harmelin, 501 U.S. at 1001); see also Lockyer v. Andrade, 538 U.S. 63, 72 (2003) ("[O]ne governing legal principle emerges as `clearly established' under § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years.").
In analyzing Applicant's claim, the Colorado Court of Appeals recognized that the constitutional prohibition against cruel and unusual punishment prohibits only those sentences that are "grossly disproportionate" to the crime. (Bryant II, ECF No. 9-3, at 19). The state appellate court assessed Applicant's forty-eight year sentence to determine whether "the gravity or seriousness of the triggering crime together with the gravity or seriousness of the underlying crimes" to determine whether they are "so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate." (Id. at 20). The state court then engaged in the following analysis:
(Id. at 21-23).
The Colorado Court of Appeals conducted a proportionality review and concluded that Applicant's 48-year habitual offender sentence was not grossly disproportionate to his crimes. The state appellate court's conclusion was consistent with Supreme Court case law. See Rummel v. Estelle, 445 U.S. 263, 265-66, 275-76 (1980) (concluding that sentence of life imprisonment with possibility of parole imposed under state recidivist statute did not violate Eighth Amendment, where defendant had two previous felony convictions—one for "fraudulent use of a credit card to obtain $80 in goods or services" and another for "passing a forged check in the amount of $28.36" — and was then convicted of felony theft for "obtaining $120.75 by false pretenses"); Hutto v. Davis, 454 U.S. 370 (1982) (upholding against a proportionality attack a sentence of 40 years' imprisonment for possession with intent to distribute nine ounces of marijuana); Harmelin, 501 U.S. 957, 994 (1991) (plurality opinion holding that sentence of life imprisonment without parole for first-time offender's possession of 672 grams of cocaine did not violate the Eighth Amendment); Ewing, 538 U.S. at 30-31 (upholding against a proportionality attack a twenty-five year to life sentence imposed under a California recidivist statute for the offense of felony grand theft (i.e., stealing three golf clubs worth approximately $1,200); Lockyer, 538 U.S. at 77 (upholding on federal habeas review the state appellate court's determination that two consecutive twenty-five-year to life sentences imposed under a state recidivist statute for two counts of petty theft did not violate clearly established Supreme Court Eighth Amendment jurisprudence).
The Court finds that the Colorado Court of Appeals' decision comported with Strickland. Applicant has failed to demonstrate a reasonable probability that he would have received a more lenient sentence if defense counsel had requested a proportionality review. Sub-claim 1(f) lacks merit and will be dismissed.
In sub-claim 1(i), Applicant asserts that trial counsel was ineffective in failing to ensure that Applicant received a proper trial court advisement on the right to testify (a requirement set out in People v. Curtis, 681 P.2d 504 (Colo. 1984)
The right of a criminal defendant to testify in his own defense is fundamental, see Rock v. Arkansas, 483 U.S. 44, 51 (1987), such that its waiver must be knowing, intelligent and made by the defendant personally. See Jones v. Barnes, 463 U.S. 745, 751 (1983).
The Colorado Court of Appeals found no merit to Applicant's claim based on the following:
(Bryant II, ECF No. 9-3, at 24-26).
Applicant does not point to any clear and convincing evidence to refute the state court's factual findings that he received an adequate advisement concerning his constitutional right to testify. The Court has reviewed the trial transcript and finds that the state appellate court's resolution of Applicant's claim was reasonable in light of the colloquy between the trial judge and Applicant, which reflects that Applicant knowingly, intelligently and personally waived his right to testify. Applicant thus cannot prevail on sub-claim 1(i).
For sub-claim 1(j), Applicant contends that the cumulative effect of trial counsel's mistakes caused prejudice sufficient to warrant a new trial. (ECF No. 1, at 12; No. 9-4, at 26).
Cumulative error is present when the "cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc)). "A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of trial is such that collectively they can no longer be determined to be harmless." Id. (quoting Rivera, 900 F.2d at 1470). On federal habeas review, a cumulative error analysis applies only to cumulative constitutional errors. Young v. Sirmons, 551 F.3d 942, 972 (10th Cir. 2008).
There is a split in the Circuit Courts of Appeal as to whether the need to conduct a cumulative-error analysis is clearly established federal law under § 2254(d)(1). See Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012). The Tenth Circuit has indicated, however, that in the context of ineffective-assistance claims, "for AEDPA purposes, the cumulative-error inquiry is clearly established federal law. Id.; see also Littlejohn v. Trammell, 704 F.3d 817, 869 (10th Cir. 2013) (recognizing that "[a]though we have never expressly held . . . that cumulative-error analysis is clearly established federal law, we have long conducted cumulative-error analyses in our review of federal habeas claims.") (collecting cases). This Court need not resolve the issue because under the deferential AEDPA standard of review, Applicant is not entitled to relief.
The state appellate court resolved Applicant's claim as follows: "Here, it is not apparent that there was any error, and the few we have assumed for argument's sake were clearly harmless. Thus, there was not cumulative error." (Bryant II, ECF No. 9-3, at 27). In other words, for those IAC claims where the Colorado Court of Appeals assumed deficient performance by counsel, the state court nonetheless found that Applicant was not prejudiced by counsel's errors.
The Colorado Court of Appeals' determination of Applicant's cumulative error claim did not run afoul of Strickland. The state court's findings that each of Applicant's IAC claims lacked merit means that there can be no cumulative prejudice. See Jackson v. Shanks, 143 F.3d 1313, 1321 (10th Cir. 1998) (where none of the alleged evidentiary errors had merit, the cumulative effect of counsel's failure to raise them on appeal failed to accumulate to Strickland prejudice). Sub-claim 1(j) will be dismissed.
For his second claim, Applicant asserts that appellate counsel was constitutionally ineffective in failing to raise certain issues on direct appeal of his conviction. This claim is governed by the Strickland standard. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003); Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988). "[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones, 463 U.S. at 751-53.).
Applicant contends in sub-claim 2(a), that direct appeal counsel was ineffective in failing to challenge the absence of a jury determination of the habitual criminal counts. (ECF No. 1, at 14; No. 9-4, at 27).
The Colorado Court of Appeals, applying Supreme Court standards (see ECF No. 9-3, at 27), concluded that the claim lacked merit based on its rejection of Applicant's claim of ineffective assistance of trial counsel that raised the same allegation. (Bryant II, ECF No. 9-3, at 28).
Because Applicant was not entitled to a jury determination on the habitual criminal counts, as discussed in Section III.A.7, supra, counsel's failure to raise the issue on direct appeal was not deficient or prejudicial. See Jackson, 153 F.3d at 1321 ("Absent counsel's omission of an obvious winner on appeal, we are not inclined to second-guess appellate counsel's decision to eliminate arguable but weak claims," citing United States v. Cook, 45 F.3d 388, 394-95 (10th Cir. 1995)). Accordingly, sub-claim 2(a) will be dismissed.
Applicant maintains in sub-claim 2(b) that appellate counsel was ineffective in failing to raise an argument that the trial court erred in permitting the prosecution to amend the Information to correctly name one of the prior convictions used to enhance his sentence. (Id.; No. 9-3, at 27-28).
The state appellate court addressed the claim as follows:
(Bryant II, ECF No. 9-3, at 28-31).
The Colorado Court of Appeals addressed and rejected the merits of Applicant's underlying claim that the trial court erred in permitting the prosecution to amend the Information. The state court's finding are reasonable in light of the evidence before the trial court. (See State Court R., 6/15/05 Trial Tr., at 219-230; Court File, at 5, 67, 71). Because the underlying basis of Applicant's IAC's claim lacks merit, the state appellate court's conclusion that Applicant was not prejudiced by counsel's failure to raise the issue on direct appeal was a reasonable application of Strickland. See Jackson, 143 F.3d at 1321. Sub-claim 2(b) will be dismissed.
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1), filed by James Bryant, on August 16, 2013, is DENIED and this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that no certificate of appealability shall issue because Applicant has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). 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 would not be taken in good faith 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.
