R. BROOKE JACKSON, District Judge.
Applicant, Cesar Pasillas-Sanchez, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1) challenging the validity of his criminal conviction in the District Court of Jefferson County, Colorado. Respondents have filed an Answer (Docket No. 19) and Applicant has filed a Reply (Docket No. 23). Having considered the same, along with the state court record, the Court will deny the Application.
On August 4, 2005, Applicant was convicted in Jefferson County District Court Case No. 03CR783 of second-degree murder, two counts of theft by receiving, three counts of possession of a controlled substance, and three special offender counts. (Docket No. 1, at 2, 4; Docket No. 11-1 at 7-10). He was sentenced to an aggregate 96-year prison term with the Colorado Department of Corrections. (Docket No. 1 at 2).
In Applicant's direct appeal proceeding, the Colorado Court of Appeals summarized the relevant facts as follows:
People v. Pasillas-Sanchez, 214 P.3d 520, 523 (Colo. App. 2009) (Pasillas-Sanchez I). Applicant's conviction was affirmed on direct appeal. (Id.). The Colorado Supreme Court denied Applicant's petition for certiorari review on August 31, 2009. (Docket No. 11-6).
On January 25, 2010, Applicant filed a motion for reconsideration of his sentence, pursuant to Colo. Crim. P. Rule 35(b), which was denied by the state district court on March 22, 2010. (Docket No. 11-1 at 19-20). Applicant did not appeal the trial court's order. (Id. at 19).
On November 10, 2010, Applicant filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c). (Id. at 19). Following the trial court's denial of the motion and the counseled supplemental motion, the Colorado Court of Appeals affirmed the trial court's order in People v. Pasillas-Sanchez, No. 13CA0097 (Colo. App. Dec. 11, 2014) (unpublished) (Pasillas-Sanchez II). (Docket No. 11-10). The Colorado Supreme Court denied Applicant's petition for certiorari review on June 22, 2015. (Docket No. 11-12).
On July 29, 2015, Applicant filed his federal application under 28 U.S.C. § 2254 raising the following claims:
In a Pre-Answer Response, Respondents conceded the timeliness of the Application under 28 U.S.C. § 2244(d). (Docket No. 11 at 4-8). Respondents further conceded that Applicant exhausted state court remedies for claims one and eight. (Id. at 11). Respondents argued, however, that claims two, four, five and nine were procedurally barred, and that claims six, seven and ten were unexhausted. (Id.). Respondents further contended that claim three failed to state a cognizable constitutional claim. (Id. at 13-14).
In a December 2, 2015 Order to Dismiss in Part, the Court dismissed claims two, four, five and nine as procedurally defaulted. (Docket No. 18). The Court ordered Respondents to file an Answer addressing the merits of exhausted claims one, three, six, seven, eight and ten. (Id.).
The Court reviews claims one, three, six, seven, eight, and ten below under the AEDPA standard of review.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562 U.S. 86, 98-99 (2011). In particular, determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning. Id. at 98. 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.
The court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is whether the applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time of the relevant state court decision. See Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision. Id. at 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
House, 527 F.3d at 1018.
The court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. In addition,
Harrington, 562 U.S. at 101 (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.
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 Harrington, 562 U.S. at 88 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Harrington, 562 U.S. at 102.
"[R]eview 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, 563 U.S. 170, 181 (2011).
The court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002). Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court must presume that the state court's factual determinations are correct and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Applicant is proceeding pro se. The court, therefore, "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle an applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
For his first claim, Applicant contends that he was denied his constitutional right to be represented by counsel of his choice when the trial court disqualified defense counsel because he was a potential witness. (Docket No. 1, at 10).
"[T]he Sixth Amendment guarantees the defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25 (1989)); see also Luis v. United States, ___ S.Ct. ___, 2016 WL 1228690 at *6 (March 30, 2016) (same).
"[W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159 (1988) (citing Morris v. Slappy, 461 U.S. 1, 13-14, (1983) and Jones v. Barnes, 463 U.S. 745 (1983)). Because "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them," Wheat, 486 U.S. at 160, the right to be represented by counsel of choice "is circumscribed in several important respects." Id. at 159.
In Pasillas-Sanchez I, the Colorado Court of Appeals set forth the following relevant background facts.
Pasillas-Sanchez, 214 P.3d at 524.
In its analysis, the state appellate court recognized:
Id.
The Colorado Court of Appeals went on to discuss Colo. RPC 3.7, which precludes a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness, unless: the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal services rendered in the case; or, disqualification of the lawyer would work a substantial hardship on the client. Id. at 525. The Court of Appeals then stated:
Id.
The state appellate court considered the exceptions set forth in Colo. RPC 3.7(a), and analyzed whether Mr. Lozow's testimony was about an uncontested issue or if his disqualification would be a substantial hardship to the Applicant. Id.
The state appellate court agreed with the trial court that Mr. Lozow's testimony would not have related to an uncontested issue because a central issue in the case was "the nature and status of the relationship between defendant and the victim" and the attorney's testimony would be relevant to "the heart of the truth as to whether this was a homicide or a suicide."
Next, the Colorado Court of Appeals determined that there was "adequate basis in the record to support the trial court's conclusion that preventing Lozow from testifying would not be a substantial hardship on defendant. . . ." Id. at 527. The appellate court based its determination on the trial court's findings that "(1) defendant was still represented by Carberry, and so he would retain at least one counsel of choice; (2) there were only two sources of information on this issue-Lozow and defendant; and (3) it would undercut defendant's opportunity to freely choose whether to testify at trial if Lozow remained as counsel." Id.
The Colorado Court of Appeals then concluded that absent disqualification of defense counsel, the trial could not be conducted in fairness to all parties. Specifically, the court agreed with the trial court's findings that
Id. at 527-28.
Under § 2254(e)(1), the state court's factual findings are presumed correct. Further, the Court has carefully reviewed the state court record, which fully supports those findings. Applicant does not point to any clear and convincing evidence in the record to rebut the state courts' findings that a conflict of interest between Applicant and Mr. Lozow existed before trial based on Mr. Lozow's knowledge of facts relating to a material issue at trial (i.e., the nature of the relationship between Applicant and the victim)-information known only to Applicant and Mr. Lozow.
In evaluating whether the Colorado Court of Appeals' decision was contrary to, or an unreasonable application of federal law, under § 2254(d)(1), the Court observes that the Supreme Court's decisions in Gonzalez-Lopez and Caplin& Drysdale, Chartered are factually distinguishable from the present case and, therefore, do not provide the applicable rule of law. See House, 527 F.3d at 1016, 1018.
In Gonzales-Lopez, the parties did not dispute the Eighth Circuit's determination that the defendant's right to be represented by counsel of his choice was violated when the district court wrongfully denied counsel's motions for admission pro hac vice based on the court's erroneous determination that counsel had violated the state's professional rules of conduct by communicating with a represented party in the case at bar and in a separate proceeding. 548 U.S. at 143-144. Instead, the issue before the Supreme Court was whether the defendant was also required to demonstrate prejudice to prevail on a Sixth Amendment claim. Id. at 144-45. The Supreme Court held that the deprivation of the Sixth Amendment right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received." Id. at 148. The Court further held that "the wrongful deprivation of choice of counsel is `structural error,' immune from review for harmlessness, because it `pervades the entire trial.'" Id. at 150. The Supreme Court concluded its opinion in Gonzalez-Lopez by stating that "[n]othing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice.," id. at 151, including the "trial court's wide latitude in balancing the right to counsel of choice against the needs of fairness." Id. at 152 (citing Wheat, 486 U.S. at 163-164).
In Caplin & Drysdale, Chartered, the Supreme Court rejected the petitioner's claim that criminal defendants have a Sixth Amendment right to use assets that are the Government's — assets adjudged forfeitable— to pay attorney's fees, merely because those assets are in the defendant's possession. 491 U.S. at 632-33; Cf. Luis, 2016 WL 1228690 at *5 (holding that the pretrial restraint of a defendant's legitimate, untainted assets needed to retain counsel of choice violates the Sixth Amendment).
Because Gonzalez-Lopez and Caplin & Drysdale, Chartered are factually distinguishable in material respects from Applicant's case, the Supreme Court rule applicable here is found in Wheat. In Wheat, the Supreme Court recognized that the Sixth Amendment right to be represented by counsel of choice "is circumscribed in several important respects" because "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them." Wheat, 486 U.S. at 159-60. The Supreme Court instructed the federal district courts to "recognize a presumption in favor of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict." Id. at 164. The Court further stated that the "evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court." Id.
In evaluating whether a state court decision was an unreasonable application of federal law, the Court must consider the specificity of the applicable rule. "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
Applying the general rule and parameters announced in Wheat, the Court finds that the Colorado Court of Appeals' determination that disqualification of Applicant's counsel of choice was warranted because of an actual or potential conflict arising from Mr. Lozow's dual role as an advocate and potential witness on a material trial issue that was known only to Applicant and Mr. Lozow, was not "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. Harrington, 562 U.S. at 102. See also Kennedy v. Stewart, No. 13-1077, 567 F. App'x 433, 435 (6th Cir. June 9, 2014) (unpublished) (rejecting state prisoner's Sixth Amendment claim under AEDPA standard of review because "the state court reasonably balanced the fairness in preventing an attorney from doubling as both an advocate and witness during the same trial against Kennedy's choice of counsel."); United States v. Collins, 920 F.2d 619, 626 (10
The Court further finds that the state appellate courts' determination that Applicant may not have received a fair trial if Mr. Lozow was allowed to both represent him at trial and testify as a trial witness was reasonable based on the evidence presented in the state court proceeding. See § 2254(d)(2). Applicant argues in his Reply that Mr. Lozow's trial testimony "was entirely devoted to collateral matters" and "had absolutely nothing to do with the matter for which Lozow was disqualified" (Docket No. 23 at 5-6). However, Applicant's characterization of Mr. Lozow's trial testimony is contradicted by the state court record.
Applicant is not entitled to federal habeas relief for claim one.
In claim three, Applicant contends that was deprived of a fair trial when the trial court denied his challenge for cause to a prospective juror. (Docket No. 1 at 10).
The Sixth and Fourteenth Amendments guarantee a defendant the right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L. Ed. 2d 751 (1961). To be "impartial," a juror must be able to "lay aside his opinion and render a verdict based on the evidence presented in court." Patton v. Yount, 467 U.S. 1025, 1036 n. 12 (1984). Any claim that the jury was not impartial must focus on the jurors who ultimately sat. Ross, 487 U.S. at 86 (although trial court erred by failing to dismiss prospective juror for cause, error did not deprive petitioner of an impartial jury or of any interest provided by the State where defense exercised peremptory challenge to remove him). See also United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) ("[I]f the defendant elects to cure [the trial court's error in refusing to dismiss a prospective juror for cause] by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.").
In Pasillas-Sanchez I, the Colorado Court of Appeals provided the following background to Applicant's claim:
214 P.3d at 529.
The Colorado Court of Appeals determined that the trial court did not abuse its discretion in denying the Applicant's challenge for cause because the Applicant had failed to demonstrate any implied or actual bias on the part of the prospective juror. Id. at 529-530.
The Court finds that the state appellate court's decision was not contrary to or an unreasonable application of federal law because the juror who Applicant challenged for cause was ultimate excused by a peremptory challenge and did not sit on his jury.
Applicant asserts in claims six, seven, eight and ten that his Sixth Amendment right to the effective assistance of counsel was violated because: counsel failed to investigate critical issues (claim six); counsel failed to consult experts necessary to the defense (claim seven); counsel was ineffective "in pre-trial, trial, and post-trial situations involving competence, deligence [sic] scope of representation, and advising, as well as other deficiencies" (claim eight); and, counsel denied Applicant access to his discovery materials (claim ten). (Docket No. 1 at 10-11).
Respondents argued in the Pre-Answer Response that the ineffective-assistance-of-counsel (IAC) claims were not pled adequately under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. (Docket No. 11 at 17-18). Respondents further maintained that, in any event, the claims are exhausted only with regard to the allegations that Applicant presented to the state appellate courts. (Id. at 18-19).
In his state post-conviction proceeding, Applicant presented the following claims to the Colorado Court of Appeals:
In the December 2, 2016 Order, the Court agreed with Respondents as to the following characterization of Applicant's IAC claims: "habeas claims six and seven can be read to encompass state claim three; habeas claim eight encompasses state claims one and two; and, habeas claim ten encompasses state claim four." (Docket No. 18 at 10; Docket No. 11 at 19). The Court then found that Applicant had exhausted his state court remedies with regard to the allegations presented to the Colorado Court of Appeals. (Docket No. 18 at 11-12).
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must show both that (1) his counsel's performance was deficient (i.e., that identified acts and omissions were outside the wide range of professionally competent assistance), and (2) he was prejudiced by the deficient performance (i.e., that there is a reasonable probability that but for counsel's unprofessional errors the result would have been different). Strickland v. Washington, 466 U.S. 668 (1984).
"A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within the `wide range' of reasonable professional assistance." Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). "With respect to prejudice, . . . `[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id. (quoting Strickland, 466 U.S. at 694). "The likelihood of a different result must be substantial, not just conceivable." Strickland, 466 U.S. at 693.
"Surmounting Strickland's high bar is never an easy task." Harrington, 562 U.S. at 105 (internal quotation omitted). "Establishing that a state court's application of Strickland was unreasonable under §2254(d) is all the more difficult." Id. "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.
Claims six and seven encompass Applicant's allegations in the state post-conviction proceeding that defense counsel: "failed to interview friends of the victim and friends of the defendant who could have provided specific details regarding the victims [sic] personal history, trauma, social upbringing, mental health history, history of drug abuse, and propensity to act in a self-destructive manner" (Docket No. 11-8 at 24); "was unaware that an expert he had hired on blood spatter to represent the defense side of the issue had been interviewed by the prosecutor's investigator" (id.); and, that counsel "failed to hire a competent defense expert regarding the blood spatter evidence" and that the "defense expert's testimony was incompetent and resulted in prejudice to the defendants." (Id. at 25).
In Pasillas-Sanchez II, the Colorado Court of Appeals analyzed the IAC allegations as follows:
(Docket No. 11-10, at 12-15; see also Docket No. 11-4 at 18-22).
The Court finds that the state appellate court's resolution of Applicant's IAC claims was consistent with Strickland. Applicant fails to explain how counsel's failure to investigate witnesses who allegedly could have testified to the victim's history of attempting suicide, and her "troubled life," would have affected the outcome of his trial. Conclusory assertions are insufficient to support an ineffective assistance of counsel claim. See Cummings v. Sirmons, 506 F.3d 1211, 1228-29, 33-34 (10th Cir. 2007) (allegations based on unsubstantiated assertions of fact are not sufficient to satisfy Strickland); see also United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails "where [petitioner's] allegations are merely conclusory in nature and without supporting factual averments"). Moreover, the jury was not persuaded by the testimony of a defense witness that the victim, who had been his close friend, talked about committing suicide on more than one occasion.
In addition, Applicant has not established that he was prejudiced by defense counsel's unawareness, before trial, that Mr. Snyder, the defense expert in bloodstain patter analysis and crime reconstruction, had been interviewed by the prosecution before trial. The state appellate court's factual findings in Pasillas-Sanchez I, which were relied on by the court in Pasillas-Sanchez II, are presumed correct and are supported by the state court record.
And, finally, although the Colorado Court of Appeals did not specifically address Applicant's allegations that defense counsel performed deficiently by hiring an incompetent blood pattern analysis expert, the federal habeas court nonetheless reviews the claim under the AEDPA deferential standard of review. See Harrington, 562 U.S. at 99 (stating that "[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.").
The state court record reflects that the expert, Mr. Snyder, had an extensive background and had testified previously as an expert in several criminal cases.
Accordingly, Applicant is not entitled to federal habeas relief for claims six and seven.
In the state post-conviction proceeding, Applicant argued in his opening brief that: (1) "Trial counsels [sic] advice regarding whether to accept the offered plea agreement of 16-48 years or proceed through trial to verdict amounts to deficient performance" (Docket No. 11-8 at 16-20); and (2) "Trial counsels [sic] advice regarding Mr. Pasillas-Sanchez [sic] right to testify was deficient performance because it overbore the will of Mr. Pasillas-Sanchez preventing him from exercising his fundamental right to testify on his own behalf" (id. at 20-24).
Applicant asserted in his state post-conviction motion that he rejected a 16-48-year plea offer from the government based on defense counsel's erroneous advice that if he was found guilty at trial, all of the sentences would run concurrently because the criminal offenses arose from the same criminal episode.
The state district court rejected Applicant's IAC claim on the ground that Applicant had not provided any affidavits to support his assertion that a plea offer was made during jury deliberations (a claim contradicted by the Government), nor did Applicant maintain that the trial court would have accepted a plea offer made after the case was submitted to the jury.
In Pasillas-Sanchez II, the Colorado Court of Appeals rejected Applicant's IAC allegations on the following grounds:
(Docket No. 11-10 at 7-9).
The Strickland standard applies to claims of ineffective assistance of counsel in the plea bargain context. See Hill v. Lockhart, 474 U.S. 52, 57-58, 59 (1985) ("The . . . `prejudice,' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process"); see also Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012) (holding that a defendant must show the outcome of the plea process would have been different with competent advice).
In Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012), the Supreme Court held that the Sixth Amendment right to counsel is violated when a defendant receives a harsher sentence as a result of his or her attorney's constitutionally deficient advice to reject a plea bargain. 132 S.Ct. at 1390-91. To establish a Sixth Amendment violation,
132 S.Ct. at 1385 (emphasis added).
Because Lafler was decided before the Colorado Court of Appeals issued its December 11, 2014 opinion in Pasillas-Sanchez II, it is the "clearly established law" that governs the Court's review of Applicant's IAC claim under § 2254(d)(1). See Greene, 132 S.Ct. at 44 ("clearly established law" under § 2254(d)(1) refers to the law that existed at the time of the relevant state-court decision).
The Colorado Court of Appeals rejected Applicant's claim under the prejudice prong of the Strickland inquiry, on the basis that Applicant had not alleged facts to show that the trial court would have accepted a plea agreement after the case went to the jury for deliberations. Although the Colorado Court of Appeals did not rely expressly on Lafler, this Court does not presume that the state appellate court was unaware of the Supreme Court's decision. See Woodford, 537 U.S. at 24 (stating that the federal habeas court applies a "presumption that state courts know and follow the law."). Indeed § 2254(d)'s `highly deferential standard for evaluating state-court rulings' . . . demands that state-court decisions be given the benefit of the doubt." Id. See also Early v. Packer, 537 U.S. 3, 8 (2002) ("[AEDPA] does not require citation of our cases-indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them."). The federal court should neither engage in hyper-technical analysis nor require "formulary statement[s]" that ignore "the fair import of the [state court's] opinion." Packer, 537 U.S. at 9. Instead, the task of the federal habeas court is to determine what standard the state court actually applied to resolve the petitioner's claim. See Lafler, 132 S.Ct. at 1390.
The Colorado Court of Appeals' decision implicitly recognized the Supreme Court's holding in Lafler that to show prejudice in connection with the rejection of a plea offer, the habeas petitioner must demonstrate that the trial court would have accepted a plea agreement. The state court record does not contain any information to suggest that the trial court would have accepted a plea agreement entered into at the conclusion of a four week trial, when the case had been submitted to the jury. And, review of a state court decision under § 2254(d)(1) is limited to the record before the state court. See Pinholster, 563 U.S. at 181. See also Calvert v. Dinwiddie, No. 11-5044, 461 F. Appx 729, 734 (10
In sum, the Court finds that the state appellate court's decision was not contrary to, or an unreasonable application of, Lafler, nor was the decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, Applicant is not entitled to federal habeas relief for his IAC claim premised on Applicant's rejection of a plea offer made during jury deliberations.
Applicant argued in his state post-conviction motion that defense counsel coerced his decision not to testify because
The state trial court rejected this claim on the ground that Applicant made a knowing, intelligent and voluntary decision not to testify, as evidenced by his statements on the record to the trial court following the three Curtis advisements.
In Pasillas-Sanchez II, the Colorado Court of Appeals rejected Applicant's IAC claim on the following grounds:
(Docket No. 11-10 at 10-12).
The Supreme Court has recognized that "the representations of the defendant, his lawyer, and the prosecutor at [a court] hearing, as well as any findings made by the judge . . ., constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Further, "[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. at 74. See also Kidwell v. Martin, No. 12-5042, 480 F. App'x 929, 934 (10
Applicant did not submit a sworn affidavit to the state court to support his assertions in the state post-conviction proceeding that defense counsel coerced him into not testifying. Instead, he relied in the state court proceeding, and in this federal habeas proceeding, on unsupported, self-serving allegations. Applicant's allegations do not constitute clear and convincing evidence to rebut the state appellate court's factual findings that his decision not to testify was knowing, intelligent and voluntary. See Bryson v. Ward, 187 F.3d 1193, 1204 (10
Moreover, even if defense counsel "strongly urged [Applicant]" not to testify, that conduct is proper where the attorney believes that action is the best course. See Nicholls v. Bigelow, 558 F. App'x 778, 787 (10
The Court finds that the Colorado Court of Appeals' resolution of Applicant's claim was consistent with Strickland and was reasonable in light of the colloquy between the trial judge and Applicant, which reflects that Applicant knowingly, intelligently and personally waived his right to testify. As such, Applicant is not entitled to habeas relief for claim eight.
For his tenth claim, Applicant contends that his Sixth Amendment right to the effective assistance of counsel was violated because counsel denied Applicant access to discovery materials. (Docket No. 1 at 11).
Applicant argued in his state post-conviction proceeding that "[t]rial counsel provided deficient representation by failing to review discovery with Mr. Pasillas-Sanchez so that he could understand what evidence was against him and participate with his defense." (Docket No. 11-8 at 27-29).
In Pasillas-Sanchez II, the Colorado Court of Appeals addressed the claim as follows:
(Docket No. 11-10 at 15-16).
The Court finds that the state appellate court's resolution of Applicant's claim was consistent with Strickland because conclusory assertions, without supporting factual allegations, are insufficient to state a claim for relief. See Cummings, 506 F.3d at 1228-29, 1233-34. Applicant therefore is not entitled to federal habeas relief for claim ten.
In the § 2254 Application, Applicant asks the Court to "conduct such hearings as may be required, and upon hearing, grant Applicant relief from his unlawful convictions and sentences." (Docket No. 1 at 14). The Court construes this request liberally as a request for an evidentiary hearing.
Where a state habeas petitioner has presented his claims to the state courts and the federal habeas court has determined that he is not entitled to relief under § 2254(d), there is no basis for the federal court to grant an evidentiary hearing. See Pinholster, 563 U.S. at 181-82. See also Sanchez v. State of Wyoming, No. 13-8077, 577 F. App'x 883, 885 (10
Because the claims asserted in the § 2254 Application were resolved on the merits by the Colorado Court of Appeals, and this Court has determined, pursuant to § 2254(d)(1) and (2), that the state appellate court's resolution of the claims was not contrary to, or an unreasonable application of clearly established Federal law, and was reasonable in light of the evidence presented in the state court proceeding, Applicant is not entitled to an evidentiary hearing.
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Docket No. 1), filed, pro se, by Applicant, Cesar Pasillas-Sanchez, on July 29, 2015, is DENIED and this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that no certificate of appealability shall issue because Applicant has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. ` 1915(a)(3) that any appeal from this order would not be taken in good faith See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
