ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

KATHLEEN M. TAFOYA, Magistrate Judge.

This case is before this Court pursuant to the Order of Reference entered March 11, 2015, and the parties' unanimous consent to disposition of this action by a United States Magistrate Judge.

Applicant Dane S. Newton is a prisoner in the custody of the Colorado Department of Corrections. Mr. Newton has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) ("the Application") challenging the validity of his conviction and sentence in Douglas County District Court case number 07CR434. Respondents have filed an Answer (ECF No. 27) ("the Answer") and Mr. Newton has filed a Reply Brief (ECF No. 34) ("the Traverse"). After reviewing the record, including the Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.

I. BACKGROUND

The Colorado Court of Appeals described the relevant factual and procedural background as follows:

People v. Newton, No. 13CA0567, slip op. at 1-2 (Colo. App. July 17, 2014) (ECF No. 27-1 at 2-3). The trial court's order denying the Rule 35(c) motion was affirmed on appeal. (See id.) Mr. Newton did not seek certiorari review in the Colorado Supreme Court in the postconviction proceedings in a timely manner. (See ECF No. 13-15.)

The Application was filed on November 3, 2014. Mr. Newton raises the following seven claims for relief in the Application: (1) the trial court's failure to investigate pretrial allegations of a conflict with counsel resulted a denial of Mr. Newton's right to conflict-free counsel; (2) trial counsel was ineffective by making Mr. Newton waive his right to a speedy trial; (3) trial counsel was ineffective by failing to advise him properly regarding the difference between an Alford plea and a regular plea agreement; (4) trial counsel was ineffective by failing to provide a timely alibi witness notice, and the trial court abused its discretion in not allowing the alibi witnesses to testify; (5) trial counsel was ineffective by failing to object to the prosecution's improper comment during closing argument about Mr. Newton's silence; (6) trial counsel was ineffective by failing to object to false information in the presentence investigation report; (7) counsel on direct appeal was ineffective by failing to raise the conflict issue. The Court previously entered an Order to Dismiss in Part (ECF No. 21) dismissing claims 1, 4, and 7 as unexhausted and procedurally barred. As a result, only claims 2, 3, 5, and 6 remain to be considered on the merits.

II. STANDARDS OF REVIEW

The Court must construe the Application and other papers filed by Mr. Newton 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. Newton 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 Mr. Newton 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 under § 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,

Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation 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. at 102. 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, 562 U.S. at 102 (stating "that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").

Richter, 562 U.S. at 103.

The Court reviews claims of factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows 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 Mr. Newton 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. Brecht, 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).

III. MERITS OF APPLICANT'S REMAINING CLAIMS

It was clearly established when Mr. Newton 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 counsel was ineffective Mr. Newton 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. Newton'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).

Under the prejudice prong Mr. Newton 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, 562 U.S. at 112 (stating that "[t]he likelihood of a different result must be substantial, not just conceivable."). In determining whether Mr. Newton has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Mr. Newton. See Boyd, 179 F.3d at 914.

If Mr. Newton fails to satisfy either prong of the Strickland test, the ineffective assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697. Furthermore, 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). Finally, "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).

A. Claim 2

Mr. Newton contends in claim 2 that trial counsel was ineffective by making him waive his right to a speedy trial and agree to be tried one day past the speedy trial deadline. Mr. Newton asserts that he agreed to waive his right to a speedy trial for one day because counsel told him she had not received pertinent video evidence from the prosecution in a timely manner. However, Mr. Newton later discovered that trial counsel actually received the video evidence in question more than three months earlier. According to Mr. Newton, it was trial counsel's lack of planning rather than a discovery defect that caused him to waive his right to a speedy trial.

The Colorado Court of Appeals applied the two-part Strickland test and reasoned as follows in rejecting this ineffective assistance of counsel claim:

(ECF No. 27-1 at 13-16.)

Mr. Newton does not argue that the state court's decision was contrary to Strickland. In other words, 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.

Mr. Newton also fails to demonstrate that the state court's decision rejecting this ineffective assistance of counsel claim was an unreasonable application of Strickland. Mr. Newton specifically argues that counsel's stated reason for seeking a continuance that led to the one-day waiver of his right to a speedy trial was disingenuous. However, he does not address the state court's determination that he failed to allege facts that demonstrate prejudice under Strickland.

The Court concludes that Mr. Newton is not entitled to habeas relief with respect to claim 2 because he fails to demonstrate the state court's ruling regarding the absence of prejudice was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. It was not unreasonable for the state court to conclude Mr. Newton was not prejudiced by his reliance on counsel's recommendation to waive his right to a speedy trial for one day because he fails to demonstrate the result of the proceeding would have been different if he did not waive his right to a speedy trial.

B. Claim 3

Mr. Newton contends in claim 3 that trial counsel was ineffective by failing to advise him properly regarding the difference between a regular plea agreement and a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Mr. Newton alleges in support of claim 3 that the trial court refused to accept his guilty plea on the first day of trial, which included a stipulated sentence of thirteen years in prison, because he insisted he was not guilty. According to Mr. Newton, the plea agreement could have been designated an Alford plea and "[t]his lack of advisement and improper negotiation with [the] prosecution led to an extremely adverse consequence as [Mr. Newton] received a 36[-]year prison sentence, designated `violent', instead of the 13[-]year sentence he would have received." (ECF No. 1 at 8-9.)

The Colorado Court of Appeals applied the two-part Strickland test and rejected this ineffective assistance of counsel claim because Mr. Newton failed to demonstrate prejudice.

(ECF No. 27-1 at 16-19.)

Mr. Newton does not specifically address the merits of claim 3 in the Traverse and he fails to demonstrate the state court's decision was contrary to or an unreasonable application of Strickland. 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 the state court's ruling regarding the absence of prejudice was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. In particular, he fails to demonstrate or even allege that the prosecution would have agreed to an Alford plea and, based on the trial court's statement that it does not accept guilty pleas from defendants who maintain their innocence, there is a clear indication that the trial court would not have accepted an Alford plea. Therefore, Mr. Newton is not entitled to relief with respect to claim 3.

C. Claim 5

Mr. Newton contends in claim 5 that trial counsel was ineffective by failing to object to an improper comment made by the prosecutor during closing argument. According to Mr. Newton, the prosecution told the jury during closing argument that "Defendant has nothing to say to you." (ECF No. 1 at 10.) He maintains that "[b]y referencing [Mr. Newton's] choice not to testify in a manner that could be construed as [his] lack of defense to these charges, [the] prosecution . . . stripped [Mr. Newton] of his constitutional right by implying that an exercise of that right may be an indication of guilt." (Id.)

The Colorado Court of Appeals rejected this ineffective assistance of counsel claim because Mr. Newton failed to demonstrate counsel was ineffective under Strickland.

(ECF No. 27-1 at 20.)

Mr. Newton does not specifically address the merits of claim 5 in the Traverse and he fails to demonstrate the state court's decision was contrary to or an unreasonable application of Strickland. Most importantly, he fails to address the factual determination by the state courts that the prosecution did not make the challenged statement. The Court presumes this factual determination is correct and Mr. Newton bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

Although Mr. Newton asserts in the Application that the prosecution commented on his silence during closing argument, he does not present clear and convincing evidence to overcome the presumption of correctness. Furthermore, the Court's review of the transcript of Mr. Newton's trial confirms that the state court's factual determination regarding the prosecution's actual statement is correct. That is, rather than stating during closing argument that "Defendant has nothing to say to you" as Mr. Newton asserts, the transcript demonstrates the prosecution actually stated "the defense does not have to say anything to you." Counsel was not ineffective by failing to object to this statement, which, as the state court noted, is a correct statement of law. Therefore, Mr. Newton is not entitled to relief with respect to claim 5.

D. Claim 6

Mr. Newton contends in claim 6 that trial counsel was ineffective by failing to object to false information in the presentence investigation report. The allegedly false information relates to two prior criminal charges against Mr. Newton in the State of California, one for corporal injury on a spouse and one for assault with a firearm on a person. Mr. Newton contends that "[t]hese charges are very prejudicial on their face" and "may have played a very serious role in the trial judge sentencing him to such a harsh punishment." (ECF No. 1 at 11.) Mr. Newton apparently also argued in state court that the presentence investigation report falsely indicated these charges resulted in convictions even though the first charge was dismissed for lack of probable cause and the second charge was never an official charge because he cooperated with police detectives and no wrongdoing was found.

The Colorado Court of Appeals addressed this claim as follows:

(ECF No. 27-1 at 20-23.)

Mr. Newton does not specifically address the merits of claim 6 in the Traverse. He apparently does not dispute the state court's factual determination that the pre-sentence investigation report did not indicate he was convicted of the prior offenses in question. In any event, he does not present clear and convincing evidence to overcome the presumption of correctness that attaches to that factual determination. See 28 U.S.C. § 2254(e)(1). Thus, the Court presumes there was no indication in the presentence investigation report that Mr. Newton was convicted of the prior charges.

Mr. Newton also fails to demonstrate the state court's decision was contrary to Strickland. 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.

Finally, Mr. Newton fails to demonstrate the state court's ruling regarding the absence of prejudice was an unreasonable application of Strickland. The transcript of the sentencing hearing makes clear that the trial court at sentencing relied primarily on the violent nature of the crime and its lasting effects on the victim. The trial court did refer briefly to Mr. Newton's past criminal record, but highlighted only a prior felony conviction for tampering with the identification marks on a firearm and the fact that Mr. Newton twice violated his parole in that prior felony case. The trial court did not even mention the prior charges that provide the factual basis for claim 5 in the Application.

Under these circumstances, Mr. Newton cannot demonstrate a reasonable probability that he would have received a reduced sentence if counsel had challenged the contents of the presentence investigation report. In short, Mr. Newton fails to demonstrate the state court's prejudice determination was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103. Therefore, Mr. Newton also is not entitled to relief with respect to claim 6.

V. CONCLUSION

In summary, the Court finds that Mr. Newton is not entitled to relief on his remaining claims. Accordingly, it is

ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is denied and this case is dismissed with prejudice. It is further

ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c).