WILLIAM J. MARTINEZ, District Judge.
Plaintiff Raymond Armelino ("Armelino") is a parolee in the custody of the Colorado Department of Corrections ("CDOC"). Armelino seeks a writ of habeas corpus under 28 U.S.C. § 2254, claiming that certain alleged errors during his trial in state court rendered his subsequent conviction unconstitutional. (ECF No. 1.) On February 10, 2017, United States Magistrate Judge Kristen L. Mix issued a recommendation that the Court deny Armelino's request ("Recommendation"). (ECF No. 39.) Armelino has filed an objection ("Objection"). (ECF No. 50.) Defendants filed no response.
For the reasons set forth below, the Court agrees with the Magistrate Judge that Armelino is not entitled to habeas relief. Accordingly, his application for such relief is denied and this matter is terminated.
Armelino was a physical therapist accused of various forms of sexual assault. Specifically, when treating a teenage female patient ("M.P."), he employed a muscle release technique that involved contact with the pectoral muscles, but Armelino allegedly went beyond the legitimate scope of the technique and instead fondled M.P.'s breasts. As summarized by the Colorado Court of Appeals,
(ECF No. 9-9 at 2-4 (citations omitted).)
Armelino seeks a writ of habeas corpus under 28 U.S.C. § 2254(d):
This statutory scheme can be broken out into a series of questions:
The Court will analyze these questions in turn, many of which raise sub-questions of their own.
First, is Armelino in custody pursuant to the judgment of a state court? Armelino was in CDOC custody as of the date he filed his petition on November 30, 2015. (See ECF No. 48 at 2.) This "is all the `in custody' provision of 28 U.S.C. § 2254 requires." Spencer v. Kemna, 523 U.S. 1, 7 (1998). Moreover, his release to "indeterminate parole" on January 18, 2017 does not moot his petition: "An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Id. Thus, Armelino is in custody and his § 2254 petition remains ripe for adjudication.
However, Armelino "transferred his parole to New York on March 7, 2017." (ECF No. 48 at 2.) Thus, he is in some sense now in the custody of New York authorities. No party has raised this issue, but the Court finds that it poses no obstacle. "[T]he location of a collateral attack is best understood as a matter of venue, which means that both waiver and forfeiture are possible." Moore v. Olson, 368 F.3d 757, 758 (7th Cir. 2004). Here, the State has failed to object in any way to continuing venue in this Court. Furthermore, Armelino challenges the validity of his conviction by a Colorado court for a Colorado crime. If this Court were to grant any relief, Colorado (not New York) would be required either to retry Armelino or to expunge his conviction. Thus, the District of Colorado remains the proper venue.
Next, did Armelino present his claims in Colorado post-conviction proceedings? Armelino asserts three claims for relief. (ECF No. 1 at 20-32.) The State conceded that Armelino's first and third claims had been properly exhausted through Colorado's post-conviction process. (ECF No. 9 at 8, 10.) The State asserted that Armelino's second claim had not been exhausted (id. at 9-10), but Magistrate Judge Gordon P. Gallagher—who was assigned to this case before Judge Mix—ruled to the contrary. (ECF No. 10 at 6-7.) The State has not contested that ruling, but whether or not it was correct, it is now irrelevant because Armelino's Objection asserts only his first and third claims. (ECF No. 50 at 1.) He has therefore abandoned his second claim. Thus, as to all claims still at issue, the parties agree that Armelino properly presented them to the Colorado courts.
Whether a state court decision contradicted or unreasonably applied clearly established federal law requires several inquiries of its own.
First, does the petitioner seek 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. More specifically,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).
Assuming clearly established law is at stake, the next question is 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 (internal quotation marks and citations omitted; certain alterations incorporated).
This 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 v. Boone, 468 F.3d 665, 671 (10th Cir. 2006).
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted; certain alterations incorporated).
"[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (internal quotations marks omitted). 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.
With these standards in mind, the Court turns to Armelino's two remaining claims for relief.
Armelino's defense strategy was to avoid implying that M.P. had deliberately lied about the extent of Armelino's touching. Rather, Armelino intended to present evidence that M.P. had misperceived Armelino's limited touching as more extensive and intrusive than it actually was. (See, e.g., ECF No. 23, May 4, 2007 Tr. at 68; May 25, 2007 Tr. at 200.) One path by which the jury might draw that inference was through expert testimony regarding the possibility that Armelino's pectoral release technique, as legitimately applied, could cause referred sensation elsewhere on the breast, including the nipple. (See id., May 22, 2007 Tr. at 215.) Armelino in fact presented this testimony to the jury. (See id., May 24, 2007 Tr. at 211-12.)
Armelino was prevented, however, from offering a second path. Through pretrial proceedings, Armelino learned that M.P. had likely been sexually assaulted twice previously, once as a very young child and once quite recently before the physical therapy sessions that led to the charges against him. As to the second of the two previous assaults, M.P. had no memory of the event other than going on a date with a particular boy and then being found the next morning by her mother in the passenger seat of her mother's van, upside down and naked save for her shirt wrapped around her neck. (ECF No. 22, Court File at 0085.) She also reported "dirt covered all over [her] and cum [i.e., semen] everywhere." (Id.) Given this, Armelino hoped to introduce expert testimony from a clinical psychologist that, based on his review of M.P.'s sexual assault history, she likely suffers from post-traumatic stress disorder ("PTSD"); and, as a result, M.P. had likely become hypervigilant to potential sexual contact. (Id. at 0086-88.)
Colorado has a rape shield statute declaring that a "victim's or a witness's prior or subsequent sexual conduct" is "presumed to be irrelevant" at trial, and requiring that any party seeking to introduce such evidence must make a written pretrial proffer to the trial court for a ruling on its admissibility. See Colo. Rev. Stat. § 18-3-407(1), (2). The Colorado Supreme Court has construed this statue to apply to nonconsensual sexual contact. People v. Weiss, 133 P.3d 1180, 1185 (Colo. 2006). Accordingly, Armelino submitted the required proffer, explaining the expected testimony from the clinical psychologist. (ECF No. 22, Court File at 0084-88.) The trial court rejected the proffer, reasoning that Armelino had not overcome the presumption of irrelevance, and that the proffered testimony would be otherwise excludable under Colorado Rule of Evidence 403 (which is materially identical to Federal Rule of Evidence 403):
(ECF No. 23, May 4, 2007 Tr. at 69-70.)
Armelino apparently challenged this ruling on direct appeal—no party argues that he failed to do so—and he presented it again in state postconviction proceedings. The Court has not located the state trial court's postconviction ruling on this question, but the Colorado Court of Appeals rejected it for two reasons.
First, said the Court of Appeals,
(ECF No. 9-4 at 11-12.) This reasoning is difficult to follow. The court states that "the victim's perception of defendant's intent was not the issue" but it goes on to acknowledge that Armelino's intent was "the issue" and that other evidence supported a finding that Armelino possessed the relevant intent. The latter proposition may be true, but it does not explain why the victim's own perception is somehow irrelevant—indeed, it would seem to be highly relevant. Moreover, evidence that M.P. could have misperceived Armelino's intent is interconnected with whether her alleged hypervigilance could have caused her to misperceive the physical extent of Armelino's touching.
As it turns out, however, the Court of Appeals's second reason for rejecting Armelino's argument essentially covers this possibility:
(ECF No. 9-4 at 12.)
Deeming the psychological evidence "cumulative" severely discounts its actual value. Armelino was in a difficult situation. Given that M.P. was a teenager at the time of the alleged offense and Armelino was a middle-aged man, a basic false-accusation defense would have been, in nearly all circumstances, unwise. Armelino instead needed to give the jury a reason to disbelieve M.P. without impugning her character, i.e., without requiring the jury to conclude that M.P.'s accusations were deliberate lies. Armelino's evidence that the muscle release technique could refer sensation to the nipples was one part of that strategy. The other part was the expert testimony tending to show M.P.'s likelihood for hypervigilance as to potential sexual contact. Each part independently, and particularly both parts combined, could have led a jury to accept Armelino's theory that M.P.'s accusations flowed from a good faith misperception—but a misperception nonetheless—of what Armelino had actually done.
Even so, the question is not whether this Court would, in the first instance, have made the same ruling as the trial court or the Colorado Court of Appeals. Rather, this Court must ask whether those courts contradicted or unreasonably applied clearly established federal law as declared by the Supreme Court. In this case, the Supreme Court itself has answered that question, explicitly declaring that it has never clearly established the law applicable to these circumstances. The relevant decision is Nevada v. Jackson, 133 S.Ct. 1990 (2013).
Calvin Jackson was charged in Nevada state court with raping and otherwise assaulting his former girlfriend. Id. at 1990-91. Jackson's defense was that the former girlfriend
Id. at 1991. The trial court's ruling was motivated by a Nevada statute that "is akin to the widely accepted rule of evidence law that generally precludes the admission of evidence of specific instances of a witness'[s] conduct to prove the witness'[s] character for untruthfulness." Id. at 1992-93.
The jury found Jackson guilty, and he was sentenced to life imprisonment. Id. at 1991. Jackson appealed to the Nevada Supreme Court, arguing "that the trial court's refusal to admit extrinsic evidence relating to the prior incidents [i.e., the police reports, or testimony from the police officers themselves] violated his federal constitutional right to present a complete defense." Id. The Nevada Supreme Court disagreed, and Jackson then exhausted his state postconviction remedies, followed by a § 2254 petition in federal court. Id. at 1991-92. The federal district court denied relief but the Ninth Circuit reversed. Id.
The Ninth Circuit's outcome rested on an assumption that the Supreme Court had clearly established a general constitutional right to present a complete defense:
688 F.3d 1091, 1096 (9th Cir. 2012) (parallel citations omitted). The Ninth Circuit then invoked two of its own recent decisions in which it had ordered § 2254 relief based on a state court's refusal to permit cross-examination of a victim based on the victim's alleged prior sexual experiences. Id. at 1098-99 (citing and analyzing Fowler v. Sacramento Cnty. Sheriff's Dep't, 421 F.3d 1027 (9th Cir. 2005), and Holley v. Yarborough, 568 F.3d 1091, 1099 (9th Cir. 2009)).
Id. at 1100 n.6 (parallel citations omitted).
Nevada appealed and the Supreme Court unanimously reversed in a per curiam opinion. In particular, the Court rejected the notion that its Confrontation Clause jurisprudence had clearly established the principles applicable to other aspects of the right to present a defense:
133 S. Ct. at 1994 (emphasis in original; parallel citations omitted).
This Court agrees with much of the Ninth Circuit's reasoning in Jackson, and fails to see how its compelling analysis can in any fair way be labeled "imaginative." Unfortunately for Armelino, however, the Supreme Court's ruling controls, and it is fatal to his claim, given that it turns on his ability to introduce extrinsic evidence. The only Supreme Court case Armelino cites to show clearly established law is Olden v. Kentucky, 488 U.S. 227 (1988). (See ECF No. 1 at 21; see also ECF No. 50 at 10.) But the above-quoted portion of Jackson shows that the Supreme Court views Olden as probative only of Confrontation Clause issues, not of the more-general right to present a complete defense.
Moreover, other portions of Jackson's analysis make it difficult for Armelino to argue against the Colorado courts' application of the rape shield statute in his case. "Only rarely have we held," said the Court, "that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence." 133 S. Ct. at 1992. In those rare instances, it has been because the "rule did not rationally serve any discernible purpose," it was "arbitrary," the state "did not even attempt to explain the reason for its rule," or the "rule could not be rationally defended." Id. In addition,
Id. at 1993-94.
Colorado courts have justified the rape shield statute generally, and particularly its extension to prior instances of sexual assault, as a means of preventing unfair embarrassment to the victim. People v. Villa, 240 P.3d 343, 354 (Colo. App. 2009) (in a case involving an attempt to introduce evidence of a prior sexual assault, reasoning that "section 18-3-407 is a rational attempt by the legislature to [among other things] protect the complainant from harassment and humiliation"); People v. Kyle, 111 P.3d 491, 498 (Colo. App. 2004) ("The unfair prejudice that would have resulted from the admission of [evidence of a prior sexual assault], in the form of the victim's humiliation and psychological abuse, is precisely what the statute prohibits."). Moreover, in this case, the trial court excluded Armelino's proffered evidence because it would unduly prolong the trial and perhaps confuse the jury, while the Court of Appeals found it "cumulative" (which is closely connected to prolonging the trial). Thus, it appears that the Colorado courts' various reasons for rejecting Armelino's proffer are essentially unreviewable under the present state of Supreme Court jurisprudence.
As a consequence, the Court is left with no option but to conclude that no clearly established Supreme Court case law could have informed the Colorado courts' decisions, and this Court accordingly may not grant § 2254 relief to Armelino on his claim that he was deprived of his right to a complete defense.
In state postconviction proceedings, Armelino alleged that his defense attorney never informed him, prior to the conviction, that the charges he faced could lead to a mandatory prison sentence of indeterminate length, up to life. (ECF No. 22, Court File at 0262.)
(Id.)
The trial court held an evidentiary hearing on this matter at which Armelino, his defense attorney, and the prosecutor testified, among others. Armelino testified consistent with the argument just quoted, and added that his most important priority was maintaining his relationship with his daughter. Thus, he said, he would have accepted a plea deal that did not involve a mandatory minimum or indeterminate sentence. (ECF No. 23, Aug. 18, 2011 Tr. at 135-37.)
The defense attorney admitted having never discussed the potential sentencing range with Armelino before his conviction, instead assuming that Armelino already knew given that Armelino had spoken with "several attorneys" before hiring him. (ECF No. 23, Aug. 18, 2011 Tr. at 56-58, 81.) The defense attorney further admitted that he first discussed the applicable sentencing range with Armelino in the days after the conviction. (Id. at 59.) The defense attorney otherwise disputed Armelino's version of events. The defense attorney stated that the prosecutor had approached him around the time of arraignment to inquire whether Armelino wanted to engage in plea negotiations, and the defense attorney replied in the negative because Armelino was adamant that he could get the charges dismissed at the forthcoming preliminary hearing. (Id. at 72-73.) According to the defense attorney, Armelino also directed that he could not accept any deal that involved loss of his physical therapist's license or registration as a sex offender. (Id. at 75-78.)
The prosecutor testified that he made no plea offer and that he would not have made any plea offer after the preliminary hearing because his "practice was . . . that if we went to preliminary hearing we were going to go to trial on the case barring a plea to the charges as charged"—a practice from which he had deviated only once, where the victim's extreme drug abuse made her unable to testify. (ECF No. 23, Aug. 19, 2011 Tr. at 37-39.) When asked if he would have considered a plea deal involving a determinate sentence, he answered, "I doubt it . . . barring some sort of issues as far as evidence or something of that nature, unavailability of witnesses, or something like that." (Id. at 39-41.) When asked if he would have considered a plea deal through which Armelino could avoid registering as a sex offender, the prosecutor responded, "Given the information I had on this case and throughout this case, no." (Id. at 42.) When asked if he would have considered a plea deal involving only probation, he replied, "With the information I had and the availability of the case, no." (Id.)
Following the hearing, the trial court issued a written order with its findings and conclusions. In pertinent part, the trial court found against Armelino as follows:
(ECF No. 22, Court File at 0324-25.) The trial court agreed that Armelino's defense attorney had been ineffective to the extent he had failed to advise Armelino of the possible sentencing range(s), but, given the finding that he would never have accepted a realistic a plea offer, "inadequate pretrial performance did not affect the outcome." (Id. at 0326.) The Colorado Court of Appeals found that "the record support[ed]" this finding. (ECF No. 9-9 at 9.)
It has been clearly established by the Supreme Court since 1984 that a defendant has a Sixth Amendment right to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668 (1984). Counsel is ineffective, for Sixth Amendment purposes, when (1) counsel's performance falls below an objective standard of reasonableness, and (2) counsel's deficient performance resulted in prejudice to the defendant. Id. at 687. Prejudice means "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
It has further been clearly established by the Supreme Court since 1985 that this right to effective assistance of counsel can be violated when a defendant chooses to plead guilty based on his attorney's faulty or materially incomplete advice. See generally Hill v. Lockhart, 474 U.S. 52 (1985); see also Padilla v. Kentucky, 559 U.S. 356 (2010) (explicitly extending Hill to defense counsel's failure to inform a defendant about immigration consequences of a guilty plea). It has been clearly established by the Supreme Court since 2012 that the right to effective assistance of counsel is violated when a defendant turns down a plea offer based on faulty advice, Lafler v. Cooper, 566 U.S. 156, 163 (2012); and also, "as a general rule," when defense counsel fails "to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused," Missouri v. Frye, 566 U.S. 133, 145 (2012).
To the extent Armelino argues that, had he known of the possible sentence(s) he faced, he would have instructed his attorney to solicit a plea offer, there was (and remains) no clearly established Supreme Court law. The Supreme Court has never held that defense attorneys have a Sixth Amendment duty to seek a plea offer when so directed by their clients. It seems obvious, at least to the undersigned, that the Supreme Court's existing decisions extend to such situations—but it likewise seemed obvious to the undersigned that the right to present a meaningful defense was a general right as implemented through various portions of the Bill of Rights, not a series of compartmentalized rights for which interpretive Supreme Court precedents must be kept segregated. But see Jackson, supra. Thus, Armelino's second claim fails for lack of a clearly established right as declared by the Supreme Court.
However, Armelino's claim might be fairly characterized as grounded in a rejection of a plea offer based on faulty advice—not rejection of the sort of "formal offer[]" discussed in Frye, 566 U.S. at 145, but at least a rejection of an offer to begin negotiations. There is still a fair question whether any Supreme Court case provides clearly established law to govern this scenario, but it is at least much closer to existing Supreme Court decisions on the question of effective assistance during plea bargaining.
Assuming this is the proper characterization of Armelino's claim and that decisions such as Lafler and Frye provide the proper framework, the Colorado courts understood the proper Constitutional standard under which to evaluate Armelino's claim, namely, a determination of whether Armelino would actually have accepted a plea offer. (See ECF No. 9-9 at 6-9; ECF No. 22, Court File at 0324-26.) Cf. Frye, 566 U.S. at 148 ("where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland's inquiry into whether the result of the proceeding would have been different requires [determining] whether he would have accepted the offer to plead pursuant to the terms earlier proposed" (internal quotation marks and citation omitted)).
For the reasons set forth above, the Court ORDERS as follows:
