Hyberg v. Milyard et al

Filing 39

ORDER. Applicant's Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 5 is DENIED and this civil action hereby is DISMISSED WITH PREJUDICE. Certificate of appealability will not issue, by Judge Christine M. Arguello on 4/13/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 09-cv-02271-CMA
DARRELL ALAN HYBERG,
Applicant,
v.
KEVIN MILYARD, Warden, Sterling Corr. Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING APPLICATION FOR A WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C § 2254
AND DISMISSING ACTION WITH PREJUDICE

The matter is before the Court on Applicant’s October 23, 2009, Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (Doc. # 5.)
The Application has been briefed and oral argument would not assist the Court in its
adjudication.
For the reasons stated below, the Application is DENIED and this action is
DISMISSED WITH PREJUDICE.
I. BACKGROUND
On March 22, 2003, Applicant was convicted by a jury in El Paso County,
Colorado District Court on charges of first-degree murder after deliberation, first-degree
burglary, and second-degree burglary. Pre-Answer Response (Doc. # 9), Appendix A
at 21. The Colorado Court of Appeals summarized the underlying facts as follows:

Defendant used a key to enter the home of his former girlfriend (the
victim). When the victim returned home, Defendant shot her in the head
and killed her.
In a suicide note which defendant addressed to his parents and left
at the scene of the shooting, defendant wrote that he would see them “on
the other side” and that he was “taking [the victim] with” him. In this same
note, defendant explained that he was unwilling to serve the lengthy prison
sentence that would be imposed if he were to be convicted of a thenpending second degree assault charge that had been filed against him
based on an incident that had occurred approximately five months before.
At trial, defendant testified and admitted shooting the victim.
However, he claimed that he had acted in a sudden heat of passion
because the victim had threatened to prevent him from seeing the
couple’s children.
Id., Appendix D at 1.
Applicant was sentenced to life without parole on the first-degree murder
conviction and concurrent sentences of 32 years on the first-degree burglary conviction
and 24 years on the second-degree burglary conviction. Id., Appendix A at 21. He is in
the custody of the Colorado Department of Corrections and is currently incarcerated at
the Sterling Correctional Facility.
On December 31, 2003, Applicant’s appellate counsel wrote Applicant a letter
addressing various topics pertaining to the preparation of his appeal. Included in the
letter was a statement by counsel that “it has been brought to my attention by the staff
at the Sterling facility that you have been looking up my other clients housed there in
an effort to have them join you in a complaint against me.” Id., Appendix I at 46.
Applicant filed a direct appeal of his conviction to the Colorado Court of Appeals,
which affirmed the judgment of the trial court on April 7, 2005. Id., Appendix D. On
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April 12, 2005, Applicant’s appellate counsel informed Applicant by letter that she would
not be filing a motion for rehearing in the Colorado Court of Appeals and that “[t]he only
other thing that can be done about the direct appeal now is to file a petition for review
on certiorari in the Colorado Supreme Court, which I will do within the 45 days allowed
from the date of the opinion denying your appeal.” Traverse to Answer (Doc. # 28),
Appendix A. However, on July 11, 2005, after the deadline for filing a petition for writ of
certiorari had expired, Applicant’s counsel wrote Applicant another letter stating, “I have
not and will not be filing a petition for writ of certiorari. The reason for this is that, after
reviewing your opinion, your file, and the pertinent law, I have concluded that there is no
basis upon which to seek review on certiorari. I am constrained by law not to file any
pleading that I believe is frivolous.” Id., Appendix B at 1.
On December 8, 2005, Applicant filed a “Petition for a Rule to Show Cause in
Exercise of Original Jurisdiction” in the Colorado Supreme Court, asserting error by both
the state trial and appellate courts. Pre-Answer Response (Doc. # 9), Appendix F. The
Petition was denied by the Colorado Supreme Court on December 19, 2005. Id.,
Appendix A at 23.
Applicant then filed a state habeas corpus petition in Logan County, Colorado
District Court on February 28, 2006. Id., Appendix R at 2. The Logan County District
Court converted the petition to a Colo. R. Crim. P. 35(c) motion, and transferred the
case to El Paso County District Court. Objection to Magistrate Recommendation
On Applicant’s Motion to Reconsider (Doc. # 31) at 20 of 41. On November 7, 2006,

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Applicant re-filed his state habeas action in El Paso County District Court, despite the
fact that his Logan County habeas petition had already been incorporated into his
original criminal case. Pre-Answer Response (Doc. # 9), Appendix G. In his petition,
Applicant argued that his Sixth Amendment right to effective assistance of counsel had
been violated by his appellate counsel’s failure to file a petition for writ of certiorari in the
Colorado Supreme Court. Id. at 5.
El Paso County District Court denied the Rule 35(c) motion on February 26,
2007. Id., Appendix A at 22-23. Applicant appealed that order to the Colorado Court
of Appeals on March 15, 2007. Id., Appendix A at 23. On February 26, 2009, the
Colorado Court of Appeals affirmed the El Paso County District Court’s order. Id.,
Appendix L (People v. Hyberg, No. 07CA0489 (Colo. App. Feb. 26, 2009)
(unpublished)). Applicant filed a Petition for Rehearing, which the Colorado Court of
Appeals denied on April 9, 2009. Id., Appendix N. Applicant then filed a Petition for
Writ of Certiorari in the Colorado Supreme Court, which was summarily denied on July
20, 2009. Id., Appendix P.
Applicant filed his Amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 in this Court on October 23, 2009, pleading seven claims for relief.
On January 24, 2010, the Court dismissed as procedurally barred claims three, four,
five, six, and a portion of claim seven, allowing the case to proceed on the first and
second claims and a portion of the seventh claim. See Order to Draw in Part and
Dismiss in Part, filed January 14, 2010 (Doc. # 11).

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Applicant’s first claim for relief asserts that his appellate counsel provided
ineffective assistance in violation of the Sixth Amendment by failing to file a petition for
writ of certiorari in the Colorado Supreme Court. His second claim for relief alleges that
his appellate counsel provided ineffective assistance because she suffered from a
conflict of interest, referencing his counsel’s December 31, 2003, letter. The surviving
portion of Applicant’s seventh claim alleges that Applicant was prejudiced by his
counsel’s failure to file the petition for certiorari referenced in claim one. This claim
is properly treated as a subset of the first claim, since prejudice is an element of an
ineffective assistance of counsel claim. Thus, the Court will consider the first claim and
the surviving portion of the seventh claim together.
II. LEGAL STANDARDS
A.

28 U.S.C. § 2254
A federal district court reviewing a 28 U.S.C. § 2254 habeas petition does not

re-examine the state court’s determination of state-law questions. Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). Rather, “in conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Id.
An application for a writ of habeas corpus by a person in state custody may be
granted only where the decision of the state court was “contrary to, or involved an
unreasonable application of, clearly established federal law,” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the State

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court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Thus, the court must first determine
“whether the petitioner seeks to apply a rule of law that was ‘clearly established’ by the
Supreme Court at the time the conviction became final.” Valdez v. Ward, 219 F.3d
1222, 1229 (10th Cir. 2000); see also House v. Hatch, 527 F.3d 1010, 1018 (10th Cir.
2008). If the answer is yes, then the court goes on to determine whether the state court
decision was contrary to, or an unreasonable application of, clearly established federal
law. A state court decision is “contrary to” clearly established federal law where it
(1) “applies a rule that contradicts the governing law set forth in Supreme Court cases,”
or (2) “confronts a set of facts that are materially indistinguishable from a decision of the
Supreme Court and nevertheless arrives at a result different from [that] precedent.”
Maynard v. Boone, 468 F.3d 665, 669 (10th Cir. 2006) (quoting Williams v. Taylor, 529
U.S. 362, 404 (2000)) (internal quotation marks and brackets omitted). A state court
decision is “an unreasonable application of” clearly established federal law where it
is “objectively unreasonable,” meaning that "most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law."
Id. at 671.
Factual findings by the state court are presumed to be correct, and Applicant
has the burden of rebutting the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).

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B.

PRO SE STATUS
Because Applicant is proceeding pro se, the Court construes his filings liberally

and holds them to a less stringent standard than filings drafted by lawyers. Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as an
advocate for a pro se litigant. Id.
C.

EXHAUSTION OF ADMINISTRATIVE REMEDIES AND TIMELINESS
This Court has previously ruled that claim one, claim two, and the surviving

portion of claim seven were exhausted in state court, see Order to Draw in Part and
Dismiss in Part, filed January 14, 2010 (Doc. # 11), and Respondents do not argue
otherwise. Respondents also do not dispute that the present Application is timely under
the one-year statute of limitations set forth in 28 U.S.C. § 2244.
III. ANALYSIS
A.

INEFFECTIVE ASSISTANCE OF COUNSEL BASED ON FAILURE TO FILE
PETITION FOR WRIT OF CERTIORARI
Applicant’s first claim and the surviving portion of his seventh claim assert that

Applicant’s appellate counsel provided ineffective assistance in violation of the Sixth
Amendment by failing to file a petition for writ of certiorari in the Colorado Supreme
Court seeking review of the decision on Applicant’s direct appeal.
The Sixth and Fourteenth Amendments to the United States Constitution
guarantee criminal defendants the effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 706 (1984). However, while criminal defendants have a
constitutional right to counsel on their first-level direct appeal as of right, see Roe v.
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Flores-Ortega, 528 U.S. 470, 477 (2000); Douglas v. California, 372 U.S. 353 (1963),
under clearly established Supreme Court authority they do not have a constitutional
right to counsel to pursue discretionary appellate review in a state’s highest court. See
Ross v. Moffitt, 417 U.S. 600, 610 (1974) (no constitutional right to counsel to pursue
discretionary state appeals or applications for review by state’s highest court);
Wainwright v. Torna, 455 U.S. 586, 587 (1982) (same); Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of
right, and no further.”). Where a defendant has no constitutional right to counsel, he
or she cannot be denied the effective assistance of counsel. Wainwright, 455 U.S. at
587-88. Thus, a defendant cannot be denied his or her right to effective assistance of
counsel under the U.S. Constitution based on counsel’s failure to file a discretionary
appeal in the state’s highest court. Id.
Review by the Colorado Supreme Court on a petition for writ of certiorari is
discretionary. See Colo. R. App. P. 49(a) (“A review in the [Colorado] Supreme Court
on writ of certiorari . . . is a matter of sound judicial discretion and will be granted only
when there are special and important reasons therefor.”); see also Sutterfield v. District
Court, 438 P.2d 236, 239 (Colo. 1968) (“[T]he issuance of a writ of certiorari is always
discretionary”); Office of the State Court Administrator v. Background Information
Servs., Inc., 994 P.2d 420, 426 (Colo. 1999) (“Certiorari is not a matter of right.”).
In People v. Valdez, 789 P.2d 406 (Colo. 1990), the Colorado Supreme Court
drew a distinction between its review of a petition for writ of certiorari, which is

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discretionary, and the filing of the petition itself, which, under the Colorado Rules of
Appellate Procedure, as authorized by the grant of appellate jurisdiction in the Colorado
Constitution, is “an application of right.” Valdez, 789 P.2d at 408. Relying on this
distinction, the Valdez court held that because “Valdez had a right to file his application
for certiorari review by this court of the judgment of the Court of Appeals . . . [h]e
therefore had a right to obtain counsel and to rely on such counsel’s skill for the purpose
of preparing and filing that application. Id.
Under U.S. Supreme Court law, however, the relevant inquiry for determining the
existence of a right to counsel under the U.S. Constitution is not whether a criminal
defendant has the absolute right to file a petition for writ of certiorari, but, rather,
whether he or she has the absolute right to obtain appellate review by the Colorado
Supreme Court based upon that petition. See Ross, 417 U.S. at 610-615; Wainwright,
455 U.S. 587-88. Again, the Colorado Supreme Court has absolute discretion to grant
or deny review upon a petition for writ of certiorari; that review is not a matter of right.
See Colo. R. App. P. 49(a); Valdez, 789 P.2d at 408. Applicant thus had no right to
counsel under the U.S. Constitution in requesting discretionary review by the Colorado
Supreme Court. Accordingly, he was not deprived of any federal constitutional right
when his counsel failed to file a petition for certiorari seeking such review.
Although the Colorado Court of Appeals properly recognized in its February 26,
2009, Opinion that “the grant of a petition for writ of certiorari is a matter lying entirely
within the discretion of the supreme court,” Pre-Answer Response (Doc. # 9), Appendix

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L at 8, the court did not apply Ross and Wainwright’s holdings that no constitutional
right to counsel attaches to discretionary appeals. Instead, the Court of Appeals
proceeded to apply the two-pronged test for ineffective assistance of counsel claims
under Strickland,1 ultimately concluding that Applicant had not alleged any prejudice
resulting from his counsel’s failure to file the petition. To the extent that the Court of
Appeals overlooked Ross and Wainwright and proceeded to apply Strickland, it
misapplied federal law - in Applicant’s favor - by affording Applicant a right that does
not exist under federal law and proceeding further in the analysis than was required.
Any such error was harmless and provides no basis for relief under 28 U.S.C. § 2254.
See Herrera v. Lemaster, 301 F.3d 1192, 1199 (10th Cir. 2002) (applying harmless
error standard to state court adjudication). The Court of Appeals’ ultimate determination
that Applicant is not entitled to relief on an ineffectiveness claim based on his counsel’s
failure to file the petition for certiorari is consistent with federal law.
B.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED ON ALLEGED
CONFLICT OF INTEREST
In his second claim for relief, Applicant alleges that his appellate counsel

provided ineffective assistance because she suffered from a conflict of interest. As the
Colorado Court of Appeals recognized, the “sole ‘evidence’ [Applicant] cites in support
of his assertion is a single sentence of a letter from his appellate counsel: ‘[I]t has been
brought to my attention by the staff at the Sterling facility that you have been looking up
1

Under Strickland, a defendant alleging ineffective assistance of counsel must show
(1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced
the defense. Strickland, 466 U.S. at 694, 706 (1984).

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my other clients housed there in an effort to have them join you in a complaint against
me.’” Pre-Answer Response (Doc. # 9), Appendix L at 11. Applicant contends that his
counsel’s statement concerning her communication with staff at the Sterling facility
constitutes evidence that his attorney was colluding with the state. See Traverse to
Answer (Doc. # 28) at 15.
The Colorado Court of Appeals determined that Applicant’s conflict of interest
contention “is entirely speculative and without factual support,” concluding that “[t]his
communication between the Sterling facility staff and Hyberg’s appellate counsel is
insufficient to show, or even suggest, collusion.” Pre-Answer Response (Doc. # 9),
Appendix L at 11. Although the Court of Appeals cited to no federal authority in
rejecting the claim, it was not required to do so “so long as neither the reasoning nor the
result” of its decision contradicts U.S. Supreme Court case law. Early v. Packer, 537
U.S. 3, 8 (2002). This Court “owe[s] deference to the state court’s result, even if its
reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.
1999). Therefore, the Court “must uphold the state court’s summary decision unless
[its] independent review of the record and pertinent federal law persuades [it] 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.
Under Cuyler v. Sullivan, 446 U.S. 335 (1980), if an applicant can demonstrate
that an “actual conflict of interest adversely affected his lawyer’s performance,” id. at
348, meaning that “his counsel actively represented conflicting interests,” id. at 350, he

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can establish a violation of his Sixth Amendment right to effective assistance of counsel
without demonstrating a probable effect on the outcome of his case. See id.; see also
Strickland 466 U.S. at 692 (under Cuyler, "prejudice is presumed when counsel is
burdened by an actual conflict of interest.”). However, the U.S. Supreme Court has
never applied Cuyler outside of the context of an attorney representing multiple
defendants. See Mickens v. Taylor, 535 U.S. 162, 176 (2002) (any extension of Cuyler
outside of the context of joint representation is “an open question”); Schwab v. Crosby,
451 F.3d 1308, 1327 (11th Cir. 2006) (“[T]here is no Supreme Court decision holding
that any kind of presumed prejudice rule applies outside the multiple representation
context.”); Montoya v. Lytle, 2002 WL 31579759, *2 (10th Cir. Nov. 20, 2002) (the
Supreme Court “has never extended the Cuyler standard to cases involving successive,
rather than multiple, representation.”). Thus, there is no clearly established Supreme
Court authority applying Cuyler to circumstances, such as those alleged here, which
do not involve multiple representation.
Although Applicant’s claim is not evaluated under Cuyler, Applicant nonetheless
may establish that his counsel was ineffective based upon her communication with staff
at the Sterling facility if he is able to satisfy the requirements set forth in Strickland. See
Hale v. Gibson, 227 F.3d 1298, 1313 n.4 (10th Cir. 2000). Accordingly, Applicant must
show (1) that counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense, meaning that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have

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been different.” Strickland, 466 U.S. at 706. Counsel’s statement in her December 31,
2003, letter provides no evidence of deficient performance, much less “errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. Further, Applicant has made no showing
that but for counsel’s communication with staff at the Sterling facility, or her belief that
Applicant had talked with other inmates about filing a complaint against her, the result of
his appeal would have been different. See id. at 694. The Court of Appeals’ rejection of
Applicant’s conflict of interest claim was not contrary to, or an unreasonable application
of, clearly established federal law.
C.

REQUEST FOR HEARING
While Applicant has requested an evidentiary hearing before this Court on his

Application, he is entitled to an evidentiary hearing only “if his allegations, if true and not
contravened by the record, entitle him to habeas relief.” Walker v. Gibson, 228 F.3d
1217, 1231 (10th Cir. 2000), abrogated on other grounds by Neill v. Gibson, 278 F.3d
1044 (10th Cir. 2001); see also 28 U.S.C. § 2254(e)(2). Applicant’s factual allegations
do not meet this standard. The Court has carefully considered the Application and is
able to determine the issues presented thereby based upon the submitted record. See
Anderson v. Attorney General, 425 F.3d 853, 859 (10th Cir. 2005) (“[A]n evidentiary
hearing is unnecessary if the claim can be resolved on the record.”).

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IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Applicant’s Amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, filed October 23,
2009 (Doc. # 5) is DENIED and this civil action hereby is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability should not issue
because Applicant has not made a substantial showing of the denial of a constitutional
right. “A certificate of appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Applicant is not entitled to a certificate of appealability.
DATED: April

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, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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