Rhodes v. Medina et al

Filing 21

ORDER. Applicant Zachary C. Rhodes' 1 Application for Writ of Habeas Corpus to 28 U.S.C. § 2254 is denied. No certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. This case is dismissed with prejudice. By Judge Philip A. Brimmer on 6/10/11. (mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00550-PAB
ZACHARY C. RHODES,
Applicant,
v.
ANGEL MEDINA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254

This matter is before the Court on Petitioner Zachary C. Rhodes’ pro se
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“the Petition”)
challenging the validity of his conviction and sentence in Case No. 02CR2008 in the
Arapahoe County District Court of Colorado. Remaining for disposition on the merits
are Petitioner’s first, fourth, fifth and sixth claims. Respondents have filed an Answer to
those claims, and the Petitioner filed a Traverse. Having considered the same, along
with the state court record,1 the Court concludes that the Petition should be denied.

1

The state court record in Arapahoe District Court Case No. 02CR2008 consists
of two CD-ROMs that contain the state court pleadings and hearing and trial transcripts,
and sealed envelopes containing the original trial court exhibits. For ease of reference,
the hearing and trial transcripts will be cited in this Order as “Hearing Tr.” and “Trial Tr.,”
preceded by the applicable date.

I.

Background
On August 1, 2003, Petitioner was convicted by a jury of first degree burglary

and menacing in the District Court for Arapahoe County, Colorado (“the trial court”).
State Court R., August 1, 2003 Hearing Tr., at 3-4. Following a court trial and
conviction on four habitual criminal charges, the trial court sentenced Petitioner on
August 6, 2004 to a sixty-four year prison term for the burglary conviction and a
concurrent twelve year term for the menacing conviction. State Court R. vol. 2, at 244;
August 6, 2004 Hearing Tr. at 93. The Colorado Court of Appeals affirmed Petitioner’s
convictions on direct appeal in People v. Rhodes (Rhodes I), No. 04CA1890 (Colo. Ct.
App. May 31, 2007) (unpublished opinion), Respondents’ Pre-Answer Resp. Ex. D. at
2-4. The Colorado Supreme Court denied Petitioner's request for certiorari review on
September 17, 2007. Id., Ex. F.
Petitioner filed a motion for post conviction relief pursuant to Colo. Crim. P. Rule
35(c) on August 12, 2008, which the trial court denied on December 2, 2008. The
Colorado Court of Appeals affirmed the trial court’s order on appeal in People v.
Rhodes (Rhodes II), No. 09CA0069 (Colo. Ct. App. Jan. 28, 2010) (unpublished
decision). Pre-Answer Resp. Ex. L.
Petitioner asserted seven claims in his original Application. Upon preliminary
review of the Application, Magistrate Judge Boyd N. Boland ordered the Respondents
to file a pre-answer response addressing the affirmative defenses of timeliness and
exhaustion of state remedies. Respondents conceded that the Application was timely,
but argued that claims two, three, five, six and seven were not exhausted and were

2

procedurally defaulted. The Court agreed as to claims two, three and seven and
dismissed those claims as procedurally barred from federal habeas review. See April
28, 2010 Order to Dismiss in Part. The Court further found, however, that Applicant
exhausted state remedies for claims one, four, five and six. Claims one, four, five and
six of the Application were drawn to a District Judge and to a Magistrate Judge. Id.
The Court reviews the merits of those claims below.
II.

Standard of Review
The Court must construe the Petition and other papers filed by Petitioner liberally

because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
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:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) 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).
Claims of legal error and mixed questions of law and fact are reviewed pursuant
to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).
The threshold question pursuant to § 2254(d)(1) is whether Petitioner seeks to apply a
rule of law that was clearly established by the Supreme Court at the time his conviction
3

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,
clearly established law consists of Supreme Court holdings in cases where the facts are
at least closely-related or similar to the case sub judice. Although the legal rule at issue
need not have had its genesis in the closely-related or similar factual context, the
Supreme Court must have expressly extended the legal rule to that context. House v.
Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal
law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018. If a
clearly established rule of federal law is implicated, the Court must determine whether
the state court's decision was contrary to or an unreasonable application of that clearly
established rule of federal law. See Williams, 529 U.S. at 404-05.
A state court decision is contrary to clearly established federal law if: (a) the state
court “‘applies a rule that contradicts the governing law set forth in [Supreme Court]
cases’”; or (b) “‘the state court 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, 529 U.S. at 405). “The word ‘contrary’ is commonly
understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or
‘mutually opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of clearly established
federal law when it identifies the correct governing legal rule from Supreme Court

4

cases, but unreasonably applies it to the facts. Id. at 407-08. Additionally, an
unreasonable application may occur if the state court either unreasonably extends, or
unreasonably refuses to extend, a legal principle from Supreme Court precedent to a
new context where it should apply. House, 527 F.3d at 1018.
The Court's inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671.
Claims of factual error are reviewed pursuant to 28 U.S.C. § 2254(d)(2). See
Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows the 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 that court. Pursuant to § 2254(e)(1), the Court must presume that the
state court's factual determinations are correct and Petitioner bears the burden of
rebutting the presumption by clear and convincing evidence.
Finally, the 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); see also Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (reconfirming “that

5

§ 2254(d) does not require a state court to give reasons before its decision can be
deemed to have been “adjudicated on the merits.”).
III.

Legal Analysis
A.

Claim One

Petitioner asserts in his first claim for relief that there was insufficient evidence to
support his conviction for first degree burglary because the prosecution failed to prove
the statutory element that he entered M.T.’s apartment unlawfully or remained there
unlawfully. Petitioner argued in his opening brief to the Colorado Court of Appeals that
he had implicit permission from M.T. to enter and remain in M.T.’s apartment based on
the following evidence: M.T. opened the door to the apartment in response to C.B.’s
knock; M.T. allowed Petitioner inside and did not thereafter ask Petitioner to leave; M.T.
assisted the Petitioner by instructing C.B. to “tell [Petitioner] where his sister’s at”; and,
when a neighbor knocked on M.T.’s door after hearing a gunshot, M.T. told the
individual that everything was “all right” inside. Pre-Answer Resp. Ex. B at 12-13.
The Petitioner’s constitutional challenge to the sufficiency of the evidence is
governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support
a conviction as a matter of due process if, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in the
original). The Court looks at both direct and circumstantial evidence in determining the
sufficiency of the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir.
1998). The Court “may not weigh conflicting evidence nor consider the credibility of

6

witnesses,” but must “‘accept the jury's resolution of the evidence as long as it is within
the bounds of reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996)
(quoting Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)). The Court
considers all of the evidence presented at trial, including Petitioner’s own testimony, in
determining the sufficiency of the evidence to support the verdict. See Jackson, 443
U.S. at 319; accord United States v. Megallanez, 408 F.3d 672, 681 (10th Cir. 2005)
(citing United States v. Vallo, 238 F.3d 1242, 1247 (10th Cir. 2001)).
In applying Jackson, the Court looks to Colorado law to determine the
substantive elements of the offense. See Jackson, 443 U.S. at 324 n.16; Valdez v.
Bravo, 373 F.3d 1093, 1097 (10th Cir. 2004). Under Colorado law, a person commits
first degree burglary when that person:
knowingly enters unlawfully, or remains unlawfully after a lawful or
unlawful entry, in a building or occupied structure with intent to commit
therein a crime, other than trespass . . . against another person or
property, and if in effecting entry or while in the building or occupied
structure. . . the person or another participant in the crime assaults or
menaces any person, or the person or another person is armed with
explosives or a deadly weapon.
Colo. Rev. Stat. § 18-4-202(1) (2010). Pursuant to Colo. Rev. Stat. § 18-4-201(3), “[a]
person ‘enters unlawfully’ or ‘remains unlawfully’ in or upon premises when the person
is not licensed, invited, or otherwise privileged to do so.”
The Colorado Court of Appeals resolved Petitioner’s challenge to the sufficiency
of the evidence pursuant to a state law standard that is substantially identical to the
Jackson standard, see Rhodes I, Pre-Answer Resp. Ex. E at 5, and rejected Petitioner’s
claim based on the following reasoning:

7

Defendant contends that he could not be convicted of entering or
remaining in the apartment unlawfully because (1) M.T. did not ask
defendant to leave; and (2) M.T. told the neighbor shortly after the gun
discharged that everything was “all right.” We disagree.
There was evidence that M.T. opened the door in response to the
knock, but there is no evidence that he gave defendant permission to
enter into his apartment. Thus, a jury could find that defendant entered
the apartment without M.T.’s permission and was not licensed, invited, or
otherwise privileged to enter.
The evidence also supports a finding by a reasonable person that
even if defendant had M.T.’s permission to enter the apartment, this
permission was implicitly withdrawn once defendant pointed the gun at
M.T. and then remained in the apartment unlawfully. Any permission was
also explicitly withdrawn once M.T. told defendant to leave. See Cooper
v. People, 973 P.2d 1234, 1241 (Colo. 1999) (a defendant may be
convicted of second degree burglary if he or she entered lawfully but
subsequently remained unlawfully with the intent to commit a crime
therein); disapproved of on other grounds by Griego v. People, 19 P.3d 1
(Colo. 2001); People v. Ager, [928 P.2d 784 (Colo. App. 1996)].
Thus, the evidence viewed as a whole and in a light most favorable
to the People, was sufficient to support a conclusion by a reasonable
person that defendant unlawfully entered or remained unlawfully after a
lawful entry, with intent to commit a crime in the apartment. See People v.
Ager, supra.
Id. at 6-7.
The events leading up to Petitioner’s arrival at the burglary location were
accurately summarized by the Colorado Court of Appeals as follows:
In July 2001, defendant and co-defendant (whose trial was severed from
defendant’s) were searching for defendant’s sister. . . Defendant received
information that his sister was seen that day with C.B., his sister’s friend,
and that she had been injured in the eye and mouth and needed medical
attention. Defendant called C.B. and asked her to accompany them in the
search.
C.B. suggested they try several apartments of friends who knew
defendant’s sister. . . . En route, defendant stopped by his own home to
“get some heat,” which C.B. testified meant defendant wanted to get a
gun. Defendant admitted taking a gun with him in the search for his sister.
8

[The search proved unsuccessful and] Defendant, who had grown
increasingly angry at their lack of success, told C.B. that she had “taken”
his sister from him and that she could not leave until they found her.
At one of the apartment buildings, C.B. heard defendant whisper to codefendant that he wanted to “knock this bitch off.” Co-defendant told C.B.
to “be nice” to defendant because defendant was thinking of “taking her
out.”
They eventually arrived at the apartment of M.T. Defendant and C.B.
provided substantially different testimony as to what transpired next.
Rhodes I, Pre-Answer Resp. Ex. D. at 2-4.
Menacing victim C.B. testified that immediately before she knocked on burglary
victim M.T.’s door, Petitioner showed her his gun and threatened to hurt her because
she was unable to find his sister. State Court R. July 29, 2003 Trial Tr. at 76-77. C.B.
further testified that Petitioner stood beside her as she knocked on M.T.’s door, entered
the apartment with her when M.T. opened the door without being invited in, pushed her
onto the couch, told her to shut up, threatened to “pistol whip” her, and then hit her on
the head with his gun, splitting her head open. Id. at 78-79. Petitioner then pointed the
gun at C.B.’s head and shot it six times, but it misfired. Id. at 79-81. C.B. testified that
when she asked M.T. “are you going to stand there and watch him kill me?”, M.T.
responded, “tell [Petitioner] where his sister’s at.” Id. at 84. After deciding not to be
“tormented any more,” C.B. stood up and started walking toward the door. Id. at 85.
Petitioner grabbed her and accidentally dropped the gun, at which point they both
struggled to get control of it. The gun fired but did not hit C.B. Id. at 86-87. A neighbor
knocked on the door, and M.T. reassured him that “everything all right in here.” Id. at
88. According to C.B., Petitioner then said, “I’m going to knife the bitch to death” and

9

went into the kitchen to get a knife. Id. at 88. C.B. ran out of the apartment to a
neighbor’s house and called 911. Id. at 88-89.
Petitioner argues that the above evidence establishes that Petitioner had implicit
permission to enter and remain in M.T.’s apartment. Although the trier of fact could
reasonably have made that inference based solely on C.B.’s testimony, that was not the
only reasonable inference the jury could have drawn. The evidence could also support,
based on C.B.’s testimony, a finding by a rational jury that Petitioner was not invited to
enter the apartment, but rather came inside before M.T. had a chance to say anything
to him and, given that Petitioner then immediately pulled out a gun, deterred M.T. from
objecting to Petitioner’s entry. See Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir.
2008) (federal habeas review under the Jackson standard is “sharply limited,”; a court
“faced with a record of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.”) (internal quotation marks and alterations omitted). Accordingly, C.B.’s
testimony is arguably sufficient to support the element of unlawful entry under Colorado
law. See Ager, 928 P.2d at 790 (rejecting defendant’s challenge to his second degree
burglary conviction for lack of evidence of unlawful entry where defendant knocked on
door of victim’s trailer and assaulted the victim immediately after the victim opened the
door, entered the trailer and continued to assault victim inside the trailer).
Moreover, even if Petitioner had implicit permission to enter the apartment, the
state court record supports the Colorado Court of Appeals’ determination that such
permission was withdrawn once Petitioner pulled a gun on M.T. and M.T. ordered him
10

to leave. Petitioner testified at trial to the following version of events: After he entered
M.T.’s apartment and M.T. told him that he did not know the whereabouts of Petitioner’s
sister, Petitioner did not believe M.T. and searched M.T.’s apartment. Id. at 175-76.
M.T. told Petitioner again that he had not seen Petitioner’s sister and that he did not
“give a f— where your sister is.” Id. at 176. Petitioner was angered by M.T.’s remark,
pulled a gun out of his waistband, and said to M.T., “Now do anybody give a f— about
where my sister at.” Id. at 176, 183. C.B. then charged at Petitioner, knocking the gun
out of his hand. Id. Petitioner testified that he and C.B. wrestled for the gun and it
discharged accidentally. Id. at 176-179, 183. While Petitioner and C.B. were wrestling
for the gun, and before the gun went off, M.T. told Petitioner to get out of his apartment,
but Petitioner continued to struggle with C.B. for the gun. Id. at 183.
Viewed in a light most favorable to the prosecution, a rational jury could have
concluded beyond a reasonable doubt, based on the evidence as a whole, that
Petitioner remained unlawfully in M.T.’s apartment, even if Petitioner was given
permission to enter originally. The Court therefore finds that the state appellate court
reasonably applied the Jackson standard in determining that there was sufficient
evidence presented at Petitioner’s trial to support Petitioner’s conviction for first degree
burglary. See Ager, 928 P.2d at 790 (rejecting defendant’s challenge to his second
degree burglary conviction for lack of evidence of unlawfully remaining in an occupied
structure where defendant assaulted the victim as he entered the victim’s trailer and
continued to assault the victim inside the trailer). Petitioner is not entitled to federal
habeas relief on his first claim.

11

B.

Claim Four
Petitioner asserts in claim four that his Sixth Amendment right to trial by jury and

his Fourteenth Amendment due process rights were violated when he was convicted by
the trial court of four habitual criminal counts2 and the court imposed a sentence four
times greater than he otherwise would have received. Petition at 6a.
In Apprendi v. New Jersey, 530 U.S. 455, 490 (2000), the Supreme Court held
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” The Court’s exclusion of prior convictions from the
general rule was based on its prior decision in Almendarez-Torres v. United States, 523
U.S. 224 (1998), which held that recidivism need not be charged in an indictment in
order for a judge to use prior convictions to enhance a defendant's sentence. Apprendi,
530 U.S. at 487-88. The Apprendi Court mentioned the possibility that
Almendarez-Torres may have been “incorrectly decided.” Apprendi, 530 U.S. at 489.
However, the Supreme Court has not overruled Almendarez-Torres. See e.g. United
States v. Booker, 543 U.S. 220, 244 (2005) (reaffirming the recidivism exception
announced in Apprendi ). Petitioner does not allege that his sentence was enhanced
on any basis other than the fact of his prior convictions so as to implicate the rule of
Apprendi.
The Colorado Court of Appeals resolved Petitioner’s claim as follows:
We also reject defendant’s contention that the habitual criminal
statute, Colo. Rev. Stat. § 18-1.3-801 (2006), violates his right to jury trial
2

State Court R., August 6, 2004 Hearing Tr. at 88-89.
12

on the habitual criminal charges, for the reasons set forth in People v.
Nunn, 148 P.3d 222, 225 (Colo. App. 2006); People v. Felder, 129 P.3d
1072, 1074 (Colo. App. 2005); People v. Benzor, 100 P.3d 542, 545
(Colo. App. 2004); People v. Carrasco, 85 P.3d 580, 582 (Colo. App.
2003); and People v. Johnson, 74 P.3d 349, 355-56 (Colo. App. 2002).
Rhodes I, Pre-Answer Resp. Ex. D at 11.
In rejecting Petitioner’s claim, the Colorado Court of Appeals relied on its own
earlier panel decisions which applied the rule of Apprendi and its exception for prior
convictions. The state appellate court’s determination that Petitioner was not entitled to
a jury trial on the habitual criminal charges was consistent with applicable Supreme
Court law.
Petitioner also argues incorrectly that Colorado affords him a right to a jury trial
on the habitual criminal charges and, therefore, his sentence is contrary to Sullivan v.
Louisiana, 508 U.S. 275 (1993). Petition at 6a, Reply at 5-6. Sullivan held that the Fifth
and Sixth Amendments require criminal convictions to rest upon a jury determination
that the defendant is guilty of every element of the crime with which he is charged.
Sullivan, 5080 U.S. at 277-78. However, Sullivan does not apply to prior criminal
convictions. Moreover, contrary to Petitioner’s assertion, Colo. Rev. Stat. § 18-1.3-803
(2010) does not confer a right to a jury trial on habitual criminal charges. And even if
such a right inured to Petitioner under state law, it would not afford him a basis for
federal habeas relief. See Estelle v. McGuire, 503 U.S. 62, 67-68 (1991)( “[F]ederal
habeas corpus relief does not lie for errors of state law.”).
Petitioner thus cannot prevail on his fourth claim.

13

C.

Claim Five

Petitioner asserts in claim five that his Fourteenth Amendment due process
rights were violated when the prosecutor and police withheld evidence of M.T.’s
purported interview statements that Petitioner had permission to be in M.T.’s apartment.
Petition at 6a.
Petitioner argued in a state post-conviction motion that he discovered several
years after the burglary that victim M.T. gave statements to investigating police officer
Christopher Poppe and the “Arapahoe County D.A.” that menacing victim C.B. was
responsible for causing the gun to go off in M.T’s apartment and that M.T.’s remark to
“get . . . out of his apartment” was directed to C.B. State Court R., vol. 3 at 572-79.
Petitioner attached to his motion an affidavit from Neshan Johnson, who stated that he
“associated” with M.T. between May 30, 2004 and January 20, 2007. Id. at 580. M.T.
told Johnson that the “Arapahoe County D.A.” tried to persuade M.T. to testify (falsely)
at Petitioner’s trial that Petitioner did not have permission to be in M.T.’s apartment. Id.
Johnson further states that M.T. told him that M.T. left Colorado and moved to Texas to
avoid perjuring himself at trial. Id. at 580-81. Petitioner submitted a second affidavit
from Petitioner’s sister, Victoria Rhodes, who states that M.T. told her after the trial that
he gave a statement to police officer Poppe that Petitioner had permission to be in his
apartment, that C.B. grabbed Petitioner’s gun and caused it to go off, and that M.T. told
C.B. to get out of the apartment. Id. at 582-83. Ms. Rhodes further states that M.T.
provided this information to a district attorney named “Peters” by telephone from Texas
and told the prosecutor he was willing to fly back to Colorado to testify at Petitioner’s

14

trial. Peters said he would let him know if his testimony was needed, but never called
him back. Id. at 583.
Prior to trial, the prosecutor learned that M.T. was living in Oklahoma and, at the
prosecution’s request, the state trial court issued an order requesting that an Oklahoma
court order M.T. to travel to Colorado to testify at Petitioner’s trial. State Court R., vol.
3. at 192-97. M.T. did not attend the trial.
An accused’s due process rights are violated under Brady v. Maryland, 373 U.S.
83 (1963), when the prosecution suppresses material evidence that was favorable to
the accused as exculpatory or impeachment evidence. See Strickler v. Greene, 527
U.S. 263, 281-82 (1999). Evidence is material if there is a reasonable probability that,
“had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
The Colorado Court of Appeals rejected Petitioner’s Brady claim based
on the following reasoning:
We first consider whether defendant is entitled to relief on his claim
that his conviction was obtained in violation of Brady because the victim’s
testimony was deliberately suppressed by the prosecutor and the police,
and conclude he is not.
Defendant submitted affidavits prepared by his sister and a fellow
inmate, Neshan Johnson, alleging that each of them talked with the victim
after the trial. Defendant’s sister, on the one hand, stated in her affidavit
that the victim said he told an investigating officer defendant had
permission to be in his apartment, and he tried to attend the trial to testify,
but the prosecutor never contacted him to attend. Johnson, on the other
hand, stated in his affidavit that the victim said he fled to Texas to avoid
the prosecutor’s persistent requests that he perjure himself by testifying
that defendant did not have permission to be in his apartment. Based on
these affidavits, defendant argued that the prosecutor and police officers

15

deliberately suppressed and failed to disclose the victim’s statements and
produce him at trial, violating the defendant’s rights pursuant to Brady.
Defendant contends the trial court erred by “completely ignoring”
this claim because it addressed it as a newly discovered evidence claim
rather than as a claim pursuant to Brady. Even under Brady, defendants
claim fails.
A defendant has a right under the Due Process Clause to all
material exculpatory evidence in the actual or constructive possession of
the prosecution. Brady, 373 U.S. at 87; People v. Braunthal, 31 P.3d 167,
172 (Colo. 2001). To establish a due process violation, a defendant must
establish that (1) the evidence was suppressed or destroyed by state
action; (2) the evidence had exculpatory value that was apparent before it
was lost or destroyed; and (3) the defendant was unable to obtain
comparable evidence by other reasonably available means. Braunthal, 31
P.3d at 173; see People v. Greathouse, 742 P.2d 334, 338 (Colo. 1987).
A reasonable probability is one sufficient to undermine judicial confidence
in the outcome of the proceedings. People v. Bradley, 25 P.3d 1271,
1276 (Colo. App. 2001) (citing United States v. Bagley, 473 U.S. 667, 682
(1985)).
Defendant testified at trial that he entered the victim’s apartment
when the victim opened the door. When defendant pointed a gun at the
victim, the victim told him to “get . . . out.” On direct appeal, a division of
this court found this testimony sufficient to support defendant’s conviction
for burglary. Hence, even if the accounts contained in the affidavits
submitted by defendant had been added to the trial testimony, they would
not have created a reasonable likelihood that he would have been
acquitted of the burglary for entering the apartment and for remaining
after the gun discharged. Therefore, the trial court did not err in denying
this claim without a hearing. [state law citations omitted].
Rhodes II, Pre-Answer Resp. Ex. L at 3-5. The state appellate court erroneously cited
the three-part test enunciated in California v. Trombetta, 467 U.S. 479, 488-89 (1984),
for establishing a federal due process claim based on state destruction of the evidence,
rather than to the Brady test. However, both Trombetta and Brady require the
defendant-petitioner to prove that the evidence in question was material to the defense.
Furthermore, the Colorado Court Appeals cited Bagley in discussing the standard for
16

materiality. The Court therefore finds that the state appellate court applied the correct
legal standard in resolving Petitioner’s claim.
Before reaching the issue of materiality, the Court notes that Petitioner’s claim
that the prosecutor or police suppressed a witness statement is questionable at the
outset. Petitioner’s affidavits in support of his motion for post-conviction relief contain
inherently contradictory information – according to one account, witness M.T. is evading
a prosecutor who is attempting to have M.T. perjure himself at Petitioner’s trial, while in
the other account, M.T. tells prosecutor Peters (presumably James Peters, the elected
District Attorney of the 18th Judicial District) that he wants to testify, but the prosecutor
does not call him back. By contrast, the state trial court pleadings file indicates that the
district attorney located M.T. in Oklahoma and sought to secure his presence at trial
through the assistance of an Oklahoma state court; however, M.T. did not attend the
trial.
Even assuming that the prosecution suppressed a statement by M.T. that
Petitioner had permission to be in his apartment and that M.T. told C.B., not Petitioner,
to “get . . . out,” that evidence conflicts with Petitioner’s own testimony that M.T. told him
to “get . . . out” after Petitioner pulled a gun on M.T. and asked M.T. if that made him
care about his sister’s whereabouts. The Court finds that the state appellate court’s
decision that the allegedly suppressed witness statements were not material was a
reasonable application of Brady and was a reasonable determination of the facts in light
of the evidence presented at trial. Petitioner is not entitled to federal habeas relief for
his fourth claim.

17

D.

Claim Six

For his sixth claim, Petitioner asserts that he was denied his Sixth Amendment
right to effective assistance of trial counsel when counsel: (a) failed to locate M.T. and
secure his testimony at Petitioner’s trial; (b) failed to prepare Petitioner for his trial
testimony and thereby causing Petitioner to incriminate himself in response to counsel’s
questions; and, (c) committed cumulative errors which deprived Petitioner of a fair trial.
Petition at 6a.
To prevail on his claim that trial counsel’s assistance was constitutionally
ineffective, Petitioner must show that: (1) counsel's legal representation fell below an
objective standard of reasonableness; and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of
counsel’s performance is highly deferential. Id. at 689. Counsel’s decisions are
presumed to represent “sound trial strategy;” “[f]or counsel’s performance to be
constitutionally ineffective, it must have been completely unreasonable, not merely
wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted).
“[A] particular decision not to investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of deference to counsel's
judgments.” Strickland, 466 U.S. at 691. Prejudice exists when there is a reasonable
probability that, but for counsel’s defective representation, the result of the proceeding
would have been different. Id. at 693. In evaluating prejudice, the Court considers the
totality of the evidence before the jury. Id. at 695. The Court need not address both

18

prongs of the Strickland inquiry if the Court determines that Petitioner’s claim fails on
one. Id. at 697.
The state appellate court applied the Strickland standard in resolving Petitioner’s
claim. See Rhodes II, Pre-Answer Resp. at 5-6. Accordingly, the Court must determine
whether the state court’s application of the Strickland test comported with Supreme
Court precedent.
1.

Counsel’s failure to investigate

Petitioner first contends that trial counsel was constitutionally ineffective in failing
to locate M.T. and secure M.T.’s testimony that Petitioner had permission to be in his
apartment.
The Colorado Court of Appeals resolved this claim as follows:
Defendant first contends that his trial counsel was ineffective
because counsel failed to locate the victim and secure him to testify that
defendant had permission to be in his apartment even after his gun
discharged.
However, even if counsel could have secured the victim to testify to
that effect at trial, there is no reasonable probability the outcome of the
proceedings would have been different in light of the defendant’s own
testimony that, when he pointed a gun at the victim, the victim told him to
“get . . . out.” See Strickland, 466 U.S. at 649; Davis, 871 P.2d at 772.
Thus, the trial court properly denied this claim without a hearing. See
Ardolino, 69 P.3d at 77.
Rhodes II, Pre-Answer Resp. Ex. L at 6-7.
The Court finds that state appellate court’s determination of this claim is
supported by the state court record, see July 39, 2003 Trial Tr. at 183-84, and is a
reasonable application of the Strickland prejudice test. As discussed in the preceding

19

sections, the evidence at trial was sufficient to convict Petitioner of first degree burglary
based on Petitioner’s own testimony that he pulled out a gun, asked M.T. if he now
cared about his sister’s whereabouts, and then did not leave M.T.’s apartment
immediately after M.T. told him to get out, but rather continued to struggle with C.B. for
control of the gun. Petitioner thus cannot prevail on his request for federal habeas
relief.
2.

Inadequate preparation of Petitioner for trial testimony

Petitioner next contends that his trial counsel was ineffective in failing to prepare
him to testify at trial and, as a result, Petitioner incriminated himself on direct
examination in response to counsel’s questions. The Colorado Court of Appeals
rejected this claim on the following grounds:
Defendant next contends his trial counsel was ineffective for not
preparing for trial adequately, which led to questioning defendant during
trial in a manner that caused him to involuntarily incriminate himself by not
clarifying that the victim’s statement to “get . . . out” was directed at the
menacing victim and not defendant.
On direct examination, defendant testified as follows:
[Defense Counsel:] Did [the victim] appear to be intimidated
by you?
[Defendant:] When he say “get . . . out of my house.”
[Defense Counsel:] At that point?
[Defendant:] Yeah, at that point.
[Defense Counsel:] And was that after the shot was fired –
when he told you to get out of his house, was that after the
shot had been fired?
[Defendant:] That was before the shot.
20

[Defense Counsel:] Were you able to get out of his house at
that point when he said “get out of my house”?
[Defendant:] No.
[Defense Counsel:] Why not?
[Defendant:] I didn’t get out of his house at that point.
[Defense Counsel:] When he said that, were you wrestling
around with [the menacing victim] for the gun?
[Defendant:] Yeah, I was wrestling around.
[Defense Counsel:] And he was yelling, “get out of my
house”?
[Defendant:] Yeah.
[Defense Counsel:] As soon as the gunshot went off and
you took the gun away from [the menacing victim] –
[Defendant:] Yes, we left.
Defendant’s statement that the victim told him to “get . . . out” was
not raised in his attorney’s questions. Thus, his trial counsel did not
render substandard performance in a manner that caused defendant to
involuntarily incriminate himself.
Accordingly, we affirm the denial of this claim without a hearing,
although on grounds other than those relied on by the trial court. [state
case law citations omitted].
Rhodes II, Pre-Answer Resp. Ex. L at 7-9.
The passage from the trial transcript quoted by the Colorado Court of Appeals
was preceded by the following exchange:
[Defense Counsel:] Did you ever threaten anyone with a gun or with
anything else before you got to [M.T.’s] house?
[Petitioner:] No.

21

[Defense Counsel:] When you pulled out the gun and asked, “Now does
anybody give a f---- at about my sister,” who was that directed to?
[Petitioner:] Directed at [M.T.].
[Defense Counsel:] Did [M.T.] appear to be intimidated by you?
State Court R., July 30, 2003 Trial Tr. at 183.
The colloquy between Petitioner and his trial counsel supports the Colorado
Court of Appeals’ determination that Petitioner’s incriminating statement that M.T. told
him to leave the apartment was not elicited by his trial counsel, but rather was
volunteered by Petitioner. As such, the statement was not the product of deficient
attorney performance. Trial counsel is not accountable for every unexpected statement
that comes out of a client’s mouth. Moreover, counsel appeared to recognize the
incriminating nature of Petitioner’s statement vis-a-vis the burglary charge and
attempted to rehabilitate Petitioner by asking questions whose answers suggested that
Petitioner was unable to leave the apartment immediately because he was wrestling
around with the menacing victim for the gun. This was a reasonable trial strategy under
the circumstances. See Boyd, 179 F.3d at 914. Petitioner essentially gave the same
testimony on cross examination and failed to clarify that M.T.’s order to leave the house
was directed at the menacing victim, rather than Petitioner.3 State Court R., July 30,

3

Moreover, to the extent petitioner suggests that his attorney was ineffective for
not preparing Petitioner to testify that “the statement was being addressed to C.B.,”
Traverse at 11, the argument is rejected. The import of Petitioner’s trial testimony is
that M.T. told Petitioner to leave. Petitioner does not claim that he misspoke. Cf.
Petition at 5 (stating, as a “supporting fact” for the first claim, that “victim then ordered
Applicant out of the house”). As noted by the court in United States v. Rabi, 2004 WL
2060804, at *3 (S.D.N.Y. 2004) ”[a]n attorney cannot be faulted for failing to assist a
client in committing perjury.”
22

2003 Trial Tr. at 189. Accordingly, the Court finds that the state appellate court’s
conclusion that Petitioner’s incriminatory statements on direct examination were not the
result of constitutionally deficient performance by trial counsel comports with Strickland.
Petitioner is therefore not entitled to federal habeas relief for his claim.
3.

Trial counsel’s errors constituted cumulative error which
deprived Petitioner of a fair trial

Finally, Petitioner claims that trial counsel’s multiple errors amounted to
cumulative error which deprived him of a fair trial. Petitioner raised this claim in the
state courts as an independent claim, rather than as part of his ineffective assistance of
counsel claim, and the state appellate court addressed it as such. See Pre-Answer
Resp. Ex. I at 9-10; Rhodes II, Pre-Answer Resp. Ex. L at 10.
In the federal habeas context, “[a] cumulative-error analysis aggregates all
[constitutional] errors found to be harmless and analyzes whether their cumulative
effect on the outcome of the trial is such that collectively they can no longer be
determined to be harmless.” Alverson v. Workman, 595 F.3d 1142, 1162 (10th Cir.
2010) (quoting Brown, 515 F.3d at 1097) (internal quotation marks omitted); see also
Miller v. Mullin, 354 F.3d 1288, 1301 (10th Cir. 2004). However, the Supreme Court
has never held that the aggregation of harmless constitutional errors can constitute a
separate, reversible violation of the United States Constitution. “The absence of clearly
established federal law is dispositive under § 2254(d)(1).” House, 527 F.3d at 1018. In
any event, as the state appellate court recognized, Petitioner’s claim of cumulative error
fails because each substantive claim of constitutional error is without merit. See
Alverson, 595 F.3d at 1162; see also Rhodes II, Pre-Answer Resp. Ex. L at 10.
23

Accordingly, it is ordered:
1.

Applicant Zachary C. Rhodes’ Application For a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 is denied.

2.

No certificate of appealability will issue because Applicant has not made a
substantial showing of the denial of a constitutional right.

3.

This case is dismissed with prejudice.

DATED June 10, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

24