Warrener v. Medina et al

Filing 28

ORDER. The 1 Application for Writ of Habeas Corpus is dismissed with prejudice. A certificate of appealability shall not issue because Applicant has not made a substantial showing of the denial of a constitutional right. By Judge Christine M. Arguello on 11/30/11. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00019-CMA
JOHN WARRENER,
Applicant,
v.
ANGEL MEDINA, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DISMISSING PETITION FOR HABEAS CORPUS
CHRISTINE M. ARGUELLO, District Judge
The matter before the Court is an Application For A Writ Of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. # 1). The Court has determined that the Application
can be resolved on the parties' briefing and that no oral argument or evidentiary hearing
is necessary.1
I. BACKGROUND
On July 15, 2005, a jury in Adams County, Colorado District Court Case No.
04CR1621 found Applicant guilty of first degree murder–after deliberation, first degree
murder–felony murder, and second degree burglary. On direct appeal of Applicant’s
conviction, the Colorado Court of Appeals summarized the underlying facts and
proceedings as follows:
Defendant and the victim were involved in an intimate relationship
beginning in 2001. In June 2004, the victim’s family requested that police

1

See 28 U.S.C. § 2254(e); Fed. R. Governing Section 2254 Cases 8(a).

conduct a welfare-check on the victim because she had not responded to
her family’s repeated telephone calls.
When the police arrived at the victim’s apartment residence, they
knocked on the door but received no response. After several failed
attempts to determine if the victim was inside her residence, the police
sought entry through apartment management personnel. At this time,
police observed defendant inside the apartment and ordered that he come
out. Instead, defendant jumped from an apartment window, and pursuit by
on-scene officers ensued.
Defendant was apprehended by police. Thereafter, police
discovered the victim’s body on her bed, wrapped in plastic. The victim
died from stab wounds.2
Applicant was sentenced to life without parole in the Colorado Department of
Corrections for murder, and a concurrent twenty-four year term for burglary. On direct
appeal, the Colorado Court of Appeals rejected six of Petitioner’s claims, but agreed
that the trial court erred by entering two murder convictions for one victim and ordered
the trial court to vacate Applicant’s conviction for felony murder.3 Applicant filed a
petition for rehearing with the state appellate court, which was denied on June 19,
2008.4 The Colorado Supreme Court denied Applicant’s petition for certiorari review.5
Applicant filed a motion for post conviction relief under Colo. Crim. P. Rule 35(c)
claiming that he received ineffective assistance of trial and appellate counsel. The state
trial court denied the motion.6 The Colorado Court of Appeals affirmed the trial court’s

2

People v. Warrener (Warrener I), 05CA1850 (Colo. App. May 8, 2008) (unpublished) (Doc. # 6-4,

at 1-2).
3

Id. at 27-28.

4

Doc. # # 6-5, 6-6.

5

Doc. #6-8.

6

Doc. # 6-11, at 2.

2

denial of relief, but remanded for correction of the mittimus.7 Applicant thereafter
presented two of his claims to the Colorado Supreme Court in a petition for certiorari
review, which was denied.8
II. HABEAS CLAIMS
Applicant filed pro se his Application for a Writ of Habeas Corpus on January 4,
2011.9 This Court issued an Order to Answer to Respondents on April 8, 2011.10
Respondents filed their Answer on June 15, 2011, after receiving two extensions of
time.11 Applicant filed his Traverse on July 14, 2011.12
Applicant asserts seven claims in the Application:
(1) the trial court’s admission of his statements to the police violated his
Fifth Amendment privilege against self-incrimination and his Fourteenth
Amendment right to due process;
(2) the trial court violated his Sixth Amendment right to confrontation by
limiting cross-examination of his former cell mate regarding the alleged
“reward” received for testifying against Applicant;
(3) the trial court violated his Fourteenth Amendment right to due process
by failing to have Applicant evaluated for competency at the time of trial;
(4) the trial court violated his Sixth Amendment confrontation rights by
admitting the victim’s testimonial hearsay about a prior domestic violence
incident;

7

People v. Warrener (Warrener II), No. 09CA1058 (Colo. App. June 24, 2010) (unpublished), Doc.

# 6-13.
8

Doc. #6-15.

9

Doc. # 1.

10

Doc. #12.

11

Doc. #17.

12

Doc. # 24.

3

(5) the trial court violated his Fourteenth Amendment due process right to
a fair trial by admitting evidence of a prior domestic violence incident;
(6) the trial court violated his Fourteenth Amendment due process right to
a fair trial by refusing to instruct the jury on the statutory heat of passion
mitigator, and
(7) Applicant’s Sixth Amendment right to effective assistance of counsel
was violated when trial counsel failed to seek a voluntary intoxication
instruction and failed to present an insanity defense.
III. LEGAL STANDARDS
A. 28 U.S.C. § 2254
The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides
that an application for writ of habeas corpus may be granted only if the adjudication of
the claim (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).
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 v. Taylor, 529 U.S. 362, 404-05
(2000).
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)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean ‘diametrically
4

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 cases, but unreasonably applies it to the facts. Id. at
407-08. Additionally, we have recognized that 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 v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008).
A “threshold determination that there is no clearly established federal law is
analytically dispositive in the § 2254(d)(1) analysis.” Id. at 1017. This is so because if
the Supreme Court's cases “give no clear answer to the question presented, . . . it
cannot be said that the state court unreasonably applied clearly established federal
law.” Wright v. Van Patten, 552 U.S. 120, 126 (2008) (quotations and alterations
omitted).
The Court's inquiry pursuant to the “unreasonable application” clause is an
objective one. 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. “[O]nly the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Id.

5

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 a court to grant a writ of habeas corpus only if the state court decision was based
on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to § 2254(e)(1), the Court must presume that the state court's factual
determinations are correct and the Petitioner bears the burden of rebutting the
presumption by clear and convincing evidence.
The Court applies the AEDPA deferential standard of review when a state court
adjudicates a federal issue relying solely on a state standard that is at least as favorable
to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196
(10th Cir. 2005). The Court likewise owes deference to the state court’s result if the
court reached the merits of the Petitioner’s claim, even if the court did not analyze the
claim under federal law. See Aycox v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999);
see also Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (reconfirming “that § 2254(d)
does not require a state court to give reasons before its decision can be deemed to
have been “adjudicated on the merits.”).
Finally, if the state courts failed to adjudicate a federal claim raised by the
Petitioner, the Court consider the claim de novo and the deferential AEDPA standard of
review does not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
B. PRO SE LITIGANT
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted by

6

attorneys.”13 However, a pro se litigant's “conclusory allegations without supporting
factual averments are insufficient to state a claim on which relief can be based.”14 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.15 The
Applicant's pro se status does not entitle him to an application of different rules.16
C. EXHAUSTION OF STATE COURT REMEDIES AND TIMELINESS
The Court has determined previously that Applicant exhausted state remedies for
all of his claims, except for part of claim three.17 In their Answer, Respondents continue
to maintain that claims one, five and six are not exhausted because Applicant failed to
present those claims to the Colorado Supreme Court in his petition for certiorari
review.18 The Court declines to reconsider its earlier ruling that claims one, five and six
are exhausted.
Respondents do not dispute that the Application is timely under the one-year
statute of limitations set forth in 28 U.S.C. § 2244.

13

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).
14

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

15

Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526

16

See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

(1983).

17

Order dated March 25, 2011(Doc. # 8); Order dated April 5, 2011 (Doc. # 10). Applicant agreed
to dismiss voluntarily the unexhausted portion of claim three. Id.
18

Doc. #17, at 14-20.

7

IV. ANALYSIS
A. ADMISSION OF APPLICANT’S STATEMENT TO THE POLICE
1. Violation of Privilege Against Self-Incrimination
Applicant asserts in his first claim that the trial court’s admission of his
statements to the police violated his Fifth Amendment privilege against
self-incrimination.
The Fifth Amendment to the United States Constitution guarantees that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that law enforcement officers must employ certain procedural safeguards to
ensure that a criminal suspect’s right against compulsory self-incrimination is protected
during an interrogation. Id. at 478-79. The term “interrogation” for purposes of Miranda
“refers not only to express questioning, but also to any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response from the suspect.”
Rhode Island v. Innis, 446 U.S. 291, 301 (1980). The test focuses on the perspective of
the suspect, not the intent of the police. Id. However, the intent of the police is not
irrelevant. Id. at 301, n.7. Nonetheless, police may engage in “[g]eneral on-the-scene
questioning as to facts surrounding a crime or other general questioning of citizens in
the fact-finding process” without first providing the Miranda warnings. Miranda, 384
U.S. at 477-78.

8

Before trial, Applicant filed a motion to suppress his statements made to the
police at the time of his arrest.19 Following an evidentiary hearing, the trial court denied
the motion, finding that no Miranda warnings were necessary because the officers’
questions did not constitute an interrogation.20 On direct appeal, the state appellate
court agreed that the protections of Miranda did not apply because Applicant’s
statements were not the product of an interrogation:
. . . Miranda does not apply unless the defendant is in custody and
the statements sought to be admitted are the product of police
interrogation. See id. The parties do not dispute that defendant was in
police custody at the time he made statements to the police. Rather, the
parties dispute whether defendant’s statements were the product of
interrogation.
Interrogation includes “any words or actions on the part of the
police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response
from the suspect.” [Innis, 446 U.S. at 301]; see People v. Gonzales, 987
P.2d 239, 241 (Colo. 1999). Whether the defendant was subject to
interrogation depends on the totality of the circumstances. See Gonzales,
987 P.2d at 241.
General on-the-scene questioning as to facts surrounding a crime
or other general questioning in the fact-finding process which enables an
officer to determine what has happened and who has been injured is not
an interrogation under Miranda. See People v. Denison, 918 P.2d 1114,
1116 (Colo. 1996); People v. Baird, 66 P.3d 183, 188 (Colo. App. 2002).
Here, the record reveals that Officer Cline responded to a call by
the victim’s family members to conduct a welfare-check on the victim.
Upon arriving at the victim’s apartment residence, the police made several
attempts to determine whether the victim was, in fact, inside the residence
but received no response. Officer Cline testified that while the police were
obtaining a key from management personnel to allow entry into the

19

State Court R. vol. 1, at 32-33. Applicant filed a second motion to suppress, id., vol. 1, at 48-49,
that he withdrew at the pretrial suppression hearing. Id., vol. 6, at 32.
20

Id., vol. 6, at 103.

9

victim’s residence, he saw a male, later identified as defendant, inside the
residence and ordered defendant to come out.
Officer Cline further testified that defendant jumped from a window
in the residence and that officers pursued, apprehended, and handcuffed
defendant. An officer on the scene then asked defendant whether the
victim was in the apartment, and defendant nodded. The officer then
asked whether the victim was dead or alive, and defendant shrugged his
shoulders. Another officer asked if the victim was okay, and defendant
responded, “I think she’s dead.”
The trial court found, with record support, that the purpose of the
officers’ on-scene questioning of defendant was to determine the victim’s
welfare and establish whether the victim was injured and needed aid. The
trial court noted that the officers were responding to a welfare-check call
and were unable to ascertain whether the victim was inside the residence
and, if she was, whether she needed medical attention. The trial court
determined that, although defendant was in custody at the time the
officers questioned him, their inquiry did not constitute interrogation for
purposes of Miranda but rather was directed to determining what
happened and whether the victim was injured. See Denison, 918 P.2d at
1116.
We perceive no error by the trial court. Accordingly, a Miranda
advisement was not required.21
The state appellate court’s factual findings are presumed correct on federal
habeas review and are supported by the state court record.22 Applicant has not
rebutted those findings with any clear and convincing evidence to the contrary.23 The
evidence shows that within a minute of Applicant being placed in handcuffs, Officer
Couture asked him if the victim was inside the apartment and if she was dead or alive.
At that time, Officer Couture did not know the Applicant’s identity. Officer Cline then
asked the Applicant his name and if the victim was “okay,” to which the Applicant
21

Warrener I, Doc. # 6-4, at 3-5.

22

See State Court R., vol. 6, at 35-55, 66-71, 98-103.

23

See 28 U.S.C. § 2254(e)(2).

10

responded “I think she is dead.” Under these circumstances, it was reasonable for the
state appellate court to conclude that Officer Couture’s question “is she dead or alive,”
was not evocative, but was rather an on-the-scene investigatory attempt to determine
whether the victim was inside the apartment and if she needed medical attention. The
Court therefore finds that the Court of Appeals’ determination that Applicant was not
subject to an interrogation, and, therefore, no Miranda advisement was required, was
consistent with Innis and Miranda.
However, even if the admission of Applicant’s statements to the police at trial
violated his Fifth Amendment rights, Applicant is not entitled to federal habeas relief
unless the constitutional error had a “substantial and injurious effect or influence” on the
jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted).
Put differently, the constitutional violation must have “have resulted in ‘actual prejudice’”
Brecht, 507 U.S. at 637. At Applicant’s trial, police officers testified that they entered
the victim’s apartment in response to a welfare check call placed by the victim’s father,
minutes after the Applicant fled the apartment through a window, and found the victim’s
body inside a bedroom, wrapped in plastic and covered with a sheet.24 Baby powder
was spread over the victim’s body.25 The victim had suffered stab wounds to her chest
and back and had defensive injuries to her hands.26 Police found clothing and bedding
in the washing machine and a knife in the kitchen sink. Baby powder seized from the

24

State Court R. vol. 10, at 127-136, 143-149.

25

Id. at 149.

26

Id. at 72, 77.

11

apartment bore the Applicant’s fingerprints.27 A large area of blood on the carpet in the
bedroom where the victim was found was covered in detergent.28 Applicant’s
fingerprints were found on a carpet cleaning machine that also contained the victim’s
blood.29 Applicant’s cell mate during his pretrial detention testified that Applicant
confessed the following details about the crime, which largely corroborate the other
evidence presented at Applicant’s trial: he killed a woman named “Karen” who he had
been seeing romantically with a big knife he found in her kitchen and placed her body in
plastic bags; he then cleaned the knife and the apartment with cleaning supplies and
tried to escape through a bathroom window when the police arrived at the front door.30
Based on the evidence of Applicant’s guilt presented at trial, the Court finds that
the additional introduction of Applicant’s statement to the police that the victim was dead
inside the apartment, without his admission to being the perpetrator, did not make it
more likely in the jurors’ minds that Applicant committed the crimes than the evidence
already before them. As such, any constitutional error in admitting the evidence did not
change the outcome of Applicant’s trial and does not warrant federal habeas relief.

27

Id. vol. 10, at 194, 214; vol. 12 at 201, 290-91.

28

Id. vol. 10, at 147-49 .

29

Id., vol. 12, at 198, 291.

30

Id. vol. 11, at 136-142.

12

2. Violation of Fourteenth Amendment Due Process Rights
On direct appeal of his conviction, Applicant also asserted that the trial court’s
admission of his statements to the police violated his Fourteenth Amendment due
process rights because the statements were not voluntary.31
Due process prohibits conviction of a defendant based, “in whole or in part, upon
an involuntary confession.” Jackson v. Denno, 378 U.S. 368, 376 (1964). Statements
are voluntary if they are the product of an individual’s free and rational choice.
Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968). The question is whether the
individual’s will has been overborne. Townsend v. Sain, 372 U.S. 293, 307 (1963). To
be voluntary, a statement “must not be extracted by any sort of threats or violence, nor
obtained by any direct or implied promises, however slight, nor by the exertion of any
improper influence.” Brady v. United States, 397 U.S. 742, 753 (1970).
In making the voluntariness determination, the trial court must consider the
totality of the circumstances surrounding the defendant’s statement. Clewis v. Texas,
386 U.S. 707, 708 (1967). The burden is on the prosecution to prove by a
preponderance of the evidence that the statement was made voluntarily. Lego v.
Twomey, 404 U.S. 477, 489 (1972). “[C]oercive police activity is a necessary predicate
to the finding that a confession is not ‘voluntary.’” Colorado v. Connelly, 479 U.S. 157,
167 (1986).
At the pretrial suppression hearing, the state trial court ruled that, under the
totality of the circumstances, there was nothing coercive which overbore Applicant’s will

31

See Doc. #6-1, at 13-15.

13

not to answer the officers’ questions.32 The trial court found that the officers’ method of
questioning was brief and directed to determining the welfare of the victim.33 The trial
court observed that Applicant “was probably sweating, having run, jumped out of the
building, run across the street and tried to climb a 6-foot fence before he was
apprehended.”34 Relying on the officers’ testimony, the court found no evidence that
Applicant was injured during the seizure. The court further found that Applicant was
not intoxicated or impaired, and that Applicant responded to the officers’ questions
appropriately.35 The trial court denied the motion to suppress, stating: “I don’t find
anything coercive about this. Even though he was handcuffed at that time, he was
kneeling on the street, at that point in time he was asked questions. There were no guns
drawn.”36
On direct appeal, the state appellate court determined that the trial court’s
findings of fact were supported by the record and concluded that the trial court did not
err in admitting the Applicant’s statements at trial.37 Again the state court’s factual
findings are presumed correct in this federal habeas proceeding. This Court agrees that
those findings are supported adequately by the state court record. Applicant has not
pointed to any clear and convincing evidence to show that his will was somehow
overborne by the police or that the police engaged in any coercive or other improper

32

State Court R. vol. 6, at 98-105.

33

Id. at 104.

34

Id.

35

Id. at 99, 104.

36

Id. at 105.

37

Warrener I, Doc. # 6-4, at 6-7.

14

conduct. Accordingly, the Court finds that the state appellate court’s determination of
Applicant’s due process claim was reasonable in light of the evidence presented in the
state court proceeding and comports with the Supreme Court standards discussed
above. Applicant therefore cannot prevail on his first claim for relief.
B. SIXTH AMENDMENT CONFRONTATION RIGHT - CROSS-EXAMINATION
Applicant asserts in claim two that his Sixth Amendment right to confront adverse
witnesses was violated when the trial court limited cross-examination of his former cell
mate regarding the alleged “reward” he received for testifying against Applicant.
The Confrontation Clause of the Sixth Amendment guarantees the right of an
accused in a criminal prosecution “to be confronted with the witnesses against him.”
U.S. Const. amend. VI. “The main and essential purpose of confrontation is to secure
for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308,
315-316 (1974) (internal quotation marks omitted). The constitutionally protected right
of cross-examination includes exposure of a witness' motivation in testifying. Id. at
316-317. However, the Confrontation Clause does not prevent the trial court from
imposing any limits on defense counsel's inquiry into the potential bias of a prosecution
witness. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Trial judges have wide
discretion “to impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally relevant.” Id. “[T]he
Confrontation Clause guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the defense

15

might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in
original). However, a trial court may violate a defendant’s confrontation rights by
prohibiting all inquiry into an event that “a jury might reasonably have found furnished
the witness a motive for favoring the prosecution in his testimony.” Van Arsdall, 475
U.S. at 679.
Applicant contends that the trial court restricted improperly his cross-examination
of a former cell mate regarding the witness’s motive for testifying against Applicant at
trial. On direct appeal, the state appellate court found that the Applicant was able to
explore on cross-examination the witness’ potential motive for testifying based on the
following information elicited by defense counsel:
• The witness, who had sustained several felony convictions, was familiar
with the criminal justice system and knew about plea bargains.
• When he met defendant, the witness was charged with a class three
felony that could have yielded a sentence of ten to thirty-two years.
Additionally, the witness was potentially subject to habitual criminal
charges. In essence, the witness was “looking at a whole bunch of time.”
• The witness met with police officers and told them that he could provide
information about his own case (possibly to identify other participants).
The witness also talked about defendant’s case and suggested that, if the
police needed more information, the witness could get more.
• After meeting with the police, the witness was allowed to plead guilty to a
class six felony so that he could receive a sentence of fifteen months.38
The Colorado Court of Appeals rejected Applicant’s argument that the trial court
erred in refusing to allow him to elicit the additional fact that “[i]n September 2004,
before meeting with police, the witness had waived his right to a preliminary hearing; at

38

Warrener I, Doc. # 6-4, at 9-10.

16

that time, the prosecution had offered to allow the witness to plead guilty to a class five
felony if he provided information about his own case.”39 The state appellate court
determined that this additional information would have necessitated further evidence
from the prosecution–such as the testimony of the prosecutor who had handled the
witness’s case–to rebut the defendant’s line of reasoning, which would have been “of
marginal probative value, time consuming, and potentially misleading.”40 The Colorado
Court of Appeals concluded that Applicant was allowed sufficient opportunity to explore
the witness’s motive for testifying and found no abuse of discretion in the court’s
ruling.41
Again, the state appellate court’s factual findings are afforded a presumption of
correctness on federal habeas review. The state court record demonstrates that,
although the trial court placed some limitations on counsel’s cross-examination, counsel
was able to explore effectively the witness’ possible motive and bias for testifying as a
prosecution witness.42 Applicant’s contention on direct appeal that counsel should have
been allowed to inquire about the prosecutor reserving the right to bring habitual
criminal charges against Applicant’s cell mate at the time of his preliminary hearing
waiver was not supported by the evidence presented to the state trial court, and was
largely superfluous given the witness’ testimony that he was facing a prison sentence of
up to thirty-two years on his current charge. Applicant does not offer any other
39

Id. at 11.

40

Id.

41

Id.

42

State Court R. vol. 11, at 154-167, 171-73.

17

evidence to support his claim that the scope of his cross-examination of the cell mate
was restricted improperly on the issue of motive and potential bias. As such, the Court
finds that the Court of Appeals’ resolution of Applicant’s second claim was a reasonable
application of controlling Supreme Court law. Applicant therefore is not entitled to
federal habeas relief.
C. FAILURE TO DETERMINE APPLICANT’S COMPETENCY FOR TRIAL
For his third claim, Applicant asserts that his Fourteenth Amendment right to due
process was violated when the trial court failed to have him evaluated for competence
to stand trial. During the trial court’s advisement43 concerning Applicant’s right to testify,
the following colloquy occurred:
Q [Court]: Now, when you say – you just said that Mr. Warrener is actually
under the influence of certain medications. What I want to find out is
again, and maybe I’d better inquire, I don’t want that staining on the record
here. Mr. Warrener, I understand that you’ve taken some medications that
you’ve identified earlier; is that right?
A [Applicant]: Yes, sir.
Q: Do you feel that either of those drugs, and perhaps in combination that
you’ve taken, are interfering with your thinking process, your thought
process?
A: It’s possible, I’m not sure.
Q: Well, before you told me that even though you were taking those drugs –
A: I don’t believe so.
Q: Pardon me?

43

The subject came up during the advisement required by People v. Curtis, 681 P.2d 504 (Colo.
1984), after the trial court asked whether Applicant was under the influence of any alcohol, drugs, or
medications. (Doc. # 6-2, at 20, 23).

18

A: I don’t believe that they are.
Q: Okay. Well are you having any trouble or difficulty understanding what I’m
saying to you?
A: No, sir.
Q: And when I went through before and read to you your right to choose to
testify, you told me you understood that, correct?
A: Yes, sir.
Q: Do you have any other questions you want to ask me about the right to
choose to testify?
A: No, sir.44
After Applicant reassured the trial court that he understood his right to testify and
that he had twice discussed this decision with his attorney, he disclosed that the
medications had not “been helping [him] too much” and claimed that he “hear[d] voices”
and “hallucinate[d],” and had been diagnosed with “post traumatic stress syndrome,
bipolar with psychosis, paranoi[d] delusions and severe anxiety and manic depressive
disorder.”45
The following exchange then occurred:
Q [Court]: Okay. Now, understand again as I’ve said, this is a stressful
time and a stressful decision, but it’s a decision you have to make. Do you
understand that?
A [Applicant]: Yes. Yes, sir.
Q: Do you at this time feel that in any way because of the medication, the
Geodon or the Wellbutrin that you’re just unable to make this decision?

44

State Court R. vol. 13, at 113-14.

45

Id. at 115-16.

19

A: No, sir.
Q: Okay. So you feel that notwithstanding taking these medications that
are treating these conditions, you understand what you’re doing, correct?
A: Yes, sir.
Q: And you’re making a voluntary decision; is that right?
A: Yes, sir.
Q: And you have no other questions about your right to choose to testify or
not to testify, correct?
A: No, sir.
Q: Okay. Thank you.46
Based on those responses, the trial court found that “although [Applicant is]
taking these medications it [has] not interfered with his ability to [understand and]
appreciate what [his] rights are, and to make a knowing, voluntary and intelligent
waiver”of his right to testify.47
Due process requires a trial court to hold a competency hearing when the
evidence before it raises a “bona fide doubt” about whether a defendant is mentally
competent. Pate v. Robinson, 383 U.S. 375, 385 (1966). A bona fide doubt exists if “a
reasonable judge should have experienced doubt” about the defendant’s competency.
McGregor v. Gibson, 248 F.3d 946, 954 (10th Cir. 2001); Nguyen v. Reynolds, 131 F.3d
1340, 1346 (10th Cir. 1997) (bona fide doubt requires defendant to present facts

46

Id. at 117-18.

47

Id. at 118.

20

“sufficient to positively, unequivocally and clearly generate a real, substantial and
legitimate doubt concerning his mental capacity”) (internal quotation omitted).
In a habeas proceeding, the petitioner must show the trial court “fail[ed] to give
proper weight to the information suggesting incompetence which came to light during
trial.” McGregor, 248 F.3d at 955 (citing Drope v. Missouri, 420 U.S. 162, 179 (1975));
see also Valdez, 219 F.3d at 1240 (petitioner must show that “the trial court ignored
evidence, which viewed objectively, raised a bona fide doubt regarding [petitioner's]
competency to stand trial.”). Factors relevant to determining a defendant’s competence
include evidence of a defendant’s irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial. Drope, 420 U.S. at 180.
The state appellate court resolved Applicant’s claim as follows:
The record demonstrates that although defense counsel advised
the trial court that defendant was under the influence of certain
medications, defense counsel did not indicate that defendant was
incompetent within the meaning of [COLO. REV. STAT. ] § 16-8-102(3)] .
. . Defense counsel did not assert that defendant did not understand the
nature of the proceedings or lacked a present ability to consult with his
counsel. Nor did defense counsel request further inquiry into defendant’s
competence to stand trial or request a competency hearing.
The record does not support a finding that defense counsel’s
representation to the court that defendant was under the influence of
medication and defendant’s responses to inquiry by the trial court raised a
“bona fide doubt” as to defendant’s competence such that the trial court
was required to suspend proceedings and order a competency hearing.
[state case law citation omitted]. Accordingly, we conclude the trial court
did not abuse its discretion in determining defendant competent for trial
and proceeding without a competency hearing.48

48

Warrener I, Docket #6-4, at 14-15.

21

The Court finds that the state appellate court’s determination was not
unreasonable in light of the evidence presented to the state trial court. Applicant did not
offer any objective or medical evidence of his incompetency during the trial proceeding,
and particularly during the court’s advisement of his right to testify in his own defense.
Defense counsel never questioned Applicant’s competency during the trial proceeding
and did not contradict Applicant’s statements to the trial court that he understood his
Fifth Amendment right to testify and waived that right voluntarily. In short, there nothing
in the record to support Applicant’s belated argument that he was not competent during
the trial proceeding. Accordingly, the Court of Appeals’ determination of Applicant’s
claim was consistent with federal law and Applicant is not entitled to federal habeas
relief.
D. SIXTH AMENDMENT CONFRONTATION RIGHT - ADMISSION OF HEARSAY
Applicant asserts in claim four that his Sixth Amendment confrontation right was
violated when the trial court admitted, through a police officer’s testimony, the victim’s
hearsay statements made to the officer about a prior domestic violence dispute
involving the Applicant. The police officer testified at trial that approximately one year
prior to the victim’s death, he responded to a domestic disturbance call and met the
reporting party (the victim) at a King Soopers parking lot.49 The victim told him that her
boyfriend (Applicant) was angry with her because she had left the apartment to get
food and did not return with any cigarettes for him.50 According to the victim, an

49

State Court R. vol. 11, at 20.

50

Id. at 22.

22

argument ensued at the victim’s apartment; Applicant followed the victim into the
bathroom and pushed her backwards, causing her to hit her head on the towel rack; the
victim then left the apartment and called the police.51
Applicant moved to exclude the evidence before trial. The trial court ruled that
because Applicant pled guilty to harassment and domestic violence based on the prior
incident, he knowingly, voluntarily and intelligently waived his right to confront and
cross-examine the victim with respect to her hearsay statements for purposes of the
pending murder charges.52
The trial court’s admission of an unavailable witness’s testimonial statements
against a defendant at trial violates the defendant’s confrontation rights when the
defendant has no opportunity to cross examine the witness. Crawford v. Washington,
541 U.S. 36 (2004). The Supreme Court has not provided an exhaustive classification
of all conceivable statements that are testimonial or non testimonial in nature. In Davis
v. Washington, 547 U.S. 813 (2006), however, the Supreme Court recognized that
statements are testimonial when the circumstances of a police interrogation “objectively
indicate that there is no . . . ongoing emergency, and that the primary purpose . . . is to
establish or prove past events potentially relevant to later criminal prosecution.” Davis,
547 U.S. at 822.
A defendant may forfeit his confrontation rights by wrongdoing. Crawford, 541
U.S. at 62 (citing Reynolds v. U.S., 98 U.S. 145, 158 (1878) (“The Constitution does not

51

Id. at 22-23.

52

Id. vol. 8, at 26-29.

23

guarantee an accused person against the legitimate consequences of his own wrongful
acts)).
On appeal, the Colorado Court of Appeals determined that the trial court erred in
concluding that Applicant’s guilty plea to the harassment offense in 2003 waived his
right to confront the victim regarding the use of her hearsay statements against him in
the pending murder case.53 The state appellate court further acknowledged the
potential applicability of the doctrine of forfeiture by wrongdoing, but recognized that it
had not been demonstrated by a preponderance of the evidence, as required by
Colorado law.54 The Colorado Court of Appeals therefore concluded that, to the extent
a Confrontation Clause violation occurred, the constitutional error was harmless beyond
a reasonable doubt.55
Under Chapman v. California, 386 U.S. 18, 24 (1967), a constitutional error is
harmless if it appears “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Here, in light of the evidence offered by the
prosecution in support of Applicant’s guilt, the Court concludes that the state appellate
court’s holding was not an unreasonable application of Chapman's federal harmless
error standard. See Spears v. Mullin, 343 F.3d 1215, 1233 n.14 (10th Cir. 2003)
(instructing that when “there is a state-court-Chapman determination to defer to under
28 U.S.C. § 2254(d),” the court must decide “whether the state court's finding of
harmless error was contrary to or an unreasonable application of Chapman”). The prior
53

Warrener I, Doc. #6-4, at 19.

54

Id. at 20.

55

Id. at 21.

24

act of domestic violence described by the victim’s hearsay statement and admitted
through the testimony of a police officer, occurred eleven months prior to the victim’s
death. The police officer testified that the victim did not suffer any significant injuries
from the incident, unlike the violent stabbing that occurred almost a year later and was
the basis for the murder trial. Furthermore, the victim’s hearsay statement was not the
only evidence of Applicant’s prior relationship with the victim. A witness who lived in the
same apartment building as the victim testified that during the late Spring of 2004, he
talked to Applicant several times outside the victim’s apartment and that Applicant told
the witness that he was outside because the victim had “asked him to leave.”56
Moreover, as discussed in claim one, the evidence at trial amply supports the guilty
verdict, without the admission of the hearsay statement of the victim. Accordingly, the
Court finds that the state appellate court’s determination that any Confrontation Clause
error at Applicant’s trial was harmless beyond a reasonable doubt was consistent with
Chapman. Applicant therefore cannot prevail on his fourth claim.
E. ADMISSION OF PRIOR DOMESTIC VIOLENCE INVOLVING THE VICTIM
For his fifth claim, Applicant asserts that his Fourteenth Amendment due process
right to a fair trial was violated when the trial court admitted evidence of a prior domestic
violence incident involving Applicant and the victim.
At a pretrial motions hearing, the trial court ruled that evidence of a prior
domestic violence incident involving the Applicant, that occurred approximately one year
before the homicide, during which Applicant pushed the victim inside her bathroom and

56

Id., vol. 11, at 13-16.

25

caused her to hit her head on a towel rack, was admissible under state evidentiary
rules.57 The state appellate court affirmed the trial court’s ruling on direct appeal.58
This federal habeas court does not review the state court’s rulings of state
evidentiary law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the
province of a federal habeas court to reexamine state-court determinations on state-law
questions”). Absent a showing that the admission of evidence violated a specific
constitutional right, a federal habeas court will not disturb the state court's evidentiary
rulings unless the admission of the evidence was “so grossly prejudicial that it fatally
infected the trial and denied the fundamental fairness that is the essence of due
process.” Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (internal quotation marks
omitted); see also Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001). Even if the
admission of the evidence was of constitutional magnitude, Applicant cannot prevail in
this habeas proceeding unless he shows that the evidence had a substantial and
injurious influence on the jury’s verdict. See Brecht, 507 U.S. at 637.
The prior domestic violence incident is also the subject of Applicant’s
confrontation claim asserted in claim four. The Court has already determined that the
admission of the evidence did not actually prejudice him at trial. Applicant cannot
prevail on his fifth claim for the same reason that his fourth claim fails.

57

Id., vol. 8, at 32-34.

58

Warrener I, Docket # 6-4, at 24-25.

26

F. FAILURE TO GIVE JURY INSTRUCTION
In claim six, Applicant asserts that the trial court violated his Fourteenth
Amendment right to a fair trial by refusing to instruct the jury on Colorado’s heat of
passion mitigator.
The state trial court instructed the jury on the charged offense of first degree
murder–after deliberation and the lesser included offense of second degree murder.59
The trial court rejected Applicant’s request to instruct the jury on the heat of passion
mitigator, finding that there was no evidence to support it.60
Under Colorado law, provocation is not an element of second degree murder, but
acts as a mitigating factor, lowering the offense from a class 2 felony to a class 3 felony
where:
(1) the act causing the death was performed upon a sudden heat of
passion; (2) caused by a serious and highly provoking act of the intended
victim; (3) affecting the defendant sufficiently to excite an irresistible
passion in a reasonable person; and (4) there was an insufficient interval
of time between the provocation and the killing for the voice of reason and
humanity to be heard.
See § 18-3-103 (3), C.R.S. (2010).
As an initial matter, the Supreme Court has never recognized a federal
constitutional right to a lesser included offense instruction in a non-capital case. See
Beck v. Alabama, 447 U.S. 625, 638 n.14 (1980); Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004). As such, claim six fails to clear the first tier of the AEDPA standard of
review. See Wright, 552 U.S. at 126; House, 527 F.3d at 1017.

59

State Court R. vol. 1, at 260, 264.

60

Id., vol. 13, at 86.

27

Even if Applicant’s claim does not founder at the outset, it faces a high hurdle.
“As a general rule, errors in jury instructions in a state criminal trial are not reviewable in
federal habeas corpus proceedings, unless they are so fundamentally unfair as to
deprive petitioner of a fair trial and to due process of law.” Nguyen, 131 F.3d at 1357
(internal quotation marks and citation omitted); see also Maes v. Thomas, 46 F.3d 979,
984 (10th Cir. 1995) (“A state trial conviction may only be set aside in a habeas
proceeding on the basis of erroneous jury instructions when the errors had the effect of
rendering the trial so fundamentally unfair as to cause a denial of a fair trial.”). Thus, a
habeas petitioner’s burden in attacking a state court judgment based on a refusal to
give a requested jury instruction is onerous because “‘[a]n omission, or an incomplete
instruction, is less likely to be prejudicial than a misstatement of the law.” Tyler v.
Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999) (quoting Henderson v. Kibbe, 431 U.S.
145, 155 (1977)).
To determine whether the state trial court's refusal to instruct the jury concerning
heat of passion mitigation violated Applicant’s federal constitutional right to due process,
the Court looks to Colorado law to evaluate whether, under state law, Applicant was
entitled to such an instruction. Tyler, 163 F.3d at 1227.
In this case, however, the Colorado Court of Appeals did not decide whether
Applicant was entitled to the heat of passion instruction, but concluded that:
. . . because the jury convicted defendant on the greater offense, any error
by the trial court in failing to give a heat of passion instruction was
harmless beyond a reasonable doubt. See, e.g., Mata-Medina v. People,
71 P.3d 973 (Colo. 2003)(noting that where a jury receives an
intermediate offense instruction but convicts on a greater offense, failure

28

to give the lesser offense instruction is neither inherently prejudicial nor a
denial of a fair trial).61
The Court finds that the state appellate court’s determination of Applicant’s claim
was not contrary to or an unreasonable application of clearly established federal law.
The jury convicted Applicant of first degree murder–after deliberation and rejected the
charge of second degree murder. The heat of passion instruction was only relevant to
the offense of second degree murder. Because the jury found that the prosecution
proved all the elements of first degree murder–after deliberation beyond a reasonable
doubt, there is no possibility that Applicant was prejudiced by the trial court’s failure to
instruct on the heat of passion mitigator. The trial court’s failure to instruct the jury on
the heat of passion mitigator thus did not render Applicant’s trial fundamentally unfair
and he cannot prevail on his sixth claim.
G. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
For his seventh claim, Applicant asserts that he was deprived of his Sixth
Amendment right to effective assistance of trial counsel when counsel did not seek a
voluntary intoxication instruction and failed to present an insanity defense.
To prevail on his claim of ineffective assistance of counsel, Applicant 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

61

Warrener I, Doc. # 6-4, at 25-27.

29

been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914
(10th Cir. 1999) (internal quotations omitted). Prejudice exists when there is a
reasonable probability that, but for counsel’s defective representation, the result of the
proceeding would have been different. Strickland, 466 U.S. at 693. The Court need not
address both prongs of the Strickland inquiry if Applicant’s claim fails on one. Id. at 697.
1. Voluntary Intoxication Instruction
The state appellate court applied the Strickland standard and rejected Applicant’s
ineffective assistance of counsel claim based on the following reasoning:
Defendant argues that, because he had been using methamphetamine
prior to and after the killing, trial counsel should have sought a voluntary
intoxication instruction in order to allow the jury to find that he did not have
the specific intent to kill the victim. We are not persuaded.
Evidence of voluntary intoxication may be offered by the defendant when it
is relevant to negate the existence of intent to commit a specific intent
crime, such as first degree murder - after deliberation or second degree
burglary. See §§ 18-1-804(1), 18-3-102(1)(a), 18-4-203(1), C.R.S. 2009.
Self-induced intoxication, however, is not a defense to second degree
murder. See § 18-3-103(2), C.R.S. 2009.
Here, trial counsel’s theory of defense was that an alternate suspect killed
the victim. Defendant argues that counsel “abandoned” this defense by
asking for an instruction on second degree murder and the heat of passion
mitigator to that offense. See § 18-3-103(1), (3)(b), C.R.S. 2009. However,
it appears counsel made a strategic choice to pursue a theory of reduced
culpability, i.e., murder committed in a heat of passion, in the event the
jury did not accept the alternate suspect defense. A choice by counsel to
pursue voluntary intoxication essentially would have amounted to an “all or
nothing” strategy because the jury would have had to choose between first
degree murder and outright acquittal.
More importantly, the trial evidence of defendant’s alleged intoxication
indicated that he ingested methamphetamine after the victim was killed
and did not support a conclusion that he was intoxicated at the time of the
killing. The only evidence of methamphetamine use prior to the murder
was testimony from another jail inmate who “got the impression”
defendant had been taking methamphetamine for three days before the
30

murder, but defendant told him he took methamphetamine after he
discovered the body. And, the record does not support defendant’s
assertion that he was sent to the hospital for a drug overdose after he was
arrested.
Therefore, as the majority of the evidence showed that defendant became
voluntarily intoxicated after the killing, we cannot say that counsel’s
strategic choice to pursue an alternate theory to allow the jury a choice
between first or second degree murder fell below the standard of a
competent defense attorney. See Strickland, 466 U.S. at 690 (“strategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable”); . . . .62
Applicant offers no evidence to rebut the state appellate court’s factual findings
which are supported by the state court record.63 Because the only evidence that
Applicant was intoxicated before the killing was the equivocal testimony of his former
cell mate, the state appellate court determined reasonably that trial counsel’s choice to
pursue an alternative defense theory was sound trial strategy. “[W]here it is shown that
a particular decision was, in fact, an adequately informed strategic choice, the
presumption that the attorney's decision was objectively reasonable becomes ‘virtually
unchallengeable.’” Bullock v. Carver, 297 F.3d 1036, 1046 (10th Cir. 2002) (quoting
Strickland, 466 U.S. at 690); see also Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir.
2000) (decisions based on trial strategy only rise to the level of ineffective assistance of
counsel if they are “completely unreasonable, not merely wrong, so that they bear no
relationship to a possible defense strategy.”) (quotation and alteration omitted). Further,
counsel's failure to seek a voluntary intoxication instruction was reasonable because the
instruction would have conflicted with his trial strategy to pursue a theory of reduced

62

Warrener II, Docket # 6-13, at 5-6.

63

See State Court R. vol. 14, at 36-38, 59.

31

culpability – i.e., murder committed in a heat of passion. See Jackson v. Shanks, 143
F.3d 1313, 1320 (10th Cir. 1998). Although counsel’s chosen strategy was ultimately
unsuccessful, a “fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective
at the time.” Strickland, 466 U.S. at 689. The Court finds that the state appellate court’s
determination was reasonable under Strickland and Applicant therefore cannot prevail
on his claim that trial counsel was constitutionally ineffective in failing to pursue a
voluntary intoxication defense.
2. Insanity Defense
Applicant also asserts that he was deprived of his Sixth Amendment right to
effective assistance of trial counsel when counsel failed to present an insanity defense.
The Colorado Court of Appeals again applied the Strickland standard and
rejected Applicant’s claim based on the following reasoning:
Defendant also argues that trial counsel should have asked the court to
order a mental health examination prior to trial to explore the possible
defense of insanity or impaired mental condition. The trial court concluded
that this issue had been raised and resolved on direct appeal. We
conclude the court correctly denied this claim, although we base our
conclusion on slightly different grounds. See People v. Aarness, 150 P.3d
1271, 1277 (Colo. 2006).
Defendant raised a similar contention on direct appeal when he argued
that he should have received an evaluation of his competency to stand
trial during his mid-trial advisement regarding his right to testify. The
division rejected the argument, finding that the record did not support that
conclusion. Warrener I.
In his Crim. P. 35(c) motion, defendant alleged that he was not
responsible for his actions because he was taking a psychotropic drug and
on methamphetamine at the time the victim was killed. As noted above,
32

however, the trial evidence did not substantiate defendant’s claim that he
took methamphetamine before the murder. Further, the circumstances
surrounding his arrest and subsequent questioning by the police, which
defendant does not dispute, fail to raise a reasonable inference that
defendant was either insane or suffering from an impaired mental
condition at the time of the crimes. Defendant does not otherwise allege
facts that would establish his entitlement to either of these defenses. See
§ 16-8-101.5(2)(b), C.R.S. 2009 (“mental disease or defect” must not be
attributable to voluntary ingestion of any psychoactive substance).
Therefore, defendant failed to demonstrate that counsel was ineffective in this
regard.64
Again, the state appellate court’s factual findings are accorded a presumption of
correctness in this federal habeas proceeding. The Court has reviewed the state court
record and relevant portions have been cited throughout this decision. Nothing in the
state court proceedings would have reasonably required a prudent attorney to pursue a
psychiatric or competency evaluation of Applicant prior to trial or during the trial
proceeding. See Mayes v. Gibson, 210 F.3d 1284, 1289 n. 3 (10th Cir. 2000) (counsel's
failure to obtain psychiatric evaluation did not amount to deficient performance where
nothing in record would have caused a reasonable attorney to believe that petitioner's
mental condition was a potentially mitigating factor); see also Sallahdin v. Gibson, 275
F.3d 1211, 1236 (10th Cir. 2002) (“When counsel declines to present a defense for
which there is no arguable basis, in law or in fact, counsel's performance is not
deficient.”). Applicant has not pointed to any clear and convincing evidence that would
have prompted counsel to inquire as to whether he suffered from a mental disease or
defect within the meaning of C.R.S. § 16-8-101.5(1)(b). The Court therefore finds that

64

Warrener II, Doc. # 6-13, at 7-8.

33

the state appellate court’s resolution of Applicant’s claim comports with Strickland.
Applicant cannot prevail on his seventh claim.
V. ORDER
Accordingly, it is
ORDERED that the Application For A Writ Of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (Doc. # 1) is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that a certificate of appealability shall not issue because
Applicant has not made a substantial showing of the denial of a constitutional right.65
DATED this

30th

day of November, 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

65

28 U.S.C. § 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529
U.S. 473, 483–85 (2000).

34