Robinson v. Smelser et al

Filing 34

ORDERED that the Application For A Writ Of Habeas Corpus Pursuant to 28U.S.C. § 2254 1 is DENIED WITH PREJUDICE. ORDERED that a certificate of appealability shall not issue because Applicant has not made a substantial showing of the denial of a constitutional right. ORDERED that leave to proceed in forma pauperis on appeal is DENIED by Chief Judge Wiley Y. Daniel on 04/17/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 11-cv-00659-WYD
BYRON ROBINSON,
Applicant,
v.
RICHARD SMELSER, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING PETITION FOR HABEAS CORPUS

The matter before the court is an Application For A Writ Of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and supplement to Application (Doc. No. 12).
I have determined that the Application can be resolved on the parties' briefing and that
no oral argument or evidentiary hearing is necessary.1
I.

Background
Applicant was charged in El Paso County District Court Case No. 01CR4389 on

the following counts: first degree murder after deliberation, first degree felony murder,
attempted first degree murder, first degree burglary, four counts of violent crime-deadly
weapon, and three counts of child abuse. On May 5, 2003, he was convicted by a jury
of the lesser offense of reckless manslaughter and acquitted of the remaining charges.

1

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

The following is a summary of the evidence at Applicant’s trial, taken from the Colorado
Court of Appeals’ decision on direct appeal of his conviction:
According to the prosecution’s evidence, defendant and DB, his
son, went to the victim’s apartment. When the victim came outside at
DB’s request, defendant confronted him, an argument ensued, and
defendant punched the victim.
The victim then ran back into his apartment and attempted to shut
the door. Defendant, who was armed, forced the door open and entered
the apartment. During a struggle for defendant’s gun, the victim was
fatally shot. Three of the victim’s children were in the apartment at the
time.
Defendant’s theory of defense was that the victim had threatened to
get a gun, and that defendant’s actions in getting his gun out and forcing
his way into the apartment were in self-defense and defense of his son in
order to prevent the victim from getting a gun and shooting them.
Defendant contended the gun accidentally went off during the struggle
with the victim.2
On July 8, 2003, the state trial court imposed an aggravated sentence of twelve
years imprisonment with the Colorado Department of Corrections because Applicant
had prior felony and misdemeanor convictions.3
Applicant filed a direct appeal of his conviction, followed by a motion for post
conviction relief pursuant to Colo. Crim. P. Rule 35(c). At the conclusion of the state
post-conviction proceeding, he filed his § 2254 Application in this Court.
II.

Habeas Claims
Applicant filed pro se his Application for a Writ of Habeas Corpus on March 16,

2011. He asserts thirteen claims in the Application (as supplemented on April 20,

2

People v. Robinson, Case No. 04CA0283 (Colo. App. July 6, 2006) (unpublished); Doc. No. 7-6,

at 1.
3

State Court R. 7/8/03 Sentencing Hrg. Tr., at 44.

2

2011):
(1) The trial court violated his Sixth Amendment right to speedy trial;
(2) The trial court erred in its application of COLO. REV. STAT. (C.R.S.)
§ 18-6-401;
(3) The trial court’s admission of a child witness’s videotaped statements to the
police at trial violated his Sixth Amendment confrontation rights;
(4) The trial court erred in admitting the victim’s statement as an excited
utterance;
(5) The police lacked probable cause to arrest him and the trial court erred
in failing to suppress his statements to the police
(6) The trial court failed to provide the jury with tendered instructions;
(7) The trial court erred in imposing a discretionary sentence in the
aggravated range;
(8) Trial and appellate counsel were ineffective in failing to preserve his
constitutional right to a speedy trial;
(9) Trial counsel was ineffective in failing to investigate and present an
alibi defense;
(10) Trial counsel was ineffective in failing to file a motion to suppress
prejudicial evidence;
(11) Trial counsel was ineffective in failing to convey a possible plea offer;
(12) Trial counsel labored under a conflict of interest; and,
(13) Appellate counsel failed to raise issues on direct appeal, including the
trial court’s denial of a Shreck hearing and the denial of bail after trial.
Respondents have conceded that this action is timely filed pursuant to 28 U.S.C.
§ 2244(d).4 I have dismissed claims 2, 4, 6, part of claim 7 (trial court’s failure to comply
with a state statute), 8 and 13. I address the remaining claims on the merits under

4

Doc. No. 7, at 5.

3

AEDPA’s deferential standard of review, as discussed below.
III.

Legal Standard
A.

Habeas Corpus Actions

Because Applicant filed his Application after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that statute governs
the court's review.5 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). Applicant bears the burden of proof under § 2254(d).6
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim.7 In particular,
“determining whether a state court's decision resulted from an unreasonable legal or
factual conclusion does not require that there be an opinion from the state court
explaining the state court's reasoning.”8 Furthermore, “[w]hen a federal claim has been

5

Cannon v. Mullin, 383 F.3d 1152, 1158 (10th Cir. 2004) (citing Rogers v. Gibson, 173 F.3d 1278,
1282 n. 1 (10th Cir.1999)).
6

See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

7

Harrington v. Richter,

U.S.

, 131 S.Ct. 770, 784–85 (2011).

8

Id. at 784.

4

presented to a state court and the state court has denied relief, it may be presumed that
the state court adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.”9 Even “[w]here a state court's decision
is unaccompanied by an explanation, the habeas petitioner's burden still must be met by
showing there was no reasonable basis for the state court to deny relief.”10 In other
words, the federal habeas court “owe[s] deference to the state court's result, even if its
reasoning is not expressly stated.”11
The court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1).12 The threshold question the court must answer
under § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly
established by the Supreme Court at the time his conviction became final.13 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.”14 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.15

9

Id. at 784–85.

10

Id. at 784.

11

Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).

12

See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).

13

See Williams v. Taylor, 529 U.S. 362, 390 (2000).

14

Id. at 412.

15

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).

5

If there is no clearly established federal law, that is the end of the court’s inquiry
pursuant to § 2254(d)(1).16 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.17
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
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.18
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

16

See id. at 1018.

17

See Williams, 529 U.S. at 404–05.

18

House, 527 F.3d at 1018.

6

judgment would conclude the state court misapplied Supreme Court law.” Maynard,
468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.19
In conducting this analysis, the court “must determine what arguments or theories
supported or . . . could have supported[ ] the state court's decision” and then “ask
whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme] Court.”20
Moreover, “review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.”21
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.”22
As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.23
Claims asserting factual errors are reviewed pursuant to 28 U.S.C.

19

Richter, 131 S.Ct. at 786 (internal quotation marks omitted).

20

Id.

21

Cullen v. Pinholster,

U.S.

, 131 S.Ct. 1388, 1398 (2011).

22

Maynard, 468 F.3d at 671; see also Richter, 131 S.Ct. at 786 (stating that “even a strong case
for relief does not mean the state court's contrary conclusion was unreasonable”).
23

Richter, 131 S.Ct. 786–87.

7

§ 2254(d)(2).24 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 the state court. Pursuant to § 2254(e)(1), the
court presumes that the state court's factual determinations are correct and Applicant
bears the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]eference does not by
definition preclude relief.’”25
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the court must review the claim de novo and the deferential
standards of § 2254(d) do not apply.26
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
attorneys.”27 However, the Applicant's pro se status does not entitle him to an
application of different rules.28

24

See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002).

25

Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller–El v. Cockrell, 537 U.S. 322, 340

26

See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

(2003)).

27

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).
28

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

8

IV.

Legal Analysis
A.

Claim One

For his first claim, Applicant asserts that the state trial court violated his
constitutional right to a speedy trial due to a delay from November 4, 2002 to January 6,
2003.29 Applicant further asserts that his court-appointed counsel waived Applicant’s
right to speedy trial “over his objection.”30
The Sixth Amendment to the United States Constitution affords criminal
defendants the right to a speedy trial.31 In Barker v. Wingo, 407 U.S. 514, 530 (1972),
the Supreme Court directed the lower federal courts to consider the following four
factors in determining whether pretrial delays have violated a defendant’s constitutional
right to speedy trial: (1) length of delay; (2) the reason for the delay; (3) the defendant’s
assertion of his right; and, (4) prejudice to the defendant. The four factors must be
considered together along with other relevant circumstances.32
For purposes of the constitutional analysis, the speedy trial time period
commences when the defendant is first arrested or charged with committing a federal
offense and ends when his jury trial begins.33 The length of delay is a threshold factor.34

29

Doc. No. 1, at 5; Doc. No. 7-1, at 9. Although Applicant’s trial did not commence until April 28,
2003, Applicant does not challenge the delay in his case between January 6, 2003 and the trial date.
30

Id.

31

U.S. Const. amend. VI.

32

United States v. Toombs, 574 F.3d 1262, 1274 (10th Cir. 2009).

33

See United States v. Batie, 433 F.3d 1287, 1290 (10th Cir. 2006) (stating that the speedy trial
right attaches at the earlier of either arrest or indictment.).
34

Id.; see also Barker, 407 U.S. at 530.

9

If the delay is not presumptively prejudicial, the court need not inquire into the remaining
Barker factors.35
The Colorado Court of Appeals did not apply the Barker test to Applicant’s claim
on direct appeal of his conviction. Instead, the state appellate court analyzed
Applicant’s claim under the state speedy trial statute, § 18-1-405, C.R.S. (2010), which
the appellate court characterized as “implement[ing] the constitutional right to a speedy
trial.36 The Colorado Court of Appeals concluded that Applicant had waived his speedy
trial rights based on the following proceedings in the trial court:
[O]n August 15, 2002, defense counsel requested a continuance of
the November 4 trial date and told the court that defendant had signed a
speedy trial waiver. However, defendant stated that he was unwilling to
waive his speedy trial rights. The court denied the motion.
Defense counsel then moved for a continuance based on effective
assistance of counsel. Counsel attached a waiver signed by defendant
and dated August 8, 2002. The court granted the continuance to ensure
that defendant had effective assistance of counsel.
Later, new defense counsel moved to dismiss the charges based
on a violation of defendant’s speedy trial rights. After a hearing, the court
ruled, relying on People v. Jefferson, supra, that defendant had waived his
rights to speedy trial and that the waiver could not be revoked. We must
accept the court’s factual finding that defendant waived his right to speedy
trial where, as here, the record supports it. See People v. Jefferson,
supra.37
Under federal constitutional law, a defendant’s purported waiver of his speedy
trial right is not dispositive, but is instead considered under the Barker balancing test in

35

Id.

36

Doc. No. 7-6, at 2.

37

Doc. No. 7-6, at 3-4.

10

determining whether a constitutional violation has occurred.38 Because the state
appellate court did not fully analyze Applicant’s claim under the federal Constitution, this
Court reviews the claim de novo.39
Under the first Barker factor, I find that the more than thirteenth-month delay
between Applicant’s arrest on November 13, 200140 and the January 6, 2003 trial
setting was presumptively prejudicial. “Delays approaching one year generally satisfy
the requirement of presumptive prejudice.” Batie, 433 F.3d at 1290 (citing Doggett v.
United States, 505 U.S. 647, 652 n. 1 (1992)); Jackson v. Ray, 390 F.3d 1254, 1261
(10th Cir. 2004).
The second Barker factor requires me to consider the reason for the delay. The
reason for a delay weighs against the government in proportion to the degree to which
the government caused the delay.41 Continuances requested by the defendant are not
attributed to the government.42 On June 3, 2002, the trial court appointed alternate
defense counsel (ADC) for Applicant, after the public defender was removed from the
case at Applicant’s request due to an asserted conflict-of-interest stemming from his
dissatisfaction with counsel’s representation.43 During a June 25, 2002 hearing,
Applicant agreed in open court to a continuance of the August 2002 trial date to

38

See Barker, 407 U.S. at 528-29, 531-32.

39

See Gipson, 376 F.3d at 1196.

40

State Court R. File, at 10-11 of 557.

41

Batie, 433 F.3d at 1291.

42

See United States v. Tranakos, 911 F.2d 1422, 1428 (10th Cir.1990).

43

See State Court R. File, at 134 of 558; see also 6/4/02 Hrg. Tr.

11

November 4, 2002, so that his newly-appointed ADC could prepare adequately for
trial.44 On September 5, 2002, ADC requested a further continuance on the grounds
that he needed additional time to review voluminous discovery, to interview the 200
persons identified as potential witnesses, and to review and consider recently
discovered evidence which may contradict the defense theory of the case.45 ADC
advised the trial court at the September 5, 2002 hearing that if he proceeded to trial on
November 4, 2002, it would be “legal suicide.”46 Applicant objected to the requested
continuance.47 The trial court found, over Applicant’s objection, that a continuance was
warranted to preserve Applicant’s Sixth Amendment right to effective assistance of
counsel at trial.48 The trial court thus continued the trial to January 6, 2003.
I find that the second favor weighs slightly against the Applicant. He initially
agreed to a continuance of the trial from August 2002 until November 4, 2002, so that
his ADC could prepare an adequate defense. Although Applicant objected to a
continuance of the trial date from November 4, 2002 to January 6, 2003, the same
reasons supported both the first and second continuances, and the trial court so found.
The trial court’s factual findings are presumed correct under 28 U.S.C. § 2254(e)(1) and
are supported by the state court record. Applicant has not rebutted those findings with
any clear and convincing evidence to the contrary.

44

State Court R. 6/25/02 Hrg. Tr.

45

State Court R. 9/5/02 Hrg. Tr. at 4-7.

46

Id. at 4.

47

Id. at 15.

48

Id. at 16.

12

Under the third Barker factor, Applicant asserted his speedy trial right at the
September 5, 2002 hearing (and in a motion to dismiss filed September 3, 2002)49 after
he agreed in June 2002 to a continuance of the trial date from August 2002 to
November 4, 2002, so that his counsel could prepare effectively for trial. Applicant’s
later objection to counsel’s second request for a short continuance on the same
grounds contradicts his earlier approval. As such, I find that the third factor weighs
slightly against the Applicant.50
Finally, there is no evidence to indicate that Applicant was prejudiced by the
delay. Prejudice is presumed where there was extreme delay, but where, as here, the
delay is not extreme, the defendant must make a particularized showing of prejudice.51
To determine prejudice, I consider the interests the speedy trial right was designed to
protect: “(1) prevention of oppressive pretrial incarceration, (2) minimization of the
accused's anxiety and concern, and (3) minimization of the possibility that a delay will
hinder the defense.”52 The last of these interests is the most critical “because the
inability of a defendant adequately to prepare his case skews the fairness of the entire
system.”53 The petitioner bears the burden of showing prejudice and the mere

49

State Court R. File, at 147-48 of 558.

50

See Tranakos, 911 F.2d at 1429 (“We are unimpressed by a defendant who moves for dismissal
on speedy trial grounds when his other conduct indicates a contrary desire.”); see also United States v.
Dirden, 38 F.3d 1131, 1138 (10th Cir.1994) (finding that the third factor weighed against a defendant who
moved for a continuance and acquiesced when the trial date was vacated twice).
51

See Toombs, 574 at 1275.

52

Id.

53

Barker, 407 U.S. at 532.

13

“possibility of prejudice is not sufficient to support [the] position that . . . speedy trial
rights [are] violated.”54
Applicant asserted in his opening brief on direct appeal to the Colorado Court of
Appeals that the delay “affected the children’s testimony,” the credibility of which was of
critical importance.55 He further argued that the delay deprived him of an important
witness, Christine Davidson, who became unavailable, but who would have provided
exculpatory testimony.56
The defendant may be prejudiced at trial if defense witnesses are unable to recall
events accurately because of a delay in the trial date.57 However, “[t]he failure of a
prosecution witness’s memory does not support a claim that the Sixth Amendment was
violated.”58 The child witnesses testified for the prosecution. Thus, any impairment to
their memory as a result of the delayed trial date did not prejudice the defense.
To demonstrate that the unavailability of a witness impaired the defense, a
habeas petitioner must “state[ ] with particularity what exculpatory testimony would have
been offered.”59 Applicant has never articulated the substance of Ms. Davidson’s
purported exculpatory testimony to the state or federal courts. In addition, Applicant has
failed to allege facts to show that the witness was unavailable because of the delayed

54

United States v. Loud Hawk, 474 U.S. 302, 315 (1986).

55

Doc. No. 7-1, at 12.

56

Id.

57

See Barker, 407 U.S. at 532.

58

Tranakos, 911 F.2d at 1429.

59

Id. (internal quotations, citations, and alterations omitted).

14

trial date.60
Moreover, Applicant’s allegations that the delay enabled the prosecution
additional time to gather evidence against him are without merit. “[T]he fact that the
government strengthened its case during the delay [does not] count[ ] as a form of
prejudice.”61 And, finally, the state court record reflects that in November 2002,
Applicant requested the appointment of conflict-free counsel based upon irreconcilable
differences between Applicant and ADC over defense strategy and communication
issues.62 Applicant’s motion required the trial court to appoint a second ADC, which
necessitated a further continuance of the trial date beyond January 2003.63 As the trial
court recognized, Applicant’s continued dissatisfaction with appointed counsel was at
least partially responsible for the multiple delays in his trial date. 64 Accordingly, I find
that the fourth Barker factor weighs against Applicant.65
On balance, I find and conclude that Applicant has failed to demonstrate a
violation of his Sixth Amendment right to speedy trial. Claim one therefore will be
dismissed.
B.

Claim Three

In his third claim, Applicant asserts that the trial court’s admission of a child
60

Jackson, 390 F.3d at 1265 (citation omitted).

61

United States v. Seltzer, 595 F.3d 1170, 1180 n.4 (10th Cir. 2010).

62

State Court R. 11/27/02 Hr. Tr. at 12-14.

63

Id. at 33-34; 1/22/03 Hrg. Tr., at 3-4.

64

Id., 11/27/02 Hrg. Tr. at 8-9; 12; 18-19, 25-27.

65

See Jackson, 390 F.3d at 1267 (“while prejudice is not essential to a violation,” this court is
“reluctan[t] to find a speedy trial deprivation where there is no prejudice.”

15

witness’s videotaped statements to the police at trial violated his Sixth Amendment
confrontation rights.66
The Confrontation Clause of the Sixth Amendment provides: "In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.”67 In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held
that a trial court’s admission of testimonial hearsay against a defendant at trial violates
the defendant’s confrontation rights unless the witness is unavailable and there was a
prior opportunity for cross-examination. A witness’s statements to the police 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.”68
A petitioner is not entitled to federal habeas relief based on a constitutional
violation at his trial unless the constitutional error had a “substantial and injurious effect
or influence” on the jury’s verdict.69 Put differently, the constitutional violation must
“have resulted in ‘actual prejudice.’”70
The Colorado Court of Appeals recognized the applicability of Crawford to
Applicant’s claim,71 but on plain error review, concluded that Applicant had failed to
66

Doc. No. 1, at 6.

67

U.S. Const. amend. VI.

68

Davis v. Washington, 547 U.S. 813, 822 (2006). Davis was decided on June 19, 2006, while
Applicant’s direct appeal was pending.
69

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted).

70

Id.

71

Doc. No. 7-6, at 13.

16

show that he was prejudiced at trial as a result of the asserted constitutional error. The
state appellate court reasoned:
[W]e find that the jury had substantial other evidence to find
defendant guilty of reckless manslaughter, apart from BJ’s videotaped
statements. The prosecution presented two other eyewitnesses to the
shooting who testified that defendant brought a gun into the apartment, a
struggle ensued, and the gun went off, killing the victim. This testimony
provided the jury with ample evidence to find defendant guilty of reckless
manslaughter. Thus, the error did not cast serious doubt on the reliability
of the judgment of conviction.
Accordingly, we conclude that admission of BJ’s videotaped police
interview did not constitute plain error.72
The state appellate court’s factual determinations are presumed correct and are
supported by the state court record.73 Applicant does not point to any clear and
convincing evidence to the contrary. Because there was significant evidence of
Applicant’s guilt apart from the hearsay statements of the child witness, Applicant has
not shown that the alleged Sixth Amendment violation had a “substantial and injurious
effect or influence” on the jury’s verdict.74 I find that the Colorado Court of Appeals’
determination that Applicant was not prejudiced by the admission of the hearsay
statements was not contrary to, or an unreasonable application of federal law. Applicant
thus cannot prevail on his third claim for relief.
C.

Claim Five

For his fifth claim, Applicant asserts that the arrest warrant affidavit failed to
establish probable cause for his arrest, and, therefore, the trial court should have
72

Id. at 14.

73

See State Court R. 5/1/03 Trial Tr. at 240, 251-53; 5/2/03 Trial Tr. at 535-36.

74

Brecht, 507 U.S. at 637.

17

granted his motion to suppress his statements to the arresting officers.75
The Fourth Amendment protects against unreasonable search and seizure and is
generally enforced through the exclusionary rule.76 The Supreme Court has limited
federal habeas review for alleged Fourth Amendment violations based on the Court’s
determination that any additional contribution gained from consideration of
search-and-seizure claims of state prisoners on collateral review is small in relation to
the associated costs.77 The Court held in Stone that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.”78
The Supreme Court has not defined precisely the phrase “opportunity for full and
fair litigation.”79 The Court of Appeals for the Tenth Circuit has determined that the
phrase:
includes, but is not limited to, the procedural opportunity to raise or
otherwise present a Fourth Amendment claim. It also includes the full and
fair evidentiary hearing contemplated by Townsend [v. Sain, 372 U.S. 293
(1963)]. Furthermore, it contemplates recognition and at least colorable
application of the correct Fourth Amendment constitutional standards.80
“Thus, a federal court is not precluded from considering Fourth Amendment claims in
75

Doc. No. 1, at 6.

76

See, e.g., Illinois v. Gates, 462 U.S. 213, 254 (1983); Stone v. Powell, 428 U.S. 465, 482-87

77

Stone, 428 U.S. at 493-94.

78

Id. at 494.

79

See Gamble v. State of Oklahoma, 583 F.2d 1161, 1164 (10th Cir. 1978).

80

Id. at 1165.

(1976).

18

habeas corpus proceedings where the state court willfully refuses to apply the correct
and controlling constitutional standards.”81
In this case, Applicant filed a motion to suppress his statements to the arresting
police officers and the state trial court held a hearing.82 The trial court ruled as follows:
I’ve reviewed the probable cause affidavit. Under the case of Franks v.
Delaware, 438 U.S.154 [1978],83 [Applicant] has the burden of coming
forward with a substantial preliminary showing that there was a false
statement knowingly or intentionally made or a statement that was made
with a reckless disregard for the truth in the affidavit. There has been no
such showing. The only argument is that there was insufficient
information based on the handwritten portion of the affidavit by Detective
Graham saying that he learned from Detective Meyer that Ms. Jackson
mentioned Mr. Robinson as a second suspect. But also contained within
the affidavit is the fact that [JJ] identified [Applicant] in the photo lineup.
So I’m going to deny [Applicant’s] motion to suppress the arrest based on
the probable cause affidavit. Probable cause was present.84
On direct appeal of Applicant’s conviction, the Colorado Court of Appeals
affirmed the trial court’s ruling.85 The state appellate court reviewed the averments in
the affidavit and discerned “a substantial basis to support issuance of an arrest

81

Id.

82

State Court R. File, at 67 -79 of 558; State Court R. 1/30/03 Hr. Tr. at 51-54.

83

In Franks, the Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false statement is necessary to the
finding of probable cause, the Fourth Amendment requires that a hearing be held at the
defendant's request.
438 U.S. at 155-56.
84

State Court R. 1/30/03 Hr. Tr. at 51-54.

85

Doc. No. 7-6, at 6-7.

19

warrant.”86
I find that the state trial and appellate court proceedings sufficed to provide
Applicant with an opportunity for full and fair litigation of his claim.87 The state courts
relied on United States Supreme Court Fourth Amendment precedent in resolving
Petitioner’s claim, both directly and through state case law applying constitutional
standards.88
Applicant does not assert, nor is it apparent from the state court record, that the
state courts failed to recognize or wilfully ignored controlling legal standards. Instead,
Applicant merely disagrees with the result of the state court proceeding. I therefore find
and conclude that Applicant is barred from federal habeas review of his Fourth
Amendment claim, and claim five must therefore be dismissed.
D.

Claim Seven

In claim seven, Applicant contends that the trial court imposed a sentence in the
aggravated range, based on facts not found by the jury beyond a reasonable doubt, in
violation of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington,
542 U.S. 296 (2004).89

86

Id.

87

See Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir.1999) (holding that petitioner was not
entitled to habeas review of Fourth Amendment claim where petitioner’s trial counsel informed the trial
court of the factual basis for a Fourth Amendment claim, appellate counsel presented the issue to the
state appellate court on direct appeal, and the state courts “thoughtfully considered the facts underlying
petitioner's Fourth Amendment claim” but rejected it on the merits by applying appropriate Supreme Court
precedents).
88

See Banks v. People, 696 P.2d 293, 296 (Colo. 1985) (citing Supreme Court Fourth Amendment
case law); People v. Abeyta, 795 P.2d 1324, 1327 (Colo. 1990) (same).
89

Doc. No. 1, at 7; Doc. No. 7-1, at 4.

20

Under Apprendi, any fact other than a prior conviction that increases the penalty
for a crime beyond the prescribed statutory maximum must be submitted to a jury and
proven beyond a reasonable doubt.90 Apprendi applies when the sentence is enhanced
beyond the prescribed “statutory maximum,” which the Supreme Court has defined as
the maximum sentence a judge may impose based on the verdict alone, “without any
additional findings.”91 Prior convictions are exempt from the rule of Apprendi.92 An
offender’s status as a parolee is a fact linked to the fact of a prior conviction and is
therefore included within the prior conviction exception to the Apprendi rule.93
Under Colorado law, the presumptive sentence range for the crime of reckless
manslaughter, a class four felony, is two to six years.94 Pursuant to 18-1.3-401(6),
C.R.S., the court may impose a sentence that is not greater than twice the maximum
authorized by the presumptive range if the Court concludes that aggravating
circumstances are present, based on evidence in the record and in the presentence
report.
The trial court sentenced Applicant to twelve years of imprisonment based on

90

Apprendi, 530 U.S. at 490.

91

Blakely, 542 U.S. at 304.

92

See Apprendi, 530 U.S. at 476, 490; see also Hunter v. Werholtz, 505 F.3d 1080, 1082 (10th
Cir. 2007) (holding that Apprendi does not require a state to prove beyond a reasonable doubt facts
related to prior convictions).
93

See United States v. Corchado, 427 F.3d 815, 820 (10th Cir. 2005) (“[T]he ‘prior conviction’
exception extends to ‘subsidiary findings' such as whether a defendant was under court supervision when
he or she committed a subsequent crime.”).
94

See § 18-3-104, C.R.S.; § 18-1.3.401(1)(a)(V)(A), C.R.S.

21

Applicant’s prior felony and misdemeanor convictions, and his parole status.95 The trial
court also considered the following factors in sentencing: Applicant brought a gun to a
discussion about missing speakers; he did not leave the scene once an argument
ensued between him and the victim, but instead chose to follow the victim to his
apartment and broke down the door into the room where children were present; a child
was underneath Mr. Jackson when Applicant fired the gun that killed the victim; and, the
impact to the victim’s family.96
The Colorado Court of Appeals rejected Applicant’s claim on direct appeal on the
following grounds:
Section § 18-1.3-401(6), which permits the sentencing court to
impose a sentence outside the presumptive range upon finding the
existence of extraordinary aggravating or mitigating circumstances, is
constitutionally applied where the sentencing court relies on Blakelycompliant or Blakely-exempt facts to support a sentence above the
presumptive range. DeHerrera v. People, 122 P.3d 992 (Colo. 2005).
Sentencing within this aggravated range is constitutionally and statutorily
proper even if the judge also considered additional factors that were not
Blakely-compliant or Blakely-exempt. Lopez v. People, 113 P.3d 713
(Colo. 2005).
Prior convictions facts are considered Blakely-exempt. Lopez v.
People, supra. The prosecution must prove the existence of prior
conviction facts only by a preponderance of the evidence because the
sentence enhancement provision does not have a statutory burden of
proof. See People v. Whitley, 998 P.2d 31 (Colo. App. 1999).
At the sentencing hearing, the prosecution presented certified
copies of records from the California Department of Corrections detailing
prior convictions of a person with defendant’s name and including a
picture of the person. Defendant made a foundational argument below
and argued that the documents were not sufficient to prove that he was

95

State Court R. 07/08/02 Sentencing Hrg. at 30, 44.

96

Id. at 44.

22

the person described in those documents.
On appeal, [Applicant] argues that there were no Blakely-compliant
or Blakely-exempt aggravating factors to justify the court’s imposition of an
aggravated sentence. However, [Applicant] makes no specific arguments
as to how the prosecution failed to meet its burden, and instead, makes
only a conclusory statement that the prosecution did not prove
[Applicant’s] past convictions. We need not consider arguments where
counsel has failed to inform the court of the specific errors relied upon and
the grounds, facts, and authorities therefore. See People v. Diefenderfer,
supra.97
The state appellate court went on to observe that the documentary evidence of
Applicant’s prior convictions was admissible under the Colorado Rules of Evidence and
that Applicant did not object when the trial court admitted the documents.98 The
Colorado Court of Appeals therefore determined that the trial court did not err by
sentencing defendant in the aggravated range.99
The state appellate court’s factual determination that Applicant had prior felony
convictions is presumed correct in this federal habeas proceeding, and Applicant has
not pointed to any clear and convincing evidence to demonstrate otherwise.
Furthermore, the state appellate court’s reliance on Lopez to support Applicant’s
aggravated sentence was not an unreasonable application of federal law. In Lopez, the
Colorado Supreme Court held that a trial court's reliance on a prior conviction is
sufficient to support an aggravated sentence “even if the trial court also relied on other
constitutionally impermissible factors.”100 The Lopez decision is consistent with the
97

Doc. No. 7-6, at 21-23.

98

Id. at 23.

99

Id.

100

Lopez, 113 P.3d at 731.

23

rules of Apprendi and Blakely.101 Applicant does not cite to any clearly established
federal law that prohibits the consideration of additional factors that are not either
Blakely-exempt or Blakely-compliant once a defendant is exposed to an aggravated
sentence based on his prior convictions.102 Accordingly, I find that the state appellate
court’s resolution of Applicant’s claim was neither contrary to nor an unreasonable
application of federal law. Claim seven thus will be dismissed.
E.

Claims Nine, Ten, Eleven and Twelve

In claims nine, ten, and eleven, Applicant asserts that trial counsel was
constitutionally ineffective in failing to: investigate and present the alibi defense (claim
nine); file a motion to suppress prejudicial evidence (claim ten); and, in failing to convey
a possible plea offer to Applicant (claim eleven).103 In claim twelve, Applicant contends
that trial counsel labored under a conflict of interest, in violation of his Sixth Amendment
rights.
To prevail on his claims 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.”104 Judicial

101

See United States v. Romero, No. 10-1362, 432 F. App’x 790, 793-94 (10th Cir. Aug. 15, 2011)
(“[W]hen a judge exercises his or her discretion to consider an aggravated sentence based on the fact of a
prior conviction, ‘[t]he sentencing judge then has full discretion to sentence within this widened range
according to traditional sentencing considerations,’” quoting Lopez, 113 P.3d at 716).
102

See Horrell v. Zavaras, No. 10-cv-02834-MSK, 2011 WL 6216962, at *10 (D. Colo. Dec. 14,
2011) (observing that petitioner failed to point to any United States Supreme Court decision that
contravened Lopez).
103

Doc. No. 12, at 2-3.

104

Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

24

scrutiny of counsel’s performance is highly deferential.105 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.”106 Under the AEDPA standard of review, “the question is not whether counsel's
actions were reasonable. The question is whether there is any reasonable argument
that counsel satisfied Strickland's deferential standard.”107
Prejudice exists when there is a reasonable probability that, but for counsel’s
defective representation, the result of the proceeding would have been different.108 The
likelihood of a different result must be substantial, not just conceivable.109 The court
need not address both prongs of the Strickland inquiry if Applicant’s claim fails on
one.110
1. failure to investigate and present the alibi defense
Applicant asserts in his ninth claim that trial counsel failed to investigate and
preserve an alibi defense.111
“[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case,

105

Id. at 689.

106

Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted).

107

Harrington, 131 S.Ct. at 788.

108

Strickland, 466 U.S. at 693.

109

Id.

110

Id. at 697.

111

Doc. No. 12, at 2.

25

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 judgment.”112
In September 2002, Applicant’s then-appointed ADC counsel requested a
continuance of the trial date, based in part, on counsel’s need to further develop, or rule
out, a potential alibi defense which counsel was then investigating.113 Counsel advised
the court that recent evidence indicated that the defense may not be viable.114 The trial
court subsequently held a conflict hearing on November 27, 2002 because Applicant
asserted that he was experiencing irreconcilable differences with his counsel over the
alibi defense.115 Counsel told that trial court that he had determined, based on recent
evidence, that it was not in Applicant’s best interest to assert an alibi defense, and,
therefore, counsel was investigating other possible defense theories.116 However,
Applicant remained adamant about defending on the basis of alibi.117 The trial court
allowed lead counsel to withdraw on the basis of an ethical conflict over the defense
strategy, and new ADC was appointed to represent Applicant.118
The state appellate court rejected Applicant’s claim in the state post-conviction

112

Strickland, 466 U.S. at 691.

113

State Court R. 09/05/02 Hrg. Tr. at 3, 5-6.

114

Id. at 5-6. Counsel told the court: “[O]bviously one would prefer to asset a defendant’s
preferred alibi or preferred defense. However, one cannot blindly do that when other evidence is coming
in which screams that you go with this defense at your extreme peril. Because with an alibi defense,
you’re essentially giving up all other defenses.” Id. at 8-9.
115

See generally State Court R. 11/27/02 Hrg. Tr.

116

Id. at 13-16.

117

Id.

118

Id. at 32.

26

proceeding because he failed to include any facts such as the identity of the alibi
witness or how proof of the alleged alibi would have exonerated him.”119 The Colorado
Court of Appeals further found that Applicant failed to “allege[ ] any facts concerning
what an investigation would have shown and how the failure to investigate resulted in
prejudice.”120
The state appellate court’s determination that Applicant did not provide any
factual support for his claim that counsel failed to investigate an alibi defense is
supported by the state court record, which shows that ADC did investigate the defense
between June and November 2002, but ruled it out based on contradictory government
evidence. New ADC appointed for Applicant after the November 27, 2002 hearing
presumably reviewed all of the same information relied on by former counsel in deciding
not to pursue the defense. Applicant has not overcome the presumption that counsel’s
decision not to pursue an alibi defense was sound trial strategy. And, Applicant has
failed to explain how the alleged failure to investigate prejudiced him at trial, nor has he
set forth specific facts or evidence to show that presentation of the alibi defense at trial
would have resulted in an acquittal. Conclusory allegations of prejudice are inadequate
to support an ineffective assistance of counsel claim.121 Accordingly, I find that the
Colorado Court of Appeals’ determination of Applicant’s claim was consistent with the

119

People v. Robinson, No. 07CA2360 (Colo. App. Aug. 19, 2010) (unpublished); Doc. No. 7-12,

120

Id. at 4.

at 3.

121

See Cummings v. Sirmons, 506 F.3d 1211, 1233–34 (10th Cir. 2007) (conclusory allegations
are not sufficient to satisfy Strickland); Strickland, 466 U.S. at 687-88 (petitioner must make a showing of
deficient performance and prejudice).

27

evidence presented in the state court proceeding and was a reasonable application of
Strickland. Applicant’s ninth claim will be dismissed.
2. Failure to file a motion to suppress prejudicial evidence
For his tenth claim, Applicant asserts that trial counsel was ineffective in failing to
file a motion to suppress prejudicial evidence.122
Before trial, Applicant’s counsel filed motions to suppress Applicant’s statements
to the police, another witness’s statements, and any out-of-court or in-court identification
of Applicant.123
The Colorado Court of Appeals rejected Applicant’s claim in the state postconviction proceeding on the basis that the claim was “conclusory and lacks any
supporting facts because [Applicant] does not identify what evidence should have been
suppressed.”124
I find that the state appellate court’s determination of Applicant’s claim comported
with Strickland. Applicant has consistently failed to specify what prejudicial evidence
counsel should have moved to suppress. Because Applicant has not articulated the
basis for the allegations of ineffective assistance in his tenth claim, the claim will be
dismissed.125

122

Doc. No. 12, at 2.

123

State Court R. File, at 67-69, 197-198, 213-14, and 216-17 of 558.

124

Doc. No. 7-12, at 3.

125

See Cummings, 506 F.3d at 1233-34; Strickland, 466 U.S. at 687-88.

28

3. Failure to convey a plea offer
For his eleventh claim, Applicant asserts that counsel was ineffective in failing to
inform him about “a possible plea offer” from the government.126 He does not identify
the terms of the plea offer or allege specific facts to show that a plea offer was in fact
made.
Counsel’s failure to convey a favorable plea agreement to the defendant can
constitute ineffective assistance where the defendant establishes that but for counsel's
deficient performance he would have accepted the plea offer and pleaded guilty.127
The state appellate court resolved this claim against Applicant as follows:
Although counsel’s failure to convey an actual plea offer constitutes
deficient performance, . . ., to obtain relief for ineffective assistance a
defendant must still allege facts that if proven show prejudice. Here,
because [Applicant] motion does not specify the terms of the alleged plea
offer, as compared to his conviction and sentence, he has not alleged
facts sufficient to show prejudice. Nor has he alleged that if
communicated, the purported offer would have been accepted. [State
case law citation omitted].128
The Court finds that the state appellate court’s disposition of Applicant’s claim
was a reasonable application of federal law. Applicant has not alleged any facts to
show that a plea offer was made and that if counsel had informed him about the offer he

126

Doc. No. 12, at 2-3.

127

See Williams v. Jones, 571 F.3d 1086, 1090 nn. 3 & 4 (10th Cir. 2009); see also United States
v. Morris, No. 03–3360, 2004 WL 1598792, at *2 (10th Cir. July 19, 2004) (“[I]n the ordinary case criminal
defense attorneys have a duty to inform their clients of plea agreements proffered by the prosecution,
. . .failure to do so constitutes ineffective assistance of counsel under the sixth and fourteenth
amendments.”) (quoting United States v. Golden, 102 F.3d 936, 943 (7th Cir.1996)); Hill v. Lockhart, 474
U.S. 52, 59 (1985) (the prejudice component “focuses on whether counsel's constitutionally ineffective
performance affected the outcome of the plea process”).
128

Doc. No. 7-12, at 3-4.

29

would have pleaded guilty instead of going to trial. Further, he fails to demonstrate that
the plea offer would have resulted in a lesser sentence than the one imposed by the
jury.129 Applicant therefore cannot prevail on his eleventh claim.
4. trial counsel labored under a conflict of interest
For his twelfth and final claim, Applicant asserts that counsel was ineffective
because counsel labored under a conflict-of-interest.130
The Colorado Court of Appeals rejected this claim in the state post-conviction
proceeding because Applicant failed to provide any details about which of his counsel
had a conflict of interest, and he failed to articulate the basis of the conflict.131
The state appellate court’s resolution of this claim was not inconsistent with
clearly established federal law.132 I find that Applicant’s conclusory assertion in claim
twelve fails to satisfy the two-part Strickland inquiry and must be dismissed.
V.

Order
Accordingly, it is
ORDERED that the Application For A Writ Of Habeas Corpus Pursuant to 28

U.S.C. § 2254 (Doc. No. 1; May 10, 2011) is DENIED WITH PREJUDICE. It is

129

See United States v. McGehee, No. 08-7085, 307 F. App’x 145, 148 (10th Cir. Jan. 9, 2009)
(unpublished) (to establish prejudice in plea proceedings, petitioner must “allege that he would have taken
a plea offer [and] that such an offer would have reduced the sentence he received as a result of the jury
conviction”).
130

Doc. No. 12, at 3.

131

Doc. No. 7-12, at 6.

132

See Cummings, 506 F.3d at 1233–34; Strickland, 466 U.S. at 687-88.

30

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.133
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Plaintiff files a notice of appeal he must also pay the full $455 appellate filing
fee or file a motion to proceed in forma pauperis in the United States Court of Appeals
for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DENIED.
Dated: April 17, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

133

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).

31