ORDER DENYING PETITION FOR HABEAS CORPUS

CHRISTINE M. ARGUELLO, District Judge.

The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 16. The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).

I. BACKGROUND

Applicant pleaded guilty to second degree murder and one count of attempted sexual assault. See Pre-Answer Resp., App. C, ECF No. 9-3, at 4. In the only appeal that Applicant submitted to the Colorado Court of Appeals (CCA) challenging both his direct appeal and the denial of his Colo. R. Crim. P. 35(c) postconviction motion, see id. at 3, the CCA summarized the underlying facts and proceedings as follows:

People of the State of Colo. v. Velarde, No. 12CA2183,1-4 (Colo. App. June 26, 2014).

II. HABEAS CLAIMS

Applicant, acting pro se, initiated this action on August 25, 2014, and subsequently, pursuant to Court order, filed an Amended Application on November 10, 2014. He asserts four claims in the Amended Application as follows:

Am. Application, ECF No. 16.

On November 11, 2014, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file a Supplemental Pre-Answer Response regarding the November 10, 2014 Amended Application and address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses. Respondents filed a Supplemental Pre-Answer Response on November 24, 2014. Applicant filed a Supplemental Reply on December 18, 2014. Respondents concede in the Pre-Answer Response that the Application is timely, but they argue that Claim Two is unexhausted and Claims One, Three, and Four are anticipatorily defaulted.

This Court reviewed the Amended Application, Supplemental Pre-Answer Response, and Supplemental Reply and determined that Claim Two is exhausted. The Court also deferred a ruling on whether Applicant had demonstrated cause for his procedural default under Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012), pending the Court's receipt of the state court record in the criminal case at issue. Respondents were directed to file an answer that fully addresses the merits of Claim Two, and if they desired to include additional arguments concerning the merits of Claims One, Three, and Four.

Respondents filed an Answer, ECF No. 25, on January 21, 2015. Applicant filed a Traverse, ECF No. 29, on March 9, 2015.

III. LEGAL STANDARDS

A. Pro Se Standard of Review

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). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).

B. 28 U.S.C. § 2254

Section 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court, unless the state court adjudication:

28 U.S.C. § 2254(d).

The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question pursuant to § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits." Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398 (2011). "Finality occurs when direct state appeals have been exhausted and a petition for writ of certiorari from this Court has become time barred or has been disposed of." Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).

Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. Furthermore,

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (citation omitted).

If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

House, 527 F.3d at 1018.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective one. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,

Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted). The Court "must determine what arguments or theories supported or . . . could have supported[ ] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. (citation omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (internal quotation marks and citation omitted).

"[O]nly the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671. Furthermore,

Richter, 562 U.S. at 103.

The Court reviews claims of factual errors pursuant to 28 U.S.C. § 2254(d)(2) and . See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows a court to grant a writ of habeas corpus only if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and Applicant bears the burden of rebutting the presumption by clear and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

A claim, however, may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Richter, 562 U.S. at 98 ("[D]etermining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning") (citations omitted). Furthermore, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.

In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [its] independent review of the record and pertinent federal law persuades [it] that [the] result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "This `independent review' should be distinguished from a full de novo review of the [applicant's] claims." Id. (citation omitted). Likewise, the Court applies the AEDPA (Antiterrorism and Effective Death Penalty Act) deferential standard of review when a state court adjudicates a federal issue relying solely on a state standard that is at least as favorable to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

IV. ANALYSIS

A. Claim Two

Applicant asserts in Claim Two that counsel was ineffective because he failed to investigate the possible defenses of intoxication and heart attack. ECF No. 16 at 6. He further contends that counsel failed to explain to Applicant that voluntary intoxication is a defense to a murder charge. Id. Respondents argue that the "CCA plainly applied the correct governing principle and [A]pplicant does not point to any Supreme Court case reaching a result diametrically different" from the CCA's on materially identical facts," with respect to these claims. ECF No. 25 at 19.

It was clearly established when Applicant 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, Applicant must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice to his defense. See id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "[A] court considering a claim of ineffective assistance must apply a strong presumption that counsel's representation was within a wide range of reasonable professional assistance." United States v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011) (citations and internal quotation marks omitted). It is an applicant's burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances, see Strickland, 466 U.S. at 689, and that the errors were so serious that "counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment," Rushin, 642 F.3d at 1307 (quoting Richter, 562 U.S. at 104) (emphasis, citation, and internal quotation marks omitted). Applicant bears the burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). An applicant must show counsel failed to act "reasonably considering all the circumstances." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688, 690) (internal quotation marks omitted).

If Applicant fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claim must be dismissed. See Strickland, 466 U.S. at 697. Pursuant to § 2254(e)(1), the factual findings of the state courts are presumed correct. 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).

Under the prejudice prong, an applicant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In assessing prejudice under Strickland the question is whether it is reasonably likely the result would have been different. Richter, 562 U.S. at 111. "The likelihood of a different result must be substantial, not just conceivable." Id. at 112 (citing Strickland, 466 U.S. at 696.)

Furthermore, under AEDPA, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard," which is the question asked "on direct review of a criminal conviction in a United States district court." Richter, 562 U.S. at 101. "When § 2254(d) applies, 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." Id. at 105.

i. Heart Attack Defense

"The duty to investigate derives from counsel's basic function . . . to make the adversarial testing process work in the particular case." Williamson v. Ward, 110 F.3d 1508, 1514 (10th Cir. 1997) (internal quotation marks omitted). "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. (internal quotation marks omitted). "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91. "Counsel [is] entitled to formulate a strategy that [is] reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies." Richter, 562 U.S. at 107.

With respect to the Heart Attack defense, the CCA found as follows:

B. The Alleged "Heart Attack" Defense

Velarde, No. 12CA2183, at 12-14.

In the Traverse, relying on Wiggins v. Smith, 539 U.S. 510, 521-22 (2003), and Strickland, 466 U.S. at 691, Applicant agues that counsel had a duty to make reasonable investigations or make a reasonable decision that particular investigations were unnecessary. Applicant further asserts that counsel only had vague recollections as to conducting investigations regarding the victim's previous medical history and provided no records that he did conduct such investigations. ECF No. 29 at 4. Applicant also contends that plea counsel admits in his testimony that he probably should have conducted a more thorough investigation of the coroner's findings to determine if there was a possibility that the victim died of a heart problem. Id.

At the Rule 35(c) hearing, Applicant's plea attorney testified during direct examination as follows regarding the victim's irregular heartbeat.

Velarde, No. 06CR236, Sept. 2, 2011 Rule 35(c) Hr'g at 22-28.

Plea counsel also testified at the change of plea hearing and stated as follows.

Id., Aug. 10, 2007 Withdraw Plea Hr'g at 73-74.

According to plea counsel's testimony at both the withdrawal of plea and Rule 35(c) hearings, counsel had discussed the coroner's report with the coroner, who confirmed that the cause of death was massive bleeding from the internal wounds in the anal area. Based on these findings, plea counsel's strategy was to argue Applicant had not violated the scope of consent between Applicant and his wife making the issue of one of consent and not of cause of death. Counsel further testified that because he did not have his notes available he could not say whether he asked the coroner if there possibly were other causes of death, but that would have been the proper question for him to ask. Nonetheless, plea counsel testified that they did not have evidence otherwise that would have indicated cause of death was other than massive bleeding.

The Court finds that the CCA's credibility determination regarding plea counsel's testimony is supported by the record and these findings of facts are entitled to deference. See Felkner v. Jackson, 562 U.S. 594, 597 (2011) (under the Antiterrorism and Effective Death Penalty Act (AEDPA) a trial court's determination based largely on evaluation of credibility is entitled to great deference and is sustained unless clearly erroneous) (citations and quotation marks omitted). Plea counsel made reasonable investigations, and as to not pursuing an investigation of the victim's medical records, made a reasonable decision that any further investigation regarding this issue most likely was unnecessary based on the autopsy report.

Even if trial counsel was ineffective, as Applicant suggests in the Traverse, in not pursuing the alleged irregular heartbeat issue, Applicant fails to assert how he was prejudiced by counsel's conduct. Applicant does not assert what trial counsel would have discovered if he had investigated the medical records and interviewed witnesses that would support a cause of death other than massive bleeding.

Therefore, in light of the evidence presented in the state court proceedings, the CCA's determination was reasonable. The factual findings relied on by the trial court are presumed correct in this federal habeas proceeding and are supported by the state court record. Because Applicant does not point to any clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1); Cullen, 131 S. Ct. at 1403, the Court finds that Applicant has not demonstrated a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Based on the above findings, the CCA decision regarding Applicant's irregular heartbeat claim did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This claim, therefore, lacks merit and will be dismissed.

ii. Voluntary Intoxication

In the Traverse, Applicant concedes that plea counsel's investigations regarding intoxication were sufficient. The Court, therefore, dismisses this claim. To the extent in Claim Two Applicant asserts plea counsel incorrectly told him that intoxication is not a defense to anything in his case, the CCA found as follows.

C. The Alleged Intoxication Defense

Velarde, No. 12CA2183, at 14-15.

Respondents argue Applicant fails to rebut with clear and convincing evidence the CCA's factual conclusion that he was not so intoxicated to be held responsible. Answer, ECF No. 25 at 23. Respondents further argue, relying on People v. Harlan, 8 P.3d 448, 470-71 (Colo. 2000), overruled on other grounds by People v. Miller, 113 P.3d 743 (Colo. 2005), that voluntary intoxication is not a defense to a "knowing" crime such as second degree murder, which is not a specific intent crime. Id. Given Applicant was not charged with, or pled guilty to, a crime that was a specific intent crime, Respondents further argue voluntary intoxication was not available as a defense to Applicant's crime. Id. at 24. Respondents, therefore, conclude that plea counsel's advice regarding the rejection of voluntary intoxication as a defense was correct and that counsel was not ineffective in his decision to not pursue this as a defense. Id. at 24-25.

Applicant fails to assert in either the Application or the Traverse any claim that counters Respondents' voluntary intoxication argument.

"Colorado statutes allow juries to consider evidence of a defendant's voluntary intoxication when it `is relevant to negative the existence of a specific intent if such intent is an element of the crime charged.'" People v. Lucas, 232 P.3d 155, 162 (Colo. 2009) (quoting Colo. Rev. Stat. § 18-1-804(1)). Voluntary intoxication is not an affirmative defense, and only "sets forth a rule concerning the admissibility of evidence of intoxication by the defendant to counter the prosecution's evidence that the defendant had the requisite specific intent of the charged offense." See id.

At the Rule 35(c) hearing, plea counsel testified on direct examination as follows regarding the possibility of a voluntary intoxication defense.

Velarde, No. 06CR236, Sept. 2, 2011 Rule 35(c) Hr'g at 28-32.

Plea counsel went on to testify during cross examination as follows with respect to the voluntary intoxication defense.

Id. 53-56.

Therefore, in light of the evidence presented in the state court proceedings, the CCA's determination was reasonable. Plea counsel testified that he talked with Applicant regarding the defense and told him intoxication is not a defense to a knowing crime and answered Applicant's questions. Plea counsel also testified that even if an intoxication defense was allowed the facts did not support the defense, because Applicant's description of what happened the night the victim died was too detailed to support a defense that due to being intoxicated Applicant did not know what he was doing. Applicant also concedes under cross examination that his plea attorney did discuss with him that under Colorado law that the use of alcohol is not a defense to a knowing crime. Aug. 10, 2007 Withdrawal of Plea Hr'g, at 26.

The factual findings relied on by the trial court are presumed correct in this federal habeas proceeding and are supported by the state court record. Because Applicant does not point to any clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1); Cullen, 131 S. Ct. at 1403, the Court finds that Applicant has not demonstrated a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Based on the above findings, the CCA decision regarding Applicant's voluntary intoxication claim did not result in a decision that was contrary to, or involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. This claim, therefore, lacks merit and will be dismissed.

B. Claims One, Three, and Four-Procedural Default/Martinez

In the Order for Answer, the Court refrained from addressing Claims One through Three based on the following.

Order for Answer, ECF No. 23 at 7-9.

Having received and reviewed the state court record, the Court will address Claims One, Three, and Four below pursuant to Martinez.

i. Claim One

In Claim One, Applicant asserts that his plea was unknowing and involuntary because plea counsel (1) told him that if he did not take the plea he would have to represent himself; and (2) failed to investigate that his wife died of a heart attack and not due to any alleged sexual assault. Am. Application, ECF No. 16, at 5. Applicant further asserts this claim was exhausted on direct appeal. Id. Applicant also asserts in the Traverse to Respondents' Answer, ECF No. 29, plea counsel informed him that if he went to trial he would have to pay counsel more money and based on counsel's statement he felt pressured to take the deal offered or otherwise he would be unrepresented because his family could not afford the additional fees. ECF No. 29 at 10. Applicant further asserts that plea counsel's assessment that he would never be paroled is incorrect, especially given the facts of Applicant's case and counsel's testimony that there are viable defenses to the charges Applicant was facing. Id.

Respondents contend that Claim One is procedurally barred from review pursuant to Rule 35(c)(3)(VII) because Applicant could have presented the claim in his July 2010 Rule 35(C) motion. Supp. Pre-Answer Resp., ECF No. 19, at 5-6. In his Reply to the Pre-Answer Response, Applicant contends that he is not barred from raising a second postconviction motion subsequent to the reinstatement of his direct appeal. Supp. Reply, ECF No. 20, at 2.

Applicant may be correct that a postconviction motion may be allowed subsequent to Applicant's direct appeal for constitutional deprivations that may have resulted in his direct appeal, but Applicant's claims do not address deprivations that were a result of his appeal. Applicant was granted the right to appeal the denial of his motion to withdraw his guilty plea, which he did along with the denial of his Rule 35(c) postconviction motion. See Velarde, No. 12CA2183, at 4. In his appeal he asserts the trial court's abused its discretion in denying his motion to withdraw his guilty plea. This Court has found that the CCA's opinion addresses only Applicant's coercion claim in support of his abuse of discretion claim by the trial court. Claim One in this action pertains to plea counsel's ineffectiveness, which were known by Applicant and subject to review at the time he filed the July 10 Rule 35(c) postconviction motion. A review of the Flat File in Case No. 06CR236 reveals that neither Applicant, nor postconviction counsel on Applicant's behalf, raised an ineffective assistance of plea counsel claim based on coercion in the postconviction motion. Flat File, Case No. 06CR236, at 143-151 and 177-183. This claim, therefore, has not been presented in state court and now is barred pursuant to Rule 35(c)(3)(VII).

As for finding a Martinez exception that would allow a procedural default to be waived, Applicant first must have either been unrepresented in his postconviction or subject to ineffective assistance of counsel. Applicant originally submitted pro se a Rule 35(c) postconviction motion that addresses ineffective assistance of plea counsel for failure to (1) conduct interviews with the forensic specialist who conducted the autopsy, police detectives, and deputy district attorneys; and (2) view the crime scene, other evidence, and proposed exhibits. See Flat File, July 8, 2010 Rule 35(c) Mot. (pro se), at 143-52, The pro se motion was denied in part by the district court. See id., Sept. 27, 2010 Ord., at 159-65. Postconviction Counsel then submitted an amended Rule 35(c) motion that included specifically the irregular heartbeat and voluntary intoxication claims. See id., April 27, 2011 Rule 35(c) Mot. (counseled), at 177-84. Neither pleading included a involuntary and unintelligent plea claim based on coercion by plea counsel.

Nonetheless, even if Applicant was unrepresented or subject to ineffective postconviction counsel, as required to find a Martinez exception, neither of the claims supporting the ineffective assistance of counsel claim in Claim One are substantial for the following reasons.

When a habeas applicant challenges a guilty plea based upon ineffective assistance of counsel, the deficient performance prong of the Strickland test requires proof of a lack of reasonably competent advice concerning the plea. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). An applicant must satisfy the prejudice inquiry by showing that the constitutionally ineffective performance "affected the outcome of the plea process. In other words . . . that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. Conclusory allegations without supporting factual averments are insufficient to support a claim of ineffective assistance of counsel. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

This Court has addressed Applicant's irregular heartbeat claim above and found plea counsel neither was ineffective nor was Applicant prejudiced by counsel not pursuing an investigation of this issue. As for the coercion claim, which Applicant has couched in the Amended Application, ECF No. 16 at 5, as being told he would have to represent himself if he did not enter into a plea, and in the Traverse, ECF No. 29 at 10, that plea counsel would not proceed to trial unless Applicant paid more money, the Court has reviewed the transcript of the withdrawal of plea hearing during which plea counsel and Applicant testified regarding their plea discussions. Plea counsel, on cross examination, testified as follows:

Aug. 10, 2007 Withdrawal of Plea Hr'g, at 60-65 and 71. Applicant testified as follows at the same hearing during cross, redirect, and recross examination. (cross)

Aug. 10, 2011 Withdrawal of Plea Hr'g, at 25-33 and 37-40.

Applicant based his coercion on plea counsel's continual reminder to Applicant that he could face forty-eight years if he went to trial. Applicant does not argue that plea counsel threatened him in any other way. Applicant's testimony only supports a finding that plea counsel was strongly urging him to plead guilty, which is "proper conduct of an attorney if he believes that a plea is the best course." See Nicholls v. Bigelow, 558 F. App'x 778, 786 (10th Cir. 2014) (citing Miles v. Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995).

Furthermore, when Applicant was questioned about the retainer fee on redirect, he stated plea counsel told him that if he insisted on going to trial he would need more money, he, however, also testified that he did not know details of the financial arrangements of the retainer for plea counsel. Furthermore, Applicant's father testified at the withdrawal of plea hearing that Applicant was not well informed about the details of the retainer and the $80,000 was the amount to be paid to plea counsel for all proceedings including a trial. Aug. 10, 2011 Withdrawal of Plea Hr'g, at 43-44. Plea counsel provided a sound description of the fee arrangement and nothing in Applicant's or his fathers' testimony demonstrates that plea counsel was requesting more money than the $70,000 or $80,000 that was originally agreed to for covering all proceedings including trial, which is the basis of Applicant's coercion claim.

Moreover, even Applicant's statement that plea counsel threatened to withdraw from the case if Applicant did not accept the plea agreement is insufficient to demonstrate coercion and falls under an attempted persuasion by plea counsel that entering into a plea is in Applicant's best interest. See Miles, 61 F.3d at 1470 (citing Uresti v. Lynaugh, 821 F.2d 1099, 1102 (5th Cir. 1987) (attorney's threat to withdraw from case if client did not accept plea bargain was insufficient to establish that plea was involuntary)). The Court finds no basis for a coercion claim against plea counsel.

Finally, the Tenth Circuit has noted that the "colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance. Rather, it is an important safeguard that protects defendants from incompetent counsel or misunderstandings." Fields v. Gibson, 277 F.3d 1203, 1214 (10th Cir. 2002). Further, "[n]umerous courts have denied relief under §§ 2254 and 2255 to petitioners alleging that their guilty pleas were the product of ineffective assistance, where the plea colloquies have demonstrated otherwise." Hammons v. Paskiewicz, 368 F. App'x. 904, 907 (10th Cir. 2010) (citing Fields, 277 F.3d at 1214).

The colloquy between the district court and Applicant in part is as follows:

Mar. 16, 2007 Providency Hr'g at 8-17.

Based on the above findings, neither Applicant's coercion claim nor his irregular heartbeat claim is substantial. Without such a finding, the Court need not determine whether the postconviction review proceeding was sufficient or review the merits of Claim One. Martinez, 132 S. Ct. at 1318. Claim One is procedurally defaulted and, therefore, barred from federal habeas review.

ii Claim Three

In Claim Three, Applicant asserts that plea counsel was ineffective in not advising him of the automatic sentence enhancer and incorrectly advising him that he would be parole eligible in ten to twelve years, instead of having to serve three quarters of his sentence. ECF No. 16 at 6 and ECF No. 29 at 6-7. In the Traverse, Applicant adds that plea counsel had an obligation to investigate how much time Applicant would have to serve before becoming parole eligible in order to provide him with the correct advice so he could make a decision as to whether to go to trial or enter a plea. ECF No. 29 at 7. Applicant also asserts in the Traverse, ECF No. 29 at 10, in support of Claim One that plea counsel incorrectly advised him that if he went to trial he would be subject to a life sentence without a possibility of parole, even though the facts of his case would support a viable defense.

Respondents argue that even if plea counsel misadvised Applicant on his parole eligibility date he is unable to show prejudice under Strickland in light of the case record. ECF No. 25 at 33.

Applicant concedes this claim is defaulted. See ECF No. 16 at 6, and relies on Martinez for the basis of cause for procedural default.

Applicant's assertions in support of Claim Three, however, are highly speculative. He bases his arguments on his belief that plea counsel does not state he had represented inmates who were convicted under the Colorado indeterminate sentencing act "or that [counsel] has been there when [inmates] are paroled." ECF No. 29 at 10. He further contends that the facts in his case, that he had no prior criminal history, the victim was his wife, and it was common for them to have anal sex, would have more likely than not resulted in his being paroled from a sentence subject to the indeterminate sentencing act. Id.

Applicant does not state credible assertions that would support his speculative claims regarding a viable defense and plea counsel's misadvice on Applicant's parole eligibility date. During the withdrawal of plea hearing, plea counsel testified as follows:

Aug. 10, 2007 Withdrawal of Plea Hr'g at 67-68.

Applicant does not deny that he was charged with first degree murder and sexual assault. He also does not deny that the sentence for first degree murder is life in prison and for sexual assault a possibility of an indeterminate prison sentence up to life in prison. Faced with a life sentence if convicted of murder or an indeterminate sentence if convicted of sexual assault with the possibility of parole it is highly unlikely that Applicant would have opted to go to trial even if he had known that his parole eligibility would be from ten to fifteen years more than what plea counsel allegedly told him it would be.

Furthermore, even though "gross misadvice about parole eligibility can render legal assistance ineffective and invalidate a plea," see Chrisman v. Mullins, 213 F. App'x 683, 688 (10th Cir. 2007) (finding an 85% requirement of sentence served before parole eligible) (citing Beavers v. Saffle, 216 F.3d 918, 925 (10th Cir.2000)); see also Hill, 474 U.S. at 56-57, the Sixth Amendment does not encompass those aspects of the prosecution which are collateral, see Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992) (holding that counsel's failure to advise alien client that deportation was a possible collateral consequence of guilty plea did not amount to ineffective assistance of counsel). Restrictions on parole eligibility involve "collateral" consequences of a nolo contendere plea. See Holmes v. United States, 876 F.2d 1545, 1549 (11th Cir. 1989); see also Hill, 731 F.2d at 570) ("[t]he details of parole eligibility are considered collateral rather than direct consequences of a plea") (citations omitted). Any failure to inform Applicant of consequences collateral to a plea, such as having to serve 75% of a sentence before being parole eligible, does not render the plea involuntary, does not implicate the Sixth Amendment, and, therefore, cannot be the grounds for a viable ineffective-assistance-of-counsel claim. See Hill, 474 U.S. at 55 (failure to inform a defendant at a plea hearing of the terms of parole eligibility is not a federal constitution violation); see also Perkis v. Sirmons, 201 F. App'x. 648, 652 (10th Cir. 2006) (state court's failure to inform defendant that "he would be ineligible for parole prior to serving 85% of his sentence" was merely a failure to inform petitioner about a collateral consequence of the plea and does not invalidate a plea agreement).

Based on the above findings, neither Applicant's parole eligibility claim nor his viable defense claim is substantial. Without such a finding, the Court need not determine whether the postconviction review proceeding was sufficient or review the merits of Claim Three. Martinez, 132 S. Ct. at 1318. Claim Three is procedurally defaulted and, therefore, barred from federal habeas review.

iii. Claim Four

In Claim Four, Applicant asserts that counsel was ineffective because he failed to seek suppression of the statements Applicant made to the police, even though counsel knew that Applicant had requested counsel and the police continued to question him. ECF No. at 16 at 7. Applicant does not address Claim Four in his Traverse.

Respondents argue that plea counsel filed two motions to suppress Applicant's police statements, ECF No. 25 at 36. Respondents further contend that plea counsel postponed the hearing on these motions until after plea negotiations were finished in an attempt to negotiate a better plea and that Applicant knew at the providency hearing that the motions were pending, yet he expressly indicated he was satisfied with counsel performance. Id. at 37.

Upon review of the Flat File, Case No. 06CR236, at 49 and 51, the Court finds a motion to suppress statements made by Applicant at the El Paso County Jail and an assertion of privilege regarding these statements was filed by counsel. Both motions were filed on November 27, 2006, along with at least eight to ten other motions. Subsequently, on December 15, 2013, the motions were continued at plea counsel's request, see ECF No. 9-1 at 21, and a request to plead guilty, Flat File at 96, entered on March 16, 2007. At the Rule 35(c) hearing, plea counsel testified as follows:

Sept. 2, 2011 Rule 35(c) Hr'g at 12-14.

Contrary to Applicant's argument, plea counsel did file motions to suppress Applicant's statements. It also is not clear, as Applicant suggests, that he was not represented by counsel when he made the statements to the police. See Aug. 10, 2007 Withdrawal of Plea hr'g at 56-57. Finally, plea counsel's decision to continue a hearing on the suppression issue is no more than a strategy decision and has a presumption of effectiveness. See Strickland, 466 U.S. at 689 (Applicant has burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances.); Rushin, 642 F.3d at 1307 (Applicant has burden to prove that the errors were so serious that "counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.") (citations and internal quotations omitted).

Based on the above findings, Applicant's suppression claim is not substantial. Without such a finding, the Court need not determine whether the postconviction review proceeding was sufficient or review the merits of Claim Four. Martinez, 132 S. Ct. at 1318. Claim Four is procedurally defaulted and, therefore, barred from federal habeas review.

V. ORDERS

Based on the above findings, it is

ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 16, is DISMISSED WITH PREJUDICE. It is

FURTHER ORDERED that the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(a) is denied. Applicant has not made a substantial showing of the denial of a constitutional right such that reasonable jurists could disagree as to the disposition of his petition pursuant to the standards of Slack v. McDaniel, 529 U.S. 473, 484 (2000). See 28 U.S.C. § 2253(c)(2). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.