O'Conner v. No Respondents Named
Order Adopting And Affirming The April 17, 2012 Recommendation Of The United States Magistrate Judge. IT IS ORDERED that the 1. Applicant's Objection 71 to the Magistrate Judge's April 17, 2012 Recommendation is OVERRULED and the Recom mendation 67 is ADOPTED in its entirety; 2. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 24 is DENIED; 3. Applicant's Claim 2(b) is DISMISSED WITH PREJUDICE; 4.Pursuant to 28 U.S.C. § 1915(a)(3), any a ppeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is DENIED for purpose of appeal. If Applicant files a notice of appeal, he is ordered to pay the full $455 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; and 5. No certificate of appealability shall issue because Applicant has not made a substantial showing of a deprivation of a constitutional right, by Judge William J. Martinez on 6/29/2012. (wjmcd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-01969-WJM-KLM
MICHAEL R. O’CONNOR,
ANGEL MEDINA, Warden, Limon Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER ADOPTING AND AFFIRMING THE APRIL 17, 2012 RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the April 17, 2012 Recommendation by U.S.
Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 67) that Applicant
Michael R. O’Connor’s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 be denied, and that Applicant’s sole claim remaining in this action be dismissed
with prejudice. The Recommendation is incorporated herein by reference. See 28
U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
The facts relevant to a resolution of the Application for a Writ of Habeas Corpus
are detailed in the Recommendation. Briefly, Applicant, proceeding pro se,
commenced the present action pursuant to 28 U.S.C. § 2254 on August 20, 2009.
(ECF Nos. 1-3.) Applicant filed his initial application on August 28, 2009 (ECF No. 10)
and submitted an Amended Application on December 29, 2009 (ECF No. 24). On initial
review, the Court dismissed Applicant’s Claims 1 and 2(a) without prejudice as
unexhausted. (ECF No. 34.)
Applicant’s Claim 2(b), the sole remaining claim, asserts that Applicant’s
appellate counsel was ineffective in violation of Applicant’s constitutional rights by
failing to raise certain claims on direct appeal, including: (1) the admission at trial of
Applicant’s out-of-court statements that were allegedly incomplete and taken out of
context; (2) the trial court’s refusal to admit evidence of the victim’s propensity for
violence; and (3) the trial court’s refusal to grant a mistrial. (Id. at 2.)
On April 17, 2012, the Magistrate Judge issued her Recommendation that the
Application for a Writ of Habeas Corpus be denied and that Applicant’s remaining Claim
2(b) be dismissed with prejudice. (ECF No. 67.) The Magistrate Judge further
recommended that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from the conclusions in the Recommendation would not be taken in good faith
and, therefore, in forma pauperis status should be denied for purpose of appeal. (Id. at
19.) The Magistrate Judge also recommended that no certificate of appealability be
issued by the Court because Applicant has not made a substantial showing of a
deprivation of a constitutional right. (Id.)
On April 30, 2012, Applicant filed a Request for Extension of Time to Respond to
the Recommendation. (ECF No. 68.) The Magistrate Judge granted Applicant’s
Request on May 1, 2012 (ECF No. 70), and Applicant filed a timely Objection to the
Recommendation on June 1, 2012 (ECF No. 71).
For the reasons stated below: (1) the Application for a Writ of Habeas Corpus is
denied and Applicant’s remaining Claim 2(b) is dismissed with prejudice; (2) Applicant’s
in forma pauperis status is denied for purpose of an appeal from this Order; and (3) no
certificate of appealability will be issued.
II. LEGAL STANDARDS
Standard of Review
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the District Court Judge
“determine de novo any part of the magistrate judge’s [recommendation] that has been
properly objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district
court judge may accept, reject, or modify the recommendation; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
Further, in considering the Magistrate Judge’s Recommendation in the instant
case, the Court is also mindful of the Applicant’s pro se status, and accordingly, reads
his pleadings and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, such liberal construction is intended merely to overlook technical formatting
errors and other defects in the Applicant’s use of legal terminology and proper English.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se status does not
relieve Applicant of the duty to comply with various rules and procedures governing
litigants and counsel or the requirements of the substantive law and, in these regards,
the Court will treat Applicant according to the same standard as counsel licensed to
practice law before the bar of this Court. See McNeil v. United States, 508 U.S. 106,
113 (1993); Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994).
28 U.S.C. § 2254
This Court may review an application for writ of habeas corpus “only on the ground
that [an applicant] is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). An application cannot be granted unless it appears
that the applicant has exhausted available state remedies. 28 U.S.C. § 2254(b)(1).
If an applicant exhausts his available state remedies, his application may be
granted only if it is based on an underlying state court decision that (1) is “contrary to . .
. clearly established Federal law, as determined by the Supreme Court,” (2) “involved
an unreasonable application of . . . clearly established Federal law, as determined by
the Supreme Court,” or (3) “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); see
also Trice v. Ward, 196 F.3d 1151, 1159 (10th Cir. 1999). A decision is contrary to
clearly established federal law when it contradicts prior Supreme Court precedent and
arrives at a conclusion that is “diametrically different” from that precedent. Williams,
529 U.S. at 406. A decision involves an unreasonable application of clearly established
federal law when it utilizes the correct legal principle but reaches an “objectively
unreasonable” outcome based on the facts at issue. Id. at 409. However, the Court
“may not issue the writ simply because [it concludes] in [its] independent judgment that
the state court applied the law erroneously or incorrectly. Rather, [the Court] must be
convinced that the application was also ‘objectively unreasonable.’” Van Woudenberg
ex rel. Foor v. Gibson, 211 F.3d 560, 566 n.4 (10th Cir. 2000), overruled on other
grounds by McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001).
In addition, pursuant to this Court’s habeas review, a presumption of correctness
exists regarding state trial and appellate court findings of fact. Sumner v. Mata, 455
U.S. 591, 592-93 (1982). As such, Applicant bears the burden of rebutting this
presumption “by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Houchin
v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997).
If an applicant fails to exhaust available state remedies, a federal court should
dismiss the application without prejudice so that the state remedies may be pursued.
Demarest v. Price, 130 F.3d 922, 939 (10th Cir. 1997). The federal court, however,
should first consider whether the applicant would be able to raise the unexhausted
claims in the state court. Id.
If the state court to which the applicant would be required to present his claims in
order to meet the exhaustion requirement would now find the claims procedurally
barred, the applicant's claims are procedurally defaulted for purposes of federal habeas
corpus relief. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). The federal
court may not consider issues raised in a habeas corpus petition that have been
defaulted in state court on an independent and adequate procedural ground unless the
petitioner can show cause for the default and actual prejudice as a result of the alleged
violation of federal lawm, or can demonstrate that the failure to consider the claims will
result in a fundamental miscarriage of justice. Id. at 750. The determination of cause,
prejudice, and fundamental miscarriage of justice are matters of federal law. See
Demarest, 130 F.3d at 941.
The Magistrate Judge recommends that the Application for a Writ of Habeas
Corpus be denied and that Applicant’s remaining Claim 2(b) be dismissed with
prejudice. (ECF No. 67.) Applicant objects to the Recommendation in its entirety and
reiterates arguments that he made in previous filings with the Court. (ECF No. 71.)
Because Applicant objects to the Recommendation in its entirety, the Court will review
the Recommendation de novo.
Applicant argues that his appellate counsel who represented him in his direct
appeal was ineffective because counsel should have raised the following three
additional issues on direct appeal: (1) the admission at trial of Applicant’s out-of-court
statements that were incomplete and taken out of context; (2) the trial court’s refusal to
admit evidence of the victim’s propensity for violence; and (3) the trial court’s refusal to
grant a mistrial on three separate occasions. (ECF No. 34 at 2.)
Applicant contends that he was deprived of his right to effective assistance of
counsel on direct appeal pursuant to the Fourteenth Amendment. The Sixth
Amendment, applicable to the states through the Fourteenth Amendment, guarantees a
defendant’s right in a criminal proceeding to effective assistance of counsel. See
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (“the Sixth Amendment’s guarantee of
counsel” is “a provision of the Bill of Rights which is fundamental and essential to a fair
trial [and it is therefore] made obligatory upon the [s]tates by the Fourteenth
Amendment”). As such, the Court evaluates Applicant’s claim pursuant to the Sixth
Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const.
amend. VI. This right is violated when a defendant receives ineffective assistance of
counsel. See McMann v. Richardson, 397 U.S. 759, 771 (1970) (“if the right to counsel
guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the
mercies of incompetent counsel”); see also Powell v. Alabama, 287 U.S. 45, 59 (1932)
(when the assistance of counsel “was rather pro forma than zealous and active,” the
“defendants were not accorded the right of counsel in any substantial sense”).
In order for a writ of habeas corpus to issue on a claim of ineffective assistance,
an applicant must prove two elements: (1) “his counsel’s representation fell below an
objective standard of reasonableness,” and (2) his counsel’s “deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To
prove prejudice to a defendant, an applicant must show “that counsel’s errors were so
serious as to deprive [the applicant] of a fair trial, a trial whose result is reliable.” Id.;
see also id. at 686 (“The benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the functioning of the adversarial process
that the trial cannot be relied upon as having produced a just result.”). Moreover, an
applicant “must show that there is 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. at 694. The Court need not address both elements of an ineffective
assistance claim if an applicant fails to make a showing on either one of them. See
Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).
“A claim of appellate ineffectiveness can be based on counsel’s failure to raise a
particular issue on appeal, although it is difficult to show deficient performance under
those circumstances because counsel need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.” Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir.
2003) (internal quotations and citation omitted). “In assessing appellate counsel’s
assistance under Strickland, [the Court must] examine the merits of the omitted
issue[s].” Calvert v. Dinwiddie, No. 11-cv-5044, 2012 WL 414439, at *5 (10th Cir. Feb.
Here, in order to determine whether appellate counsel was ineffective by not
raising the issues described above on direct appeal, the Court reviews the Colorado
Court of Appeals’ Order affirming the denial of Applicant’s first Rule 35(c) motion for an
unreasonable application of federal law or a conclusion that is contrary to federal law.
After such a review, and after thoroughly reviewing the April 17, 2012
Recommendation, the Court agrees with the Magistrate Judge that the Application for a
Writ of Habeas Corpus be should denied and that Applicant’s remaining Claim 2(b)
should be dismissed with prejudice.
First, Applicant claims that the incompleteness of his statements admitted during
trial prejudiced his assertion of self-defense. However, the Court must defer to the
Colorado Court of Appeals’ interpretation of Colorado state law in its determination of
whether Applicant was prejudiced by appellate counsel’s performance because “a state
court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v.
Richey, 546 U.S. 74, 76 (2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)).
Here, the Colorado Court of Appeals properly applied the Strickland standard
and Colorado state law in determining that the admission of what Applicant argues
would have been complete statements would not have resulted in a different conclusion
on direct appeal. (ECF No. 10 at 18-21.) As such, the Court finds that the Colorado
Court of Appeals’ application of Strickland to Applicant’s first alleged error by appellate
counsel was not contrary to or an unreasonable application of clearly established
federal law. Therefore, Applicant’s first allegation of error lacks merit.
Next, Applicant asserts that the trial court’s refusal to admit evidence of the
victim’s propensity for violence prejudiced his defense. The Colorado Court of Appeals
evaluated the merits of Applicant’s assertion of error pursuant to Colorado state law,
and determined that presentation of the second alleged error on direct appeal would not
have warranted a different result because, at trial, defense counsel failed to establish
the proper foundation for introduction of the witness’s character evidence. (ECF No. 10
After reviewing the Court of Appeals’ Order, the Court finds that the Colorado
Court of Appeals applied the Strickland standard to Applicant’s second alleged error by
appellate counsel in a manner not contrary to or not constituting an unreasonable
application of clearly established federal law. Accordingly, Applicant’s second
allegation of error also lacks merit.
Finally, Applicant argues that the trial court’s refusal to grant a mistrial on three
separate occasions was in error, and should have been raised by appellate counsel on
direct appeal. This Court is limited to determining whether the Colorado Court of
Appeals’ Rule 35(c) determination “[ran] afoul of federal law.” Bowser, 20 F.3d at 1065.
The Court agrees with the Magistrate Judge that, consistent with Colorado state law
prescribing deference to a trial court’s decision to grant or deny a mistrial, the Colorado
Court of Appeals did not run afoul of federal law when it found that the trial court
properly exercised discretion in making the decision to deny Applicant’s requests for a
mistrial. (ECF No. 10 at 24-27.)
Because the Court finds that the Colorado Court of Appeals properly applied
Strickland and Colorado state law to its evaluation of Applicant’s claim related to his
appellate counsel’s failure to challenge the trial court’s denial of his requests for a
mistrial, Applicant’s third allegation of error lacks merit as well.
Therefore, in accordance with the forgoing, the Application for a Writ of Habeas
Corpus is denied and Applicant’s remaining Claim 2(b) is dismissed with prejudice.
For the reasons set forth above, the Court ORDERS as follows:
Applicant’s Objection (ECF No. 71) to the Magistrate Judge’s April 17, 2012
Recommendation is OVERRULED and the Recommendation (ECF No. 67) is
ADOPTED in its entirety;
The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 24) is DENIED;
Applicant’s Claim 2(b) is DISMISSED WITH PREJUDICE;
Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be
taken in good faith and, therefore, in forma pauperis status is DENIED for
purpose of appeal. If Applicant files a notice of appeal, he is ordered to pay the
full $455 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; and
No certificate of appealability shall issue because Applicant has not made a
substantial showing of a deprivation of a constitutional right.
Dated this 29th day of June, 2012.
BY THE COURT:
William J. Martínez
United States District Judge
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