WILLIAM J. MARTíNEZ, District Judge.
This matter is before the Court on Applicant Marlon L. Smith's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application"), ECF No. 1.
Applicant is challenging the validity of his conviction and sentence in State of Colorado Criminal Case No. 02CR3477. The evidence at trial indicated that Applicant barged into a home where his estranged wife was staying; where he shot and killed his wife and wounded two other occupants of the home. See People v. Smith, No. 03CA1273, 1 (Colo. App. Feb. 10, 2005) (direct appeal). The procedural background of Applicant's criminal case was summarized in the Colorado Court of Appeals' (CCA's) opinion addressing his Colo. R. Crim. P. 35(c) postconviction motion as follows.
People v. Smith, No. 10CA0098 (Colo. App. July 5, 2012). The Colorado Supreme Court (CSC) denied Applicant's petition for certiorari review of the Rule 35 motion on October 7, 2013. See Smith v. People, No. 2012SC618 (Colo. Oct. 7, 2013).
Applicant asserts twelve claims in the Application. Claim Eleven has three subparts. The Court conducted a preliminary review of the twelve claims and dismissed Claims Two and Four, and Claim Eleven, as it pertains to forensic evaluations. ECF No. 31 at 14. The Court deferred ruling on the Martinez v. Ryan, ___ U.S.___, 132 S.Ct. 1309 (2012) issue in Claim Twelve, until the Court had the opportunity to review the state court record. The remaining claims are as follows.
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 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 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) (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 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) (citations and 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. 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 asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct and Applicant bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
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). "In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Davis v. Ayala, 576 U.S. ___, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
Furthermore, a claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Richter, 562 U.S. at 98. In particular, "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Id. (collecting cases). Thus, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. "Where there has been one reasoned state judgment rejecting a federal claim," federal habeas courts should presume that "later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion fairly appear[s] to rest primarily upon federal law." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (citation and internal quotation marks omitted) (supported in Hittson v. Chatman, ___ U.S. ___, 135 S.Ct. 2126, 2127 (June 15, 2015) (Ginsburg, J., concurring in denial of certiorari review).
Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
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).
Prior to discussing the merits of each claim. The Court will address the Martinez issue in Claim Twelve.
In the Order for Answer, ECF No. 31, in this case, the Court stated as follows.
In Martinez, the Supreme Court held:
Mar. 3, 2015 Order for Answer, ECF No. 31 at 12-14.
Applicant asserts in the Application and in his Reply to the Pre-Answer Response, that Claim Twelve is subject to a waiver of procedural default pursuant to Martinez because the postconviction counsel failed to raise an ineffective assistance of trial counsel claim regarding trial counsel's failure to present to the trial court or to Applicant, either prior to or during the trial, the results of Applicant's mental health examination, which was performed at the request of Applicant's trial counsel. ECF No. 1 at 32; ECF No. 16 at 9.
In the Pre-Answer Response, ECF No. 11, Respondents assert that Claim Twelve is procedurally defaulted because the claim was not raised in any state court and now any attempt to litigate this claim is procedurally barred under Colorado state law pursuant to Colo. R. Crim. P. 35(c)(VII), but they do not address whether the claim is substantial or has merit. In the Answer, Respondents argue that this claim should be dismissed as unexhausted because Applicant failed to raise the claim in any state postconviction proceeding and Colorado law allows collateral review of allegations of ineffective assistance of postconviction counsel. ECF No. 37 at 62. In the alternative, Respondents argue this claim lacks merit because Applicant stated on the record that he did not suffer from mental health issues and the mental health examination Applicant relies on is not part of the state court record. Id. at 63-64.
In his Traverse, Applicant asserts that he was not competent at trial. ECF No. 47 at 29. He further contends, even though his postconviction counsel found a psychological evaluation that was ordered by the trial court and showed Applicant was incompetent to stand trial, postconviction counsel refused to raise the mental health issue in the postconviction proceeding. Id. Applicant contends that his trial should have been delayed until he was competent and proceeding with the trial violated his due process rights. Id.
Applicant's assertions in support of Claim Twelve are highly speculative. He bases his arguments on a psychological evaluation that he claims he is only "vaguely aware" of; and he further contends that the evaluation should be available because it was ordered by the court or obtained alternatively from either trial or postconviction counsel. ECF No, 47 at 29.
The Court has reviewed the State Court Record in Criminal Case No. 02CR3477. CD Court (Flat) File & File Folder Transcripts, ECF No. 38. In reviewing the transcript of a conflict hearing held on October 10, 2002, Applicant stated the following regarding his mental health at that time.
Case No. 02CR3477, Oct. 10, 2002 Conflict Hr'g Tr. at 4-6.
Applicant also testified at his Rule 35(c) hearing that he had reviewed his motion and trial transcripts, "and all that type stuff," twenty to thirty times and had been researching his case during the seven years he had been incarcerated after his trial. Case No. 02CR3477, Nov. 23, 2009 Rule 35(c) Hr'g at 10-11. Applicant further testified that he had "motions — everything that has to do with [his] case . . . [e]verything." Id. at 12.
Applicant originally stated in the Application and his Reply to the Pre-Answer that trial counsel ordered the evaluation, and neither he nor the court were aware of the results, ECF No. 1 at 32; but in his Traverse he contends the trial court ordered the evaluation, ECF No. 47 at 29.
Based on Applicant's acclaimed thorough review of everything related to his criminal trial, he should be able to identify with some accuracy where in the state court record such a court directive for an evaluation would be found. But, he has not done so. Upon review of the Court File and all transcripts of the proceedings in Applicant's state criminal case, the Court finds nothing regarding mental health issues other than the October 10, 2002 conflict hearing, where Applicant stated clearly that he did not have any mental health problems. There is no directive on the record by the trial court for a mental evaluation or any reason identified by the court or trial counsel during the pretrial or the trial that a mental evaluation was necessary.
Based on the above findings, Applicant's claim lacks merit and does not meet the substantial requirement set forth in Martinez. Without such a finding, the Court need not determine whether the postconviction review proceeding was sufficient or review the merits of Claim Twelve. Martinez, 132 S. Ct. at 1318. Claim Twelve is procedurally defaulted and, therefore, barred from federal habeas review.
In Claim One, Applicant asserts that the photo identification procedure used by the police was suggestive. ECF No. 1 at 7. Applicant further asserts that the trial court erred by refusing to suppress the identifications in violation of his due process rights. Id.
Specifically, Applicant contends that Mr. Roberto Gutierrez and Ms. Esther Sanchez identified Applicant as the suspect within a few hours of the shooting, while they were in the same room at the hospital and were only shown faces of a six-person photo array. Id. Applicant further contends that before Mr. Gutierrez viewed the array he described the suspect as a black male who had two braids and he acknowledged that during the shooting he heard Ms. Sanchez refer to the suspect as "Uncle Marlon." Id. Applicant concludes Mr. Gutierrez had a "preconception" of the suspect's age because Ms. Sanchez, who was seventeen, referred to Applicant as an uncle, making the suspect a generation older than she is; and as a result the photo array was reduced to only three possible individuals (a suggestive lineup as a matter of law) because the other three looked too young to be Ms. Sanchez's uncle. Id. at 8.
Applicant further contends that Ms. Sanchez selected the same photo of Applicant in the photo array, as Mr. Gutierrez, only moments after Mr. Gutierrez had made his selection. Id. at 7. Applicant also contends that Mr. Gutierrez and Ms. Sanchez discussed their selections in violation of the police officer's directive not to do so. Id.
Finally, with respect to Tabitha White, another person who identified Applicant in the photo array, Applicant contends that she was asked to view the same photo array as Mr. Gutierrez and Ms. Sanchez, even though she had not given a previous statement indicating any recollection of the suspect's physical appearance. Id. Applicant further contends that before Ms. White viewed the photo array and identified Applicant she was coached by family members and was then able to identify Applicant in the array. Id. at 8.
People v. Smith, 03CA1273, 2-4 (Colo. App. Feb. 10, 2005). Applicant raised the same issues in his opening brief on direct appeal, see Pre-Answer Resp., Ex. B (Opening Brief), ECF No. 11-2 at 11-14, as he has stated in support of Claim One in this action. The CCA addressed only with any specificity the age issue and referred to only two witnesses who participated in a photo identification. The CCA, however, affirmed overall the trial court's determination that the lineup was not unduly suggestive and found no need, therefore, to inquire whether the identifications were nevertheless reliable under the totality of the circumstances.
Pursuant to the pretrial court hearing, held on January 2 and 6, 2003, the trial court entered an order on January 9, 2003, that addressed the findings of the pretrial hearing as follows.
Smith, No. 02CR3477, Court File, at 135-141.
The federal habeas court presumes a later unexplained order upholding a judgment or rejecting the same claim by an earlier reasoned state judgment will be found to rest on the same ground. Ylst, 501 U.S. at 804. The Court, therefore, will uphold the CCA's summary decision regarding the claims not specifically addressed by the CCA unless an independent review of the record and pertinent federal law is persuading that the state court's 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. Aycox, 196 F.3d at 1178.
"[D]ue process concerns arise only when law enforcement officers use an identification procedure that is both suggestive and unnecessary. . . . Even when the police use such a procedure, . . . suppression of the resulting identification is not the inevitable consequence." Perry v. New Hampshire, — U.S. —, 132 S.Ct. 716, 718 (2012) (internal citations omitted). When the constitutionality of a photographic array is challenged, the Due Process Clause mandates a two-pronged inquiry: first, it must be determined whether the array was impermissibly suggestive, and if so, second, it must be determined whether the identifications were nevertheless reliable in view of the totality of the circumstances. See Simmons v. United States, 390 U.S. 377, 384 (1968); Johnston v. Makowski, 823 F.2d 387, 391 (10th Cir. 1987). These two prongs must be analyzed separately, and only if it is determined that the array was impermissibly suggestive is it necessary to reach the second prong of the test. Johnston, 823 F.2d at 391.
If a reviewing court concludes that the identification procedure was unnecessarily suggestive and that the identification was not reliable under the totality of the circumstances, the court evaluates the erroneous admission under harmless error. See, e.g., Biggers v. Tennessee, 390 U.S. 404, 408-09 (1968). The constitutionality of identification procedures is a mixed question of law and fact. Archuleta v. Kerby, 864 F.2d 709, 710-11 (10th Cir. 1989).
In Simmons, the Supreme Court held that "convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons, 390 U.S. at 384. To determine whether a pretrial identification was impermissibly suggestive, "courts use a number of factors . . ., including the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves." United States v. Sanchez, 24 F.3d 1259, 1262 (10th Cir. 1994) (citation omitted).
A defendant has the initial burden of proving that the identification procedure was impermissibly suggestive. See United States v. Wade, 388 U.S. 218, 240 n. 31 (1967); English v. Cody, 241 F.3d 1279, 1282-83 (10th Cir. 2001). It is only after the defendant meets this burden that the burden shifts to the government to prove by clear and convincing evidence that the identification was reliably independent of the suggestive procedure. Id. Absent a finding of a substantial likelihood of irreparable misidentification, the evidence set forth regarding the lineup is for the jury to weigh. Manson v. Brathwaite, 432 U.S. 98, 116, (1977). "Evidence with some element of untrustworthiness is customary grist for the jury mill." Id.
The factors to consider whether identification testimony is admissible include "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Id. at 114. These factors are weighed against the corrupting effect of the suggestive identification. Id.
Based on the above trial court findings and the Court's own review of the transcripts for the hearing, the photo identifications were not impermissibly suggestive. In the January 9, 2003 order, the trial court addressed the size of the array, the manner of its presentation by the officers, and the details of the photographs themselves. The trial court found that the photo array (1) was of black men of similar size and shape, complexion and of similar hair length; (2) appeared to be uniform as to background; (3) showed similar facial hair and no tattoos, jewelry or writing; and (4) had no stark contrasts that would effectively make Applicant's photo "jump out" at the viewer. As for the complexion issue, the trial court found that it had been held that a Lineup is not impermissibly suggestive where participant's complexions fit within a general description of the perpetrator. Finally, the CCA addressed the age concern, even though this issue was not at issue before the trial court, and found that to the extent the photographs suggest different ages, Applicant appeared to be one of the younger men, and the lineup could not be unduly suggestive in the way that Applicant contends.
Even if this Court were to find, as Applicant's trial counsel suggested, that the skin tones, hair, and complexion were so different that Applicant's photo "jumps right out from all the other photographs almost immediately," see Smith, No. 02CR3477, Jan. 7, 2003 Pretrial Hr'g at 120-21 (CD Numbering 5-6, as numbered on compact disc by Respondents), and the photo array is impermissibly suggestive, the identifications were nevertheless reliable in view of the totality of the circumstances.
First, each of the witnesses testified to the amount of light in the room at the time of the shooting, which indicated there was sufficient ability by each witness to see Applicant. Id., Jan. 6, 2003 Pretrial Hr'g Tr. at 8-9, 30-31, and 54-56. Second, each witness provided sufficient detail as to the incident regarding (1) the individuals in the room; (2) the arrangement of people and furniture in the room; (3) the actions of the shooter and who he shot; (4) the ability to see the shooter; and (5) the description of the shooter (included other than just the face, which is all that was presented in the photo array). Id. at 8, 10, 12-13, 30-35, and 54-56.
Each witness was very sure applicant was the assailant when they were presented with the photo lineup and identified him either within a few hours or two days of the shooting. Id. at 15, 40, 79, 81, and 84. Finally, two of the witnesses provided descriptive identifications of applicant during the pretrial hearing that were not disclaimed by Applicant as being contradictory to any previous description or nondescriptive of Applicant; and one of the witnesses testified to knowing Applicant prior to the incident and to asking him at the time of the incident not to shoot the victim. Id. at 13, 32, and 55.
Based on the pretrial hearing testimony, by each of the three eyewitness, the identifications given were independently reliable. The Court, therefore, finds that the state court's decision regarding the suggestiveness of the photo lineups was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court or a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Claim One, therefore, lacks merit, and Applicant is not entitled to relief.
In this claim, Applicant asserts that the judge ruled the prosecution could not introduce evidence regarding Applicant's alleged act that prior to the shooting he broke the victim's arm. ECF No. 1 at 14. During prosecution's direct examination of Diane (Angela) Sanchez at trial, she stated twice that Applicant had broken the victim's arm prior to the shooting, id., the second time was after she had been instructed not to mention the arm breaking, id. Applicant contends that the trial court denied defense counsel's motion for mistrial and found the testimony concerning the broken arm was not intentionally educed by the prosecution and a jury instruction was sufficient to remedy any error. Id. At 14-15. Applicant further contends that the jury could not have reached its verdict without Ms. Sanchez's inflammatory testimony, which was "in tandem with pseudo-expert testimony concerning the propensity of offenders to violate restraining orders and escalate their level of violence." Id. at 15. Applicant concludes that the highly prejudicial effects of Ms. Sanchez's statements could not be overcome by a jury instruction and he is entitled to a new and fair trial. Id. at 16.
In addressing this claim, the CCA found as follows.
Shortly thereafter, the witness again referred to the broken arm:
Defense counsel again requested a mistrial. The court again denied this request. It ruled:
The court instructed the jury as follows:
People of the State of Colo. v. Smith, No. 03CA1273, 3-5 (Colo. App. Feb. 10, 2005).
"To establish a constitutional violation from improper admission of testimony, the testimony must have been so prejudicial in the context of the proceedings as a whole as to deprive the defendant of the fundamental fairness essential to the concept of due process." Saavdera v. Thomas, 132 F.3d 43, *3 (10th Cir. Dec. 12, 1997) (unpublished) (citing Nichols v. Sullivan, 867 F.2d 1250, 1253-54 (10th Cir. 1989)).
During Ms. Diana Sanchez's testimony and Ms. Ester Sanchez's testimony the court gave a limiting instruction to the jury as follows:
No. 02CR3477, Mar. 5, 2003 Jury Trial Tr. at 806 and 760 (285 and 239).
When Ms. Sanchez testified the victim told her that Applicant had broken her arm, she also testified that three weeks prior to the shooting the victim told her that Applicant was being mean to her, which was admissible testimony. Mar. 5, 2003 Jury Trial Tr., at 808-09 (287-88). Ms. Sanchez further stated the victim told her, while living at Ms. Sanchez's home, that she wanted to move out from where she lived with Applicant, id. at 809 (288), because Applicant was not as good as others thought, id. at 810 (289). Ms. Sanchez further testified that the victim was upset when she told her about Applicant and that she felt safe at Ms. Sanchez's house. Id.
Ms. Sanchez also testified that that about a week or two before the shooting Applicant came to her house and threatened the victim that "if she didn't stop her shit, he was going to kill her." Id. at 811 (290). Ms. Sanchez described Applicant as angry and stated that the victim had not "called him or anything." Id. Ms. Sanchez also testified she saw the restraining order that the victim had against Applicant. Id. at 812 (291). Ms. Sanchez further testified that TESSA (a domestic violence and sexual assault agency in Denver, Mar. 6, 2003 Jury Trial Tr., at 893, testimony of Jennifer Bier, TESSA Director of Clinical Services at time of trial), wanted the victim to go to a "safe house." Id. at 814 (293) (34).
Ester Sanchez also testified that on one occasion prior to the shooting and while the victim was living at Ester's home, Applicant approached the victim, while she, the victim, and other members of her family were sitting in the back yard of her home, and raised his hand to hit the victim, but Ester jumped in front of the victim. Mar. 5, 2003 jury Trial Tr. at 764 (243). Ester further testified that at this time Applicant told the victim he was going to kill her because she was "messing up a contract." Id.
Based on Diana Sanchez's testimony and Ester Sanchez's testimony regarding other incidents that were properly before the jury to consider intent, motive or absence of mistake, and the eye-witness identification of Applicant as the assailant by at least three individuals, as addressed above, the two references by Diana Sanchez to a broken arm were not so prejudicial in the context of the proceedings as a whole as to deprive the defendant of the fundamental fairness essential to the concept of due process. The Court, therefore, finds that the state court's decision to deny a mistrial and provide an instruction to the jury to disregard the statement about the broken arm, was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court or a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Claim Three, therefore, lacks merit, and Applicant is not entitled to relief.
In this claim, Applicant asserts that the trial court denied his motion to exclude his prior convictions for the purpose of felony impeachment based on an inapplicable time-bar statute. ECF No. 1 at 18. Applicant contends the use of the limitations statute is only applicable to a collateral attack of a judgment and it does not serve to bar him from suppressing the government's collateral use of a prior unconstitutional conviction in a new proceeding. Id.
The CCA addressed this claim as follows.
Smith, No. 03CA1273, 8-9.
"It is well established that states may place reasonable time limitations on the assertion of federal rights." Lankford v. Novac, 7 F. App'x 867, 868 (10th Cir. 2001) (citing Francis v. Henderson, 425 U.S. 536, 540-41 (1976)). In Marquez v. Furlong, 60 F.3d 837 (10th Cir. July 7, 1995) (unpublished), the Tenth Circuit affirmed the District of Colorado's finding that an applicant had failed to demonstrate a violation of a federal right when he asserted a due process violation based on the trial court's pretrial denial of his untimely challenge of prior convictions. The Tenth Circuit referred to the Wiedemer finding that the collateral-attack time limits in § 16-5-402 are reasonable and subject to exception for justifiable excuse, thus § 16-5-402 does not violate the Fourteenth Amendment Due Process Clause. Id. at 1. The Tenth Circuit found no basis for reversing the District of Colorado's decision upholding the CCA's reliance on Wiedemer.
It also is well established that the denial of due process in a state criminal trial "is the failure to observe that fundamental fairness essential to the very concept of justice." Lisenba v. California, 314 U.S. 219, 236 (1941). In order to declare a denial of due process, the Court must find that "the absence of that fairness fatally infected the trial." Id.; see also Tapia v. Tansy, 926 F.2d 1554, 1557 (10th Cir. 1991) (due process claims entitle applicant to relief only if the alleged errors rendered the trial as a whole fundamentally unfair).
The trial court did not categorically deny Applicant's motion to exclude. Defense counsel argued justifiable excuse, as discussed below, and sought and was granted alternate defense counsel to review the constitutionality and time bar issues raised regarding the prior convictions. The state court's decision to deny Applicant's motion to exclude prior convictions because the motion was subject to the three-year limitation under Colo. Rev. Stat. § 16.5-402, therefore, was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court, or a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Claim Five, therefore, lacks merit, and Applicant is not entitled to relief.
In Claim Six, Applicant argues that the trial court violated his due process and impermissibly burdened his constitutional rights to testify by failing to conduct a Wiedemer analysis of whether a justifiable excuse existed to challenge the constitutionality of the prior convictions even though Applicant was barred by the three-year time limitation under Colo. Rev. Stat. § 14-5-402. ECF No. 1 at 19-21. Applicant contends that the trial judge should have considered (1) outside influences prevented a timely challenge to the prior convictions; (2) if he had reason to question the constitutionality of a conviction investigated the validity and took advantage of available avenues of relief; (3) if he knew or had reason to believe a conviction was constitutionally infirm; (4) if he had other means of preventing the government's use of the prior conviction so a challenge was unnecessary; (5) the length of time that had elapsed between the date of conviction and his challenge; and (6) the effect that such a period had on the state's ability to defend against the challenge. Id.
Smith, No. 03CA1272 at 9-10.
Trial counsel did assert in the motion to exclude the prior felony convictions that the delay in challenging these convictions was due to excusable neglect, and any time bar is not applicable. No. 02CR3477, Court File at 129-30 (118-19). During the pretrial hearing held on January 7, 2003, trial counsel argued that in one of the prior convictions (1981 conviction) counsel was ineffective in failing to inform applicant of his right to collaterally attack and that in the other prior conviction (1995 conviction) a collateral attack is not time-barred. January 7, 2003 Pretrial Hr'g at 140-41 (25-26). On January 9, 2003, the trial court ordered appointment of an alternate defense counsel to review the prior convictions with respect to the constitutionality and time bar issues raised, but denied the motion to exclude the use of prior felony convictions. No. 02CR3477, Court File, at 152-53 (141-42). At a pretrial hearing on February 21, 2003, alternative defense counsel reported he had nothing to add to trial counsel's argument regarding the collateral attack of the prior convictions, but after talking with Applicant would inform the Court if his findings were otherwise. Feb. 21, 2003 Pretrial Hr'g at 2.
During the trial in answer to defense counsel's question regarding further information on the motion to exclude prior felonies, the trial judge stated that he had not received any further information from alternate defense counsel. Mar. 10, 2003 Trial Tr. at 1403 (216).
"Whether a defendant has demonstrated `justifiable excuse or excusable neglect' is a factual matter determined in accordance with state law, specifically the standards in Wiedemer, 852 P.2d at 441-42, and People v. Heitzman, 852 P.2d 443, 447-48 (Colo. 1993)." Lankford, 7 F. App'x at 868. Also, as stated above, it is well established that states may place reasonable time limitations on the assertion of federal rights. Id.
In a § 2254 proceeding a determination of a factual issue made by a State court is presumed to be correct and an applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Applicant sets forth the factors considered in Wiedemer but fails to assert how the trial court disregarded the factors based on trial counsel's arguments. The trial court even appointed alternate defense counsel to further address the motion to exclude prior convictions, but alternate counsel had nothing to add to trial counsel's argument.
Applicant is required to make a sufficient showing of excusable neglect to qualify for a statutory exception. The trial court addressed trial counsel's arguments (1) that a time bar in the 1981 case is subject to excusable neglect due to ineffective assistance of counsel for failing to inform Applicant that he had a right to collaterally attack the conviction; and (2) that collateral attack in the 1995 case was still timely given the grace period under Fagerholm. January 7, 2003 Pretrial Hr'g at 140-41 (25-26). The CCA addressed the trial court's findings regarding counsel's arguments.
Based on the record, the Court finds the factual determination correct and that Applicant has failed to rebut the presumption of correctness by clear and convincing evidence. As found in Claim Five, the trial court did not categorically deny Applicant's motion to exclude. Therefore, the CCA's denial of this claim, and any collateral claim that his right to testify was violated due to the court's refusal to suppress Applicant's previous convictions, was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court, or a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Claim Six, therefore, lacks merit, and Applicant is not entitled to relief.
In Claim Seven, Applicant argues that his convictions for burglary, felony murder, and violating a restraining order must be vacated because the evidence is insufficient to sustain the guilty verdicts. ECF No. 1 at 21-22. In support of this claim, Applicant contends that two restraining orders were issued against him; one was issued on August 10, 2012, by a deputy who had arrested Applicant for domestic violence; and the second one by the victim, issued pursuant to Colo. Rev. Stat. § 13-14-101, et seq., which was never served on Applicant. Id. at 21. Applicant contends that there was insufficient evidence to prove he violated the August 10 restraining order and that he was not personally served with the other restraining order pursued by the victim. Id. Applicant concludes that because the record is void of evidence that he personally was served on one restraining order and the other order restraining order lacked sufficient evidence to prove he had violated it, then it follows that the burglary and felony murder verdicts, which are based on the intent to commit the crime of violating "valid" restraining orders, likewise lack sufficient evidence to sustain the guilty verdicts. Id. at 22.
With respect to the insufficient evidence claim the CCA found as follows.
Smith, No. 03CA1273 at 10-11.
The standard for sufficiency of the evidence, which was clearly established when Applicant was convicted, is set forth in Jackson v. Virginia, 443 U.S. 307 (1979). In Jackson, the Supreme Court held that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id.
This standard reflects the "longstanding principle that it is the jury's province to weigh the evidence and to draw reasonable inferences from testimony presented at trial." Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004). The Court's review under this standard is "`sharply limited' and a court `faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Wright v. West, 505 U.S. 277, 296-97 (1992)).
Sufficiency of the evidence is a mixed question of law and fact. Maynard v. Boone, 468 F.3d 665, 673 (10th Cir. 2006). Maynard further states that the inquiry is not simply dealt with under 28 U.S.C. § 2254(d)(1) as McKune indicates, but requires applying both subsections (d)(1) and (d)(2) of § 2254 to determine whether the facts are correct and the law was properly applied to the facts. Id. (citing Hamilton v. Mullin, 436 F.3d 1181, 1194 (10th Cir. 2006); Hale v. Gibson, 227 F.3d 1298, 1335 n. 17 (10th Cir. 2000) (noting precedent has investigated sufficiency of the evidence both as a legal question and as a factual question). The Court also must defer to any determination of factual issue by the state court due to the presumption of correctness afforded by § 2254(e), and Applicant must show by clear and convincing evidence that the state court's decision was an unreasonable determination of the facts. Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002).
There were two issues before the CCA, which now are presented in this claim. The first issue is whether sufficient evidence existed to prove Applicant violated the August 11, 2002 restraining order, because pursuant to § 18-1-1001 the order is not effective until a person is advised of his rights at arraignment or his first appearance before the court and is informed of the order. ECF No. 11-2, Opening Brief on Direct, Ex. B at 34-35; ECF No. 1. at 21-22.
The prosecution entered two exhibits, Exhibit Nos. 75 and 76. See Case No. 02CR3477, People's Exhibits (CD Numbering 66 and 67); Mar. 10, 2003 Trial Tr. at 1303 and 1314 (116 and 127). Exhibit No. 75 is a restraining order signed by Applicant and entered by the El Paso County Court on August 11, 2002, that was in effect until August 14, 2002. See People's Exhibits. During El Paso County Deputy Sheriff Aaron Lee Baker's testimony, Exhibit No. 75 was entered on the record, without contest or cross-examination by trial counsel regarding Deputy Baker's statement that Applicant signed the restraining order on August 11, 2002, the day after being arrested for harassment, domestic violence, and criminal mischief involving the victim, Mar. 10, 2003 Trial Tr. at 1303-04 (116-17).
Exhibit No. 76 is a restraining order signed by Applicant and entered by the El Paso County District Court on August 17, 2002, that was in effect until midnight August 21, 2002. Case No. 02CR3477, People's Exhibits (67). During Colorado Springs Police Officer John Surma's testimony, Exhibit No. 76 was entered on the record, without contest or cross-examination by trial counsel regarding the date the restraining order was signed. Mar. 10, 2003 Trial Tr. at 1314-15 (127-28).
There was testimony by Mr. Surma that Applicant had violated the August 11 restraining order on August 12, 2002. Id. at 1305-1311 (118-24); and there was further testimony by Colorado Springs Police Officer Mark James Garcia that applicant had violated the August 11 restraining order on August 14, 2002. Id. at 1316-21 (129-34).
With respect to both restraining orders and the testimony given regarding the incidents that took place on August 10, which led to Applicant's arrest and the first restraining order to be entered, and the subsequent events on August 12 and 14, 2002, the jury was instructed to consider the statements regarding the incidents for the sole purpose of showing intent, motive or absence of mistake and for no other purpose. Id. at 1294 (107) and 1307 (120).
Applicant concedes that the August 11 and 17, 2002 restraining orders pursuant to Colo. Rev. Stat. § 18-1-1001, were entered and expired on August 14 and 21, 2002 respectively; Applicant does not deny he signed the orders. See ECF No. 1 at 21-22.
After reviewing the trial transcripts and people's exhibits, with particular detail, as noted above, the Court finds evidence of the August 11 restraining order, and subsequent violations of this order, were properly before the jury as prior incidents to show intent, motive or absence of mistake for the jury to weigh and to draw reasonable inferences. Turrentine, 390 F.3d at 1197. Therefore, the CCA's determination that the August 11 and 14, 2002 restraining orders were properly completed and signed by both defendant and a judge, was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court, and was not an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Likewise, the CCA's determination that each order, especially the August 11 order, constituted prima facie evidence that a valid and effective restraining order was in effect, was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court, and was not an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
The second issue involves the temporary civil restraining order that the victim sought, which was entered on August 14, 2002, and was scheduled for hearing on August 28, 2002. See Smith, No. 2002CR3477, People's Ex. 66 (55-56) (This exhibit was entered on the record, see Mar. 10, 2003 Trial Tr. at 1364 (177), without objection by trial counsel, id. at 1365 (178)). Applicant claims that he was not personally served with Exhibit No. 66; and without personal service or acquired knowledge of the order from the court or law enforcement, as required under Colo. Rev. Stat. § 18-6-803.5(1), the evidence is insufficient to convict him of violation of the August 14 order. ECF No. 1 at 21. Applicant also argues in the Traverse, that without knowledge of the order he did not violate a restraining order or commit burglary and even if he was the one who committed the offense it is reasonable that he shot the victim only after he confronted her and she struck him, which is second degree murder. ECF No. 47 at 13. Applicant further asserts in the Application that Deputy Garcia testified "definitively" Applicant had not been personally served with the August 14 order. ECF No. 1 at 21.
Deputy Garcia testified that on August 14, 2002, he was dispatched to the victim's house to investigate a violation of a court order, which was a no contact order entered against Applicant when he was released from jail. Mar. 10, 2003 Trial Tr. at 1317 (130). Mr. Garcia further testified that when he talked with the victim on August 14 she told him there was a restraining order against Applicant that had not been served yet; but there was an active no-contact order. Id. at 1317-18 (130-31). Nothing in Mr. Garcia's testimony supports Applicant's argument that on August 27, 2002, the date the shooting took place, he had not been personally served or did not have actual notice of the August 14, 2002 temporary civil restraining order or the pending August 28, 2002 hearing.
Furthermore, Matthew Mack testified that on August 27, 2002, Applicant was aware that he had a restraining order against him and he was not to have any contact with the victim. Mar. 6, 2003 Trial Tr. at 1108-09 (249-50). Moreover, Rhonda Taken-Alive testified that on August 27, 2002, at about 10:15 p.m. she received a call from the Applicant during which he stated he had to go to court with the victim the next morning at 8:00 a.m. Id. at 1142.
As stated above in the Legal Standards section of this Order, even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox, 196 F.3d at 1177. Therefore, the Court "must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
The CCA does not specifically address the restraining order found in Exhibit No. 66, of which Applicant claims he had no personal knowledge and, therefore, could not have been guilty of violating a restraining order, committing burglary, of felony murder. The CCA, however, did deny the sufficiency of the evidence claim as it pertained to Applicant's burglary, felony murder, and violating a restraining order convictions.
Pursuant to Aycox, this Court must uphold the state court's summary decision unless the Court is persuaded from an independent review of the record and pertinent federal law persuades that the state court results contravene or unreasonably apply clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.
Furthermore, the credibility of a witness is entirely within the province of the jury and "virtually unreviewable on appeal." See United States v. Bass, 661 F.3d 1299, 1307 (10th Cir. 2011) (quoting United States v. Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003) (internal quotation marks omitted). A witness's testimony is disregarded only if "it is unbelievable on its face," in other words if it asserts "facts that the witness physically could not have possibly observed or events that could not have occurred under the laws of nature." Bass, 661 F.3d at 1307-08 (quoting Virgen-Chavarin, 350 F.3d at 1134) (internal quotation marks omitted).
Before the jury was (1) Mr. Garcia's testimony, which, contrary to Applicant's claim, does not include a definitive statement that on August 27, 2002, Applicant did not know of a pending hearing on August 28, 2002; (2) Mr. Mack's testimony that Applicant did know on August 27, 2002, he was subject to a restraining order; and (3) Ms. Taken-Alive's testimony that on August 27, 2002, Applicant told her he had to go to court with the victim at 8:00 a.m. the next morning. It was the "jury's province to weigh the evidence and to draw reasonable inferences from testimony presented at trial." Turrentine, 390 F.3d at 1197. The evidence was sufficient to support a finding that Applicant was aware of the restraining order and as a result violated the order and committed burglary and felony murder. Applicant, therefore, has not rebutted the state court's factual findings by clear and convincing evidence; and the Court finds a basis for upholding the CCA's summary decision as it may pertain to Exhibit No. 66.
Based on the evidence before the jury regarding all restraining orders, this Court finds that the CCA's denial of Applicant's insufficiency of the evidence claim does not contravene or unreasonably apply clearly established federal law, or is the denial based on an unreasonable determination of the facts in light of the evidence the presented. Claim Seven, therefore, lacks merit, and Applicant is not entitled to relief.
Applicant and Respondents agree that this claim should be denied as moot. ECF No. 37 at 37-38; ECF No. 47 at 14, and Applicant voluntarily dismisses the claim. ECF No. 47 at 14.
Applicant asserts that appellate counsel was ineffective when he failed to raise a Crawford claim on direct appeal, especially because there was eleven months from when Crawford was decided until the CCA denied Applicant's appeal. ECF No. 1 at 22-23. Applicant further states in his Traverse that he only is challenging the police officer testimony that the CCA held was harmless. ECF No. 47 at 17. He also contends that had his appellate counsel raised the Crawford issue in the direct appeal prior to his conviction becoming final he would have "posted" the argument to the U.S. Supreme Court, and his case, rather than the Giles case, would have been reviewed by the Supreme Court. Id.
In addressing this claim, the CCA found as follows.
. . . .
Smith, No. 10CA0098, 3-15 (Colo. App. July 5, 2012).
It was clearly established when Applicant was convicted that a defendant has a right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Strickland is the clearly established federal law applicable to an ineffective assistance of an appellate counsel claim. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (holding "[t]he proper standard for evaluating [a] claim that appellate counsel was ineffective . . . is that enunciated in Strickland. . . .")).
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 Strickland 466 U.S. 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) (quoting Richter, 131 S. Ct. at 787 (2011) (citation 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 and citation omitted). An applicant must show counsel failed to act "reasonabl[y] considering all the circumstances." Cullen v. Pinholster, 563 U.S. 170, ___, 131 S.Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688).
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. (citing Strickland, 466 U.S. at 693.)
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.
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. Also, ineffective assistance of counsel claims are mixed questions of law and fact. See id. at 698. Pursuant to § 2254(e)(1), the factual findings of the state courts are presumed correct. Applicant bears the burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The CCA discussed at length the application of Giles to the testimony by friends and police officers. Giles, however, does not apply to this case because the decision in Giles was issued in 2008 over three years after Applicant's conviction became final . See Garrett v. Raemisch, 601 F. App'x 650, 653 (10th Cir. 2015) (An applicant must show pursuant to Williams v. Taylor, 529 U.S. 362 (2000), that the "state court decision contravened a rule of law that was clearly established at the time his state-court conviction became final." (internal quotation marks omitted)). Nonetheless, the CCA opted to deny Applicant's ineffective assistance of appellate counsel claim because Applicant was unable to show that he was prejudiced by appellate counsel's failure to raise the Crawford issue on appeal rather than whether Applicant's actions were sufficient to satisfy the intent requirement of Giles.
Based on the overwhelming totality of the evidence as noted in the CCA's decision and by this Court's own review of the record, Applicant has failed to demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Six individuals were able to identify Applicant either by seeing or hearing him at the time of the shooting. One of the individuals who saw Applicant commit the shootings had known him for a number of years, referred to him as uncle, and stated his name in the 911 call she made.
The Court, therefore, finds that the state court's decision to deny Applicant's ineffective assistance of counsel claim based on lack of prejudice was not contrary to or an unreasonable application of any clearly established rule of federal law as determined by the U.S. Supreme Court, or a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
In the Traverse, Applicant states that he is voluntarily dismissing this claim because his conviction was final prior to Giles v. California, 554 U.S. 353 (2008).
As stated above under the Court's discussion of Claim Nine, it was clearly established when Applicant was convicted that a defendant has a Sixth Amendment right to the effective assistance of counsel. See Strickland, 466 U.S. at 668. 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. 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 Applicant's burden to overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances. Id.
"For counsel's performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong." Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Furthermore, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (Citation omitted).
Under the prejudice prong, 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. In determining whether Applicant has established prejudice, the Court must look at the totality of the evidence and not just the evidence that is helpful to Applicant. See Boyd, 179 F.3d at 914.
If Applicant 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, 261 F.3d at 1022 n.2.
In this claim, Applicant asserts that trial counsel was ineffective for not investigating and presenting evidence that he rescued his wife from a prescription drug overdose prior to the shooting. ECF No. 1 at 28. Applicant contends that this evidence would have rebutted the prosecution's theory that Applicant premeditated his wife's murder. Id. Applicant further contends trial counsel stipulated that this evidence would not be admitted unless Applicant testified; but the evidence could have been admitted otherwise through the victim's medical records, which were available because the records were disclosed to the district attorney. Id. Finally, Applicant asserts that another person was present when Applicant discovered his unconscious wife, but trial counsel elected not to have this person testify. Id.
In the Traverse, Applicant further asserts that trial counsel should have presented the suicide attempt evidence, along with evidence that the shooting was committed by someone else as a result of a drug debt owed by the victim. ECF No. 47 at 21.
The CCA addressed this claim as follows.
Smith, No. 10CA0098 at 16-18.
"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) (citations and 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.
The Court has reviewed the state court transcripts for the evidentiary hearing held in his Rule 35(c) postconviction motion proceeding. Nov. 23, 2009 Postconviction Hr'g Tr. Applicant's claim that trial counsel was ineffective in not thoroughly investigating the law and facts regarding the victim's suicide attempt is not supported by the Rule 35(c) evidentiary hearing record. First, contrary to Applicant's claim that the victim's suicide attempt was within two weeks of the shooting, Applicant stated during the Rule 35(c) hearing that "[i]t was close to around somewhere within six months or so, or less." Id. at 28.
Furthermore, during the hearing Applicant states he told trial counsel that Maurice Cooper, LaShawn Moffitt, and Mitch Lewis were witnesses to the suicide attempt, but counsel did not interview them. Id. at 28-29. Trial counsel testified at the Rule 35(c) hearing that she did interview family members, Maurice Cooper and Mitch Lewis, regarding the suicide attempt and they provided information to counsel relevant to Applicant's state of mind regarding his wife, id. at 110; but she opted not to introduce the evidence because Applicant most likely would have had to testify to succeed in introducing the state-of-mind evidence, id. at 111. The trial court, however, granted a motion in limine for the prosecution that prohibited the introduction of the suicide attempt. Id. at 143-44.
Trial counsel further stated during the hearing that it would have been an uphill battle regarding the admissibility of the evidence because the length of time between the shooting and the suicide attempt. Id. at 111. Counsel also stated it was too risky because if Applicant testified the prosecution would be able to admit the recorded 911 calls made by the victim at previous domestic violence incidents. Id. at 112.
Finally, with respect to Applicant's drug debt theory, trial counsel testified that she indeed investigated this theory, talked with individuals Applicant identified, but could not find anyone that knew the victim was dealing drugs. Id. at 106-07. Counsel also stated she attempted to retain an expert in misidentification but she declined to assist. Id. at 116. Trial counsel further stated that there was no one who would give Applicant an alibi at the time of the shooting and that no alternate suspect was ever identified. Id. at 106, 129, and 145. It was also established at the Rule 35(c) hearing that (1) the victim's medical records were denied because the victim's estate claimed doctor/patient privilege; (2) the trial court had access to the medical records not the district attorney; (3) trial counsel believed she had not viewed the medical records; and (4) trial counsel had to confess in part to the motion in limine regarding the reselling of drugs because she had no evidence that the victim was selling drugs. Id. at 108 and 122.
Based on the testimony and evidence before the state trial court at the Rule 35(c) hearing, regarding Applicant's state-of-mind at the victim's suicide attempt and the use of this evidence, along with investigative attempts to pursue Applicant's theory that someone else shot the victim, this Court finds that 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. Nov. 23, 2009 Postconviction Hr'g Tr. At 1-64; Court File, Order Re: Crim. P. Rule 35(c) Motion, at 539-41.
Because Applicant does not point to any clear and convincing evidence to the contrary, 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. Strickland at 694.
Even if trial counsel was ineffective in not conducting a reasonable investigation and interviewing witnesses that would support a misidentification defense or lack of premeditation, Applicant fails to assert how he was prejudiced by trial counsel's conduct. Applicant does not assert what trial counsel would have discovered if she had been able to identify and interview witnesses who knew of the victim's alleged drug debt that would support a misidentification defense. Moreover, in light of the overwhelming evidence presented in the state court proceedings that Applicant committed the offense on August 27, 2002, the CCA's determination was reasonable.
Based on the above findings, the CCA decision regarding Applicant's claim that trial counsel failed to investigate and present evidence about his rescue of his wife in her suicide attempt, which Applicant claims could have come in through the victim's medical records, and that counsel failed to properly investigate the misidentification defense 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. Claim Eleven(i), therefore, lacks merit, and Applicant is not entitled to relief.
In this claim, Applicant asserts that trial counsel was ineffective for failing to object to the prosecution eliciting an expert opinion from Ms. Bier, a domestic violence expert, without qualifying her as an expert witness. ECF No. 1 at 28. Applicant further contends that during the postconviction evidentiary hearing trial counsel did not identify her failure to object as a strategic decision; and as a result there is no evidence that counsel made a "strategic decision" to not object. Id.
Applicant also contends that because trial counsel failed to object to Ms. Bier's testimony as a domestic violence expert without being qualified as such, Ms. Bier was allowed to testify at length regarding (1) the procedure for obtaining a restraining order in Colorado; (2) how victims sometimes are manipulated by offenders to not follow through with a restraining order; and (3) how victims worry about how the offender will feel when served with the order. Id. at 28-29. Applicant further contends that trial counsel made only one objection to the testimony based on hearsay, which was overruled; and Ms. Bier was allowed to testify about the restraining order procedure, even though Applicant did not know a restraining order had been entered against him and he had not tried to manipulate the legal system. Id. at 29. Applicant also asserts that trial counsel did not object to testimony about how an offender may try to bribe a victim to drop the order or about how when a victim moves out the husband escalates the behavior. Id.
Applicant further contends that Ms. Bier's testimony only could have been admitted pursuant to Rule 702 of the Colorado Rules of Evidence; but the evidence was allowed without qualifying Ms. Bier as a witness and without her having helped the victim prepare the restraining order or talked to her and not having talked with Applicant about how he felt. Id. Applicant further asserts that trial counsel failed to request a hearing before trial to contest Ms. Bier's testimony on the basis that expert testimony is only admissible in a domestic violence case to explain why a victim would recant. Id. at 30. Finally, Applicant contends that Ms. Bier's testimony was inadmissible under Colo. R. Evid. 403 and prejudiced him. Id.
In the Traverse, Applicant asserts that trial counsel was allowed under People v. Shreck, 22 P.3d 68 (Colo. 2001), to challenge Ms. Bier's testimony and the prosecution's theory of motive, but failed to do so. ECF No. 47 at 24. Applicant further asserts in the Traverse that had trial counsel obtained an expert most likely the expert would have testified that the victim "made up" the accounts of prior domestic abuse and that there is a substantial step between an alleged domestic abuse incident and murder. Id. The CCA addressed this issue as follows.
Smith, No. 10CA0098 at 18-20.
Trial counsel testified at the Rule 35(c) hearing that she does not believe the domestic violence expert's speech regarding the cycle of violence was any more damaging to Applicant than the introduction of the previous domestic violence incidents. Nov. 23, 2009 Postconviction Hr'g at 117-18. She concedes she did not consider obtaining an expert witness to rebut the expert; but she states that she did not know of anyone who would testify differently given the facts to the case. Id. at 117-18 and 158-59; ECF No. Counsel also testified that this was not a case where a Schreck analysis was proper and that she did not file a pretrial motion challenging the testimony. Id. at 118.
Counsel also stated that it is best just to challenge the underlying allegations regarding the restraining order violations and the prior domestic violence incidents, especially since once it was ruled that the prior domestic violence incidents were to be heard by the jury the expert is going to get to testify. Id. at 159. Counsel's strategy was to focus on keeping the other domestic violence cases separate because they were minor and would not equate to a motive for homicide. Id.
Based on the testimony and evidence before the state trial court at the Rule 35(c) hearing, regarding counsel's strategy in not objecting to the domestic violence expert's testimony, this Court finds that 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. Nov. 23, 2009 Postconviction Hr'g Tr.; Court File, Order Re: Crim. P. Rule 35(c) Motion, at 541-42.
Because Applicant does not point to any clear and convincing evidence to the contrary, the Court finds that he has not demonstrated a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland at 694.
Even if trial counsel was ineffective in not objecting to the expert's testimony, Applicant's prejudice claims are conclusory and vague. Furthermore, in light of the overwhelming evidence presented in the state court proceedings that Applicant committed the offense on August 27, 2002, Applicant was not prejudiced by the expert's testimony and the CCA's determination was reasonable.
Based on the above findings, the CCA decision, regarding Applicant's claim that trial counsel failed to challenge the domestic violence expert's testimony, 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. Claim Eleven(ii), therefore, lacks merit, and Applicant is not entitled to relief.
In this claim, Applicant asserts that trial counsel was representing a prosecution witness in a separate criminal case, but that counsel did not inform him of the representation until after Applicant's trial had started. ECF No. 1 at 30. Applicant asserts that even though counsel withdrew as the witness's counsel in the separate criminal case, the conflict of interest was not abated and the Sixth Amendment was violated. Id. at 31. Applicant contends that trial counsel still was in an untenable position of having to cross examine a former client without betraying any confidences and privileged information. Id. In particular, Applicant claims that trial counsel should have impeached this witness because the witness had been charged with fraud and theft, but was unable to do so because the information was confidential. Id. Applicant further contends that trial counsel's cross examination of this witness was less than rigorous and there was no finding made that any of the confidential information obtained from this witness, while trial counsel was representing her, would have been admissible pursuant to CRD 608(b). Id. Applicant's trial and trial counsel's examination, therefore, was impaired. Id.
Trial counsel testified at the postconviction proceeding:
Smith, No. 10CA0098 at 21-24.
Counsel testified that the public defender's office did represent a witness in Applicant's case, but she stated that "once that attorney realized she was a witness in Mr. Smith's case, our office moved to withdraw and A.D.C. was appointed. I think it was the same day." Nov. 23, 2009 Postconviction Hr'g at 123. Counsel further testified that at the time Applicant was charged with the murder of the victim she did not believe she represented in a separate criminal case an individual who was a witness in Applicant's case. Id. at 155. Counsel stated that "I think [the witness] was on a deferred sentence, and there was a motion to revoke her deferred sentence at a later point in time where our office was appointed, and then we moved to withdraw and had A.D.C. appointed. Id. Counsel further confirmed that she did not represent the witness at the time she was appointed to represent Applicant. Id. at 156.
Based on the testimony and evidence before the state trial court at the Rule 35(c) hearing, regarding counsel's failure to address any conflict of interest, this Court finds that 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. Nov. 23, 2009 Postconviction Hr'g Tr.; Court File, Order Re: Crim. P. Rule 35(c) Motion, at 542.
Because Applicant's claims are conclusory and vague and he does not point to any clear and convincing evidence to the contrary, 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. Strickland at 694.
Even if trial counsel was ineffective in not addressing any conflict of interest, Applicant fails to assert how he was prejudiced by trial counsel's conduct. His claims are highly speculative that counsel's actions prejudiced him. He does not assert how he was prejudiced by counsel not (1) vigorously cross examining the witness; (2) notifying him of the witness representation until after his trial commenced; and (3) impeaching the witness by introducing as evidence that the witness had fraud and theft charges against her. Furthermore, in light of the overwhelming testimony of six eyewitnesses that Applicant committed the offense on August 27, 2002, he is not prejudiced by the testimony of one witness who may or may not have been represented by trial counsel of the public defender's office for a very short period of time after trial counsel was appointed to represent Applicant. The CCA's determination, therefore, was reasonable.
Based on the above findings, the CCA decision regarding Applicant's conflict of interest 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. Claim Eleven(iii), therefore, lacks merit and will be dismissed.
Finding all claims either barred from federal habeas review or lacking in merit, and Applicant having voluntarily dismissed Claim Eight as moot and Claim Nine as inapplicable it is
ORDERED that Applicant Marlon L. Smith's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (ECF No. 1) is DENIED and the civil action is dismissed WITH PREJUDICE. It is
FURTHER ORDERED that each party shall bear his own costs and attorney's fees. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right, pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that 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 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 also must 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.
