LEWIS T. BABCOCK, Senior District Judge.
This matter is before me on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, ECF No. 1, filed pro se by Applicant Terry Gay. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenges the validity of Applicant's criminal conviction in Case No. 2005CR1114 in the Jefferson County District Court in Golden, Colorado.
In Applicant's direct appeal the Colorado Court of Appeals (CCA) summarized the background of Applicant's criminal case as follows:
People v. Gay, No. 06CA1615, 1-2 (Colo. App. Nov. 24, 2010); ECF No. 11-5 at 4-5. The Colorado Supreme Court (CSC) denied Applicant's petition for certiorari review of the CCA's denial of his direct appeal. ECF No. 11-7. The CCA denied Applicant's Rule 35(c) postconviction motion on appeal, and the CSC denied Applicant's petition for certiorari review. See ECF Nos. 11-11 and 11-13. Applicant filed a § 2254 action in this Court on September 26, 2016, that sets forth eight claims. ECF No. 1.
On November 3, 2016, Magistrate Judge Gordon P. Gallagher directed Respondents to file a Pre-Answer Response and to address the affirmative defenses of timeliness under 28 U.S.C. § 2254(d), and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A), if Respondents intended to raise either or both in this action.
Respondents filed a Pre-Answer Response, ECF No. 11, on November 22, 2016, and Applicant filed a Reply, ECF No. 12, on December 15, 2016. Magistrate Judge Gallagher reviewed the Pre-Answer Response and the Reply, and filed an Order to Supplement Pre-Answer Response that directed parties to address available state court remedies. ECF No. 13. Applicant and Respondents briefed the available remedies issues and on October 27, 2017, I entered an Order for Answer in Part, Dismissal in Part, and State Court Record, ECF No. 26. The October 27 Order dismissed Claims Four through Nine and directed Respondents to file an answer that addresses the merits of subparts (a) and (b) of Claim One and Claims Two and Three. ECF No. 26 at 19.
The remaining claims for review on the merits are as follows:
Respondents filed an Answer, ECF No. 27, on November 27, 2017, addressing the remaining claims on the merits. Applicant filed a Reply, ECF No. 30, on December 29, 2017. After reviewing the Application, the Answer, the Reply, and the state court record, I conclude that the Application should be denied and the case dismissed with prejudice for the following reasons.
Applicant is proceeding pro se. I, therefore, review the Application liberally and hold the pleading "to a less stringent standard than those drafted by attorneys." Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts that have not been alleged, or that a respondent has violated laws in ways that an applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002).
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). 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 (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. (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." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
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, I "owe 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, I "must uphold the state court's summary decision unless [my] independent review of the record and pertinent federal law persuades [me] 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. "This `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
I review 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 a 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). If there is no clearly established federal law, that is the end of my inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, I 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.
My 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. The Supreme Court has also stated:
Richter, 562 U.S. at 101 (internal quotation marks omitted). In conducting this analysis, I "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, 563 U.S. 170, 181 (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.
I review 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 a 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), I 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, my 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, [I] 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 I conclude 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 [I am in] in virtual equipoise as to the harmlessness of the error." O'Neal, 513 U.S. at 435.
I make this harmless error determination based upon a thorough review of the 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, 02d702d7 U.S. 02d702d7, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, I 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).
Applicant asserts that the trial court admitted evidence that Applicant had been accused of a shooting in Denver a week prior to the shooting in this case. ECF No. 1 at 12. Applicant further asserts that the trial court ruled the evidence was admissible to show knowledge, motive, mens rea, and identity, which was for purposes other than those urged by the prosecution. Id. Applicant states that he asked the trial court to reconsider the ruling and requested recusal, which the court denied, and evidence of the shooting was admitted at trial. Id.
Applicant contends that the trial court violated his rights when it sua sponte advocated for the admission of the Denver shooting for the purpose of establishing identity, a purpose not supported by the prosecution. ECF No. 1 at 15. Applicant further contends that the trial court admitted evidence against Applicant that was not very probative of identity in this case because it was not "similar enough." Id. Applicant also contends that because it is reasonable to question the judge's lack of impartiality the trial court erred in denying Applicant's motion to recuse. Id. Applicant further states that the trial court, without making findings, or conducting any analysis, admitted the evidence for the purposes of establishing intent, deliberation, and identity, which the prosecution failed. Id.
Applicant also contends that the trial court relied on a witness's description of the shooter in the Denver shooting, which matched the description by witnesses in this case, in his decision to allow the evidence. ECF No. 1 at 16. Applicant argues that the fact the witness at the Denver shooting described the same unique features as the witnesses in the instant case does not result in it being more probable that Applicant was the shooter in the instant case or acted with deliberation or intent. Id. Applicant concludes that trial court erred in focusing on the purposes for the Denver shooting without considering whether the Denver shooting had any logical relevance to the instant case, separate from the inference of bad character. Id. Applicant also concludes that admitting the evidence allowed the jury to consider evidence that he was a drug dealer. Id.
The CCA addressed this claim as follows:
Gay, No. 06CA1615, at 9-10; ECF No. 11-5 at 12-13.
The Due Process Clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. See Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). It is generally recognized, however, that "due process compels recusal only when the biasing influence is so strong that the court may presume actual bias." United States v. Mansoori, 304 F.3d 635, 667 (7th Cir. 2002) (quotation marks and citations omitted), cert. denied, 538 U.S. 967 (2003). An accusation of bias grounded in prior judicial rulings against a party almost never demonstrates partiality requiring a judge's recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994).
"[N]ot `[a]ll questions of judicial qualification . . . involve constitutional validity. Thus, matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion." See Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820 (1986) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)). Under this standard, only a few situations have been found where a judge's impartiality might be so impaired as to violate due process, and these situations include a showing of actual bias, In re Murchison, 349 U.S. 133, 136 (1955), or where the judge has a direct financial interest in the outcome of the case, Tumey, 273 U.S. at 523. Beyond these narrow circumstances, the requirements for recusal are normally governed by statute. Aetna, 475 U.S. at 820.
The review under Colorado law for judicial disqualification of a judge is limited as well. Under Colo. Rev. Stat. § 16-6-201(1) the standards for evaluating a motion for a change of judge are as follows:
Affidavits of disqualification must allege personal rather than judicial bias, must show facts indicating the existence of the personal bias, and they must include more than mere conclusions. United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976).
Because the CCA found that Applicant's claims pertain only to rulings by the trial judge and his affidavits failed to present objective evidence of personal bias and prejudice, and because the claim Applicant has presented in this Court fails to assert any facts that indicate the existence of the trial judge's personal bias and prejudice, Applicant has not shown a bias influence so strong that the court may presume actual bias in violation of his due process rights.
The CCA's decision regarding Claim 1(a) is not contrary to or an unreasonable application of clearly established rule of federal law or an unreasonable determination of the facts in light of the evidence presented to the state court. I, therefore, find that Applicant is not entitled to relief in the recusal claim.
Further, I take note that Applicant fails to assert a denial of due process regarding the admission of the previous shooting evidence. The CCA addressed this issue as follows:
Gay, No. 06CA1615, at 3-8; ECF No. 11-5 at 6-11.
As a general rule, federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). The question is whether, "considered in light of the entire record, its admission resulted in a fundamentally unfair trial." Knighton v. Mullin, 293 F.3d 1165, 1171 (10th Cir. 2002) (citing McGuire, 502 U.S. at 67-68)). Federal courts may only interfere with state evidentiary rulings when the rulings in question are "so unduly prejudicial that it renders the trial fundamentally unfair. . . ." See Lott v. Trammell, 705 F.3d 1167, 1190 (10th Cir. 2013) (quoting Payne v. Tennessee, 501 U.S. 808, 825 (1991)); see also Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (state court rulings on the admissibility of evidence are not questioned in federal habeas actions unless they "render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.") (internal quotations marks and citations omitted).
The Tenth Circuit "will not disturb a state court's admission of evidence of prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that the admission denies the defendant due process of law." Hancock v. Trammell, 798 F.3d 1002, 1038 (10th Cir. 2015) (quoting Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir. 1998).
As stated above, Applicant argues that the fact the witness at the Denver shooting described the same unique features as the witnesses in the instant case does not support a finding that it is more probable that Applicant was the shooter in the instant case or acted with deliberation or intent. Applicant also concludes that the trial court erred in focusing on the purposes for the Denver shooting without considering whether the Denver shooting had any logical relevance to the instant case, separate from the inference of bad character. Id. Applicant also concludes that admitting the evidence allowed the jury to consider evidence that he was a drug dealer.
Nothing in the state court record indicates that the admission of the Denver shooting evidence was so prejudicial that Applicant was denied due process.
First, in response to the parties' colloquy regarding the relationship of the Denver shooting to the shooting at issue in this case, the trial court determined as follows:
Gay, No. 05CR1114, June 16, 2006 Trial Tr. at 10-11. The trial court further indicated that if the prosecution uses the Denver shooting to present or argue propensity the court would address the issue at the time of question. Id. at 11.
Second, the jury was instructed by the trial judge, regarding Daniel Lynch's testimony, the victim of the Denver shooting, as follows:
June 16, 2006 Trial Tr. at 204.
Jurors are presumed to follow the instructions given by the judge. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citation omitted). The trial judge repeated the limiting instruction prior to defense counsel's cross-examination of Mr. Lynch. See id. at 232-33.
Furthermore, Applicant's attorney had the opportunity to cross-examine Mr. Lynch, during which the defense questioned him about his (1) identification of Applicant, along with other individuals, as the shooter; (2) criminal background; (3) inconsistent prior statements about the shooting; and (4) credibility. See id. at 233-51, 259-72. Applicant's Denver shooting claim is speculative at best.
The CCA's decision regarding Claim 1(b) is not contrary to or an unreasonable application of clearly established rule of federal law or an unreasonable determination of the facts in light of the evidence presented to the state court. The Court, therefore, finds that Applicant is not entitled to relief in the Denver shooting claim.
Applicant asserts that the trial court erred in admitting the "need to get my gun" statements under the guise of impeachment. ECF No. 1 at 17. Applicant further asserts that the prosecution was allowed to impeach a witness based on his direct examination, even though the witness did not make any contradictory statement to a detective. Id. at 18.
The CCA addressed this claim as follows:
Gay, No. 06CA1615 at 10-15; ECF No. 11-5 at 13-18.
Upon review of the state court record, I find that if the trial court erred in allowing the prosecution to challenge AR's previous statement to the investigators during cross-examination, because they were outside the scope of his direct examination and not admissible as a prior inconsistent statement under CRE 613 or section 16-10-201, the error was harmless.
As stated above, under Brecht, a constitutional error does not warrant habeas relief unless I conclude 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.
Nothing in the trial transcript of AR's testimony, June 21, 2006 Trial Tr. at 44-99, supports a finding that the "[D]o I need to go out and get my gun?" reference had a substantial and injurious effect on the jury's verdict. As found by the CCA, the reference did not corroborate or contradict the record of the victim's shooting, Gay's ownership of a weapon, or his presence at both the Denver and Jefferson County shootings.
Applicant fails to demonstrate that the decision of the CCA is either contrary to or an unreasonable application of clearly established federal law. Applicant is not entitled to relief pursuant to § 2254 unless he can demonstrate a violation of his federal constitutional rights regarding AR's testimony, which he has failed to do. See McGuire, 502 U.S. at 67-68; Knighton, 293 F.3d at 1171. Applicant, therefore, is not entitled to relief with respect to this inadmissible testimony claim.
Applicant asserts that an investigator, who interviewed the prosecutor's key witness, testified that witnesses normally do not state the same details in court from when they were interviewed. ECF No. 1 at 19. Applicant argues that this testimony told the jury that the witness should be believed despite the inconsistencies between his interview and his testifying. Id. Applicant, therefore, concludes that the trial court erred in allowing this inadmissible opinion testimony. Id.
The CCA addressed this claim as follows:
Gay, No. 06CA1615 at 15-16; ECF No. 11-5 at 18-19.
As stated above, federal habeas corpus relief, generally, does not lie to review state law questions about the admissibility of evidence. See McGuire, 502 U.S. at 67-68. The question is whether, "considered in light of the entire record, its admission resulted in a fundamentally unfair trial." Knighton, 293 F.3d at 1171 (citation omitted). Federal courts may only interfere with state evidentiary rulings when the rulings in question are "so unduly prejudicial that it renders the trial fundamentally unfair. . . ." See Lott, 705 F.3d at 1190 (citation omitted); see also Tucker, 883 F.2d at 881 (state court rulings on the admissibility of evidence are not questioned in federal habeas actions unless they "render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.") (internal quotations marks and citations omitted).
A review of Mr. Peterson's testimony supports the CCA findings. First, on cross-examination by defense counsel, Mr. Peterson was questioned regarding what Mr. Moghadam had stated during the interview after the shooting took place, which was directed to inconsistencies between Mr. Moghadam's statements made during the interview and when he testified. June 14, 2016 Trial Tr. at 219-226. On redirect the court allowed the prosecution to ask Mr. Peterson if witnesses he interviews provide the same details when they testify. June 14, 2016 Trial Tr. at 236. Mr. Peterson stated witnesses do not, but he agreed that the better person to testify is the witness and not the investigator. Id.
Sean Moghadam testified prior to Mr. Peterson testifying. See June 13, 2006 Trial Tr. at 228-315; June 14, 2006 Trial Tr. at 4-79. In cross-examination, Mr. Moghadam acknowledged some of the inconsistencies between his testimony on direct and the report. June 14, 2006 Trial Tr. at 4-37. Mr. Moghadam indicated that what was written down was a misunderstanding of what he was telling the detective who wrote the report. Id. Defense counsel attacked Mr. Moghadam's inconsistent statements in his trial testimony regarding where and when several fights took place, who was involved, and his position at the time the shooting took place. See id. at 4-48 and 75-79. Mr. Moghadam, however, was emphatic throughout his testifying that Applicant shot the victim.
Mr. Peterson's testimony did not tell the jury what result to reach or specifically address Mr. Moghadam's honesty. Considered considering the entire record, Mr. Peterson's "no" response to the prosecution's question whether witnesses provide the same details or facts at trial as they do in a pretrial investigative interview was not so unduly prejudicial that it rendered the trial fundamentally unfair.
Applicant fails to demonstrate that the decision of the CCA is either contrary to or an unreasonable application of clearly established federal law. Applicant is not entitled to relief pursuant to § 2254 unless he can demonstrate a violation of his federal constitutional rights regarding Mr. Peterson's testimony, which he has failed to do. See McGuire, 502 U.S. at 67-68; Knighton, 293 F.3d at 1171. Applicant, therefore, is not entitled to relief with respect to this inadmissible testimony claim.
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). To establish that counsel was ineffective, Applicant must demonstrate both that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance resulted in prejudice to his defense. See id. at 687. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. "A court considering a claim of ineffective assistance must apply a `strong presumption' that counsel's representation was within a `wide range' of reasonable professional assistance." United States v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011) (quoting Richter, 562 U.S. at 104 (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 "reasonably considering all the circumstances." Pinholster, 563 U.S. at 189 (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).
Applicant asserts that trial counsel failed to conduct a sufficient investigation into the pending Denver case by not (1) interviewing alibi witnesses; and (2) speaking with Applicant's appointed counsel in the Denver case. ECF No. 1 at 20. Applicant contends trial counsel instead conceded that the prosecution had established by a preponderance of the evidence the Denver shooting likely was committed by Applicant. Id. Applicant further contends that the verdict was only weekly supported by the record, and as a result trial counsel's failure to conduct a reasonable investigation more likely affected the outcome of the trial. Id.
Applicant further asserts that trial counsel offered no strategic justification for not (1) going to the scene of the incident; (2) interviewing any of the twenty plus eyewitnesses; (3) interviewing the alternate suspect; (4) independently testing forensic evidence from the gunshot residue test; (5) interviewing associates of the alternate suspect or another individual who had engaged in "battle rapping" with the victim at the time of the incident; and (6) providing ballistics evidence of the trajectory and proximity of the gunfire at the time of the shooting. ECF No. 1 at 21. Applicant contends that testimony and facts, apparently that would have been established as a result of the investigation referred to above, would have been material and favorable. Id.
The CCA addressed this claim as follows:
People of the State of Colo., No. 14CA0698, 5-6 (Colo. App. Oct. 15, 2015); ECF No. 11-11 at 7-8.
"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) (citation 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. (citation and 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.
Even if trial counsel was ineffective, as Applicant suggests in the Reply, regarding the lack of investigation, Applicant fails to assert how he was prejudiced by counsel's conduct. Applicant does not assert what trial counsel would have discovered if he had performed the suggested investigation.
Therefore, considering the evidence presented in the state court proceedings, the CCA's determination was reasonable. The factual findings relied on by the trial court are presumed correct in this federal habeas proceeding and are supported by the state court record.
Because Applicant does not point to any clear and convincing evidence to the contrary, see 28 U.S.C. § 2254(e)(1), I find that Applicant has not demonstrated a reasonable probability that, but for counsel's unprofessional errors in investigating the issues noted above, the result of the proceeding would have been different, Pinholster, 563 U.S. at 189.
Applicant asserts that trial counsel's substantial workload interfered with counsel's ability to (1) conduct a full investigation into the facts, including interviews with material witnesses; (2) make strategic decisions based on sufficient information; (3) meet or communicate with Applicant; and (4) consider all available procedural steps, including change of venue, motion for severance regarding possession of weapon, and subpoenaing critical witnesses. ECF No. 1 at 21-22. Applicant further asserts that trial counsel did not keep him informed of the developments in the case and progress in preparing the defense, which affected Applicant's decision to testify or to not testify. Id.
Applicant raised this claim in his appeal of the denial of his Rule 35(c) postconviction motion by the trial court. The CCA, however, did not specifically address this claim. Nonetheless, for the same reasons stated above in addressing Applicant's investigations claim, this claim lacks merit.
Thus, there is reasonable argument that trial counsel satisfied the Strickland deferential standard. Even if trial counsel were found to have acted unreasonably in not conducting the suggested investigations, Applicant fails to assert he was prejudiced by counsel's failure to do so. Nothing Applicant asserts demonstrates a reasonable likelihood that the result of the trial would have been different. Richter, 562 U.S. at 111. Applicant has failed to present clear and convincing evidence that if trial counsel's workload had not been overwhelming, the result of the proceeding would have been different.
Applicant asserts that trial counsel was ineffective in his evaluation of the potential jurors' competence and in assuring the jury was impartial. ECF No. 1 at 22. Applicant contends that trial counsel's failure to conduct a reasonable investigation, review material evidence, and discuss strategy with Applicant prevented counsel from adequately examining potential jurors. Id.
For the same reasons that Applicant's lack of investigation claim is denied this claim is denied.
Thus, there is reasonable argument that trial counsel satisfied the Strickland deferential standard. Even if trial counsel were found to have acted unreasonably in not adequately examining potential jurors, Applicant fails to assert he was prejudiced by counsel's failure to do so. This claim is highly speculative and even if considered does not demonstrate that there was a reasonable likelihood that the result of the trial would have been different. Richter, 562 U.S. at 111.
Applicant has failed to present clear and convincing evidence that trial counsel was ineffective in failing to adequately determine the competency of prospective jurors.
I find that the state court's decision to dismiss Applicant's ineffective assistance of trial counsel claim 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. Claim Three lacks merit and will be denied.
For the foregoing reasons, it is
ORDERED that the Application, ECF No. 1 is DENIED and the action is DISMISSED with prejudice. It is
FURTHER ORDERED that the issuance of a Certificate of Appealability pursuant to 28 U.S.C. § 2253(a) is denied. Applicant has not made a substantial showing of the denial of a constitutional right such that reasonable jurists could disagree as to the disposition of his petition pursuant to the standards of Slack v. McDaniel, 529 U.S. 473, 484 (2000). See 28 U.S.C. § 2253(c)(2). It is
FURTHER ORDERED that it is certified pursuant to 28 U.S.C. § 1915(a)(3) any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505.00 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.
