Peterson v. Timme et al

Filing 35

ORDER Denying 1 Application for Writ of Habeas Corpus filed by Bruce Edward Peterson. IT IS ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 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 pursuant to 28 U.S.C. § 2253(c). It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U. S. 438 (1962). If Applicant 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. It is FURTHER ORDERED that the Motion for Rule 56 A, 32 is denied as moot. Civil Case Terminated. By Judge R. Brooke Jackson on 10/10/12. (alvsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-03003-RBJ
BRUCE EDWARD PETERSON,
Applicant,
v.
RAE TIMME, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
______________________________________________________________________________
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
______________________________________________________________________________
R. Brooke Jackson, District Judge.

The matter before the Court is an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 1. The Court has determined it can resolve the
Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254
Cases 8(a).
I. BACKGROUND
Applicant was convicted by a trial jury of enticement of a child, attempted sexual assault
on a child, and indecent exposure. Pre-Answer Resp., ECF No. 15-2 (Appx. B) at 8-9. On direct
appeal of Applicant’s conviction, the Colorado Court of Appeals (CCA) summarized the
underlying facts and proceedings as follows:
A twelve year-old boy alleged that, while he was waiting for a bus,
defendant exposed himself, grabbed the boy by the thigh, and asked him to come
to defendant’s house.
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Soon after the incident, the boy phoned the police and his stepmother
about the incident and described defendant in detail, including defendant’s
physical appearance, clothes, and demeanor. The police apprehended defendant
based upon the boy’s description, and an officer drove the boy to the location
where another officer was holding defendant. Upon arrival, the boy said, “that’s
him,” and that he was “a hundred percent certain” that defendant was the man
who assaulted him.
Defendant sought to suppress the victim’s statements to police and his
stepmother, arguing that the statements were hearsay and unreliable. The trial
court overruled defendant’s objections and allowed the statements pursuant to
section 13-25-129, C.R.S. 2009. Defendant further sought to suppress the
identification as unduly suggestive, which the trial court denied.
After he was convicted, defendant moved for the appointment of new
counsel and postconviction relief based upon ineffective assistance of counsel
pursuant to Crim. P. 35(c). Defendant alleged that his attorney engaged in
unethical behavior and failed to call witnesses and present evidence that would
have exonerated him. The trial court denied defendant’s motions without an
evidentiary hearing.
People v. Peterson, No. 08CA2103, 1-2 (Colo. App. Aug. 26, 2010) (unpublished).
Applicant was sentenced on August 22, 2008, to two indeterminate terms, one term is ten
years to life, the other term is three years to life running consecutive to the ten year to life
sentence. Applicant also was sentenced to a one-year jail term for indecent exposure to run
concurrently with the two indeterminate terms. Pre-Answer Resp., ECF No. 15-2, App. B, at 7.
Applicant filed both a direct appeal and a Colo. R. Crim. P. 35(c) postconviction motion. In the
same order, entered on August 26, 2010, the CCA affirmed the conviction in the direct appeal
and denied the Rule 35(c) motion. Id., ECF No. 15-4, App. D. Applicant petitioned for writ of
certiorari; but the Colorado Supreme Court (CSC) denied the petition on November 15, 2010.
Id., ECF No. 15-6, Appx. F. Applicant’s conviction and sentence, therefore, were final on
February 13, 2011, when the time for seeking review in the United States Supreme Court

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expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182
F.3d 1153, 1155 (10th Cir. 1999).
II. HABEAS CLAIMS
Applicant, acting pro se, filed this Application on November 17, 2011. He asserted three
claims in the Application, including: (1) judicial misconduct by the trial court; (2) an
unreasonable verdict not supported by the evidence; and (3) ineffective assistance of counsel.
On January 4, 2012, Magistrate Judge Boyd N. Boland entered an order directing
Respondents to file a Pre-Answer Response and address the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under
28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those
defenses. Respondents filed a Pre-Answer Response on January 24, 2012. Applicant did not file
a Reply. Respondents conceded in the Pre-Answer Response that the Application is timely, but
they argued that Applicant did not exhaust his claims
This Court reviewed the Application and Pre-Answer Response and determined that
Claims One and Two are procedurally barred. As for Claim Three, the Court refrained from
determining if it is exhausted because neither Respondents nor Applicant provided a copy of the
Colo. R. Crim. P. 35(c) postconviction motion, which included Applicant’s ineffective assistance
of counsel claims. Pursuant to the Court’s order dismissing Claims One and Two and instructing
Respondents to file an answer with respect to Claim Three, Respondents filed an Answer on
May 4, 2012. Applicant complained that he did not receive a copy of the Answer, which
subsequent to his complaint was resent to him by Respondents on May 30, 2012, and Applicant
was given until July 5, 2012, to respond to the Answer. Although Applicant was given sufficient
time to reply to Respondents’ Answer, rather than replying, he elected to file two motions for
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summary judgment that do not address Respondents’ Answer or the issues raised in his
Application. Nonetheless, the Court now has a copy of Applicant’s Rule 35(c) postconviction
motion. A review of the motion indicates that Applicant asserted the following ineffective
assistance of counsel claims in his postconviction motion:
1) Unethical misconduct;
2) Lack of due diligence, perfunctory defense;
3) Failure to prepare, incompetent, and ignorant of the law;
4) Defense was formulated on day of trial;
5) Failure to investigate alibi;
6) Failure to have Mr. Rivera testify and call witnesses;
7) Failure to consult with Applicant about strategy and share discovery papers;
8) Failure to object to slanderous closing remarks by district attorney;
9) Conflict of interest; and
10) No objection to possible double jeopardy violation
See Resp., ECF No. 20-1 at 7-11.
In his opening brief on appeal he asserted as follows:
“In a Crim. P. 35(c) proceeding, the legality of the judgment and the
regularity of the proceedings leading up to the judgment are presumed. The
burden is on the movant to establish by a preponderance of the evidence the
allegations of the motion for postconviction relief.” People v. Hendricks, 972
P.2d 1041 (Colo. App. 1998). Postconviction relief may be sought pursuant to
C.R.Cr. P. 35(c). There is a preference for trial courts to address the merits of a
postconviction motion. White v. District Court, 766 P.2d 632, 635 (Colo. 1988).
Nevertheless, “a court need not entertain a defendant’s motion for postconviction
relief when that motion is based upon the same or similar allegations that have
been fully litigated in an earlier appeal or Crim. P. 35(c) motion.” People v.
Russell, 36 P.3d 92 (Colo. App. 2001) citing C.R.Cr.P. 35(c)(3).

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A motion for postconviction relief must allege ultimate facts with
particularity. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied
382 U.S. 1014, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966). Thus, “a defendant need
not set forth the evidentiary support for his allegations in his Crim P. 35 motion;
instead, a defendant need only assert facts, that if true would provide a basis for
relief.” People v. Brack, 796 P.2d 49, 50 (Colo. App. 1990). In fact, even though
defendant’s factual allegations seem unbelievable or improbable is not the test set
forth in C.R. Cr. P. 35(c) in order to determine whether a hearing should be
granted; instead, the defendant must be given an opportunity to support his
allegations with evidence presented at a hearing. Roberts v. People, 158 Colo.
76, 404 P.2d 848 (1965) (Emphasis supplied).
Here, Defendant filed a pro se motion for postconviction relief on August
20, 2008. Vol. One, p. 106-118. In the detailed motion, Mr. Peterson alleged
several grounds which required the vacation of his judgment of convictions.
Specifically, Mr. Peterson stated that his trial lawyer had rendered ineffective
assistance of counsel in giving Defendant a “perfunctory” defense, and further
labored under a conflict of interest. Id.. P. 112, p.114-118. Additionally, counsel
had failed to conduct a sufficient pretrial investigation which would have resulted
in a reasonable probability that the outcome of the proceedings would have been
different. Id., p. 113-118; see also Davis People, 871 P.2d 769 (Colo. 1994)
citing Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
Initially, it should be noted, that Mr. Peterson’s pro se pleading was
detailed in its allegations and supporting case law. However, the facts asserted,
alone, were sufficient to warrant relief. People v. Brack, supra; Roberts v.
People, supra.
It was alleged that counsel did not spend any time with the Defendant in
order to prepare for trial. Id., p. 115. This problem was demonstrated in
counsel’s failure to communicate and visit with Mr. Peterson to formulate a
defense. Mr. Peterson alleged that his counsel visited him three times within a
seven month period. Id., p.117. Mr. Peterson’s repeated attempts to contact his
attorney via telephone calls were unsuccessful. Id. Defense counsel did not call
any witnesses Mr. Peterson had requested be subpoenaed for trial. Id. It was
alleged that the Defendant’s defense was formulated on the day of trial and
counsel failed to call witnesses or obtain surveillance tapes which would have
resulted in a different outcome had that evidence been presented to the jury. Id.
In summary, Mr. Peterson believed his “case is riddled with shoddy investigation.
Evidence was ignored.” Id., p. 118.
Notwithstanding, Mr. Peterson alleged a conflict of interest existed
between him and his court-appointed lawyer. Vol. One, p. 112. Defendant tried
to address the court on the first day of trial. However, the trial court brusquely
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dismissed the attempts to address the issue. See Compact disc, June 16, 2008, p.
4-17.
Here, “to prevail in a proceeding for postconviction relief based on a claim of
ineffective assistance of counsel, the defendant must demonstrate not only that
counsel’s performance was deficient, but also that it prejudiced the defense.”
People v. McDowell, ___ P.3d ___, No. 07CA1358 (March 5, 2009). Defendant
alleges that his trial attorney failed to conduct a sufficient pre-trial investigation,
and thus, was ill-prepared for trial. Had counsel been an effective and diligent
advocate, witnesses would have been subpoenaed and surveillance tapes obtained
to demonstrate that Defendant could not have possibly been the suspect that
accosted L.B. Davis v. People, supra.
Therefore, the trial court erred in summarily denying the motion for
postconviction relief. White v. District Court, supra. Mr. Peterson established his
allegations by a preponderance of the evidence and thus, the judgment of
convictions cannot stand. People v. Hendricks, supra.
See Resp., Doc. No. 15-7 at 17-21.
A review of the Rule 35(c) postconviction motion and the opening brief on appeal
indicates that appellate counsel identified and raised Applicant’s ineffective assistance claims as
follows:
1) Perfunctory Defense;
2) Conflict of Interest;
3) Lack of Pretrial Investigation;
4) Failure to Prepare for Trial;
5) Failure to Subpoena Witnesses and Surveillance Tapes;
6) Failure to Visit Applicant or Communicate;
7) Failure to Call Witnesses that Applicant Requested;
8) Defense Formulated on Day of Trial; and
9) Ignored Evidence
The Court, therefore, will address the nine claims as set forth by appellate counsel.
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III. LEGAL STANDARDS
A. Pro Se Standard of Review
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.”
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). However, a pro se litigant's “conclusory
allegations without supporting factual averments are insufficient to state a claim on which relief
can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 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. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant’s pro se status does not
entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958 (10th
Cir. 2002).
B. 28 U.S.C. § 2254
Section 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).

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The Court reviews claims of legal error and mixed questions of law and fact pursuant to
28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The
threshold question pursuant to § 2254(d)(1) is whether Applicant seeks to apply a rule of law that
was clearly established by the Supreme Court at the time his conviction became final. See
Williams v. Taylor, 529 U.S. 362, 390 (2000). The “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the prisoner’s claim on the merits.” Cullen
v. Pinholster, ---- U.S. ----, 131 S. Ct. 1388, 1398 (2011). “Finality occurs when direct state
appeals have been exhausted and a petition for writ of certiorari from this Court has become time
barred or has been disposed of.” Greene v. Fisher, ---- U. S. ----, 132 S.Ct. 38, 44 (2011) (citing
Griffith v. Kentucky, 479 U.S. 314, 321, n. 6 (1987).
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.” Williams, 529
U.S. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where the
facts are at least closely-related or similar to the case sub judice. Although the
legal rule at issue need not have had its genesis in the closely-related or similar
factual context, the Supreme Court must have expressly extended the legal rule to
that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).
If there is no clearly established federal law, that is the end of the Court’s inquiry
pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is
implicated, the Court must determine whether the state court’s decision was contrary to or an
unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S.
at 404-05.
A state-court decision is contrary to clearly established federal law if: (a) “the
state court applies a rule that contradicts the governing law set forth in Supreme
8

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. Carter [v.
Ward], 347 F3d. [860,] 864 [10th Cir. 2003] (quoting Valdez [v. Ward, 219 F.3d
[1222] 1229-30 [10th Cir. 2000]).
House, 527 F.3d at 1018.
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. 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.
Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 786 (Jan. 19, 2011) (internal quotation marks
and citation omitted). 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
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holding in a prior decision of [the Supreme] Court.” Id. “[E]ven a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. (citation omitted). “Section
2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems, not a substitute for ordinary error correction through appeal.” Id.
(internal quotation marks and citation omitted).
Under this standard, “only the most serious misapplications of Supreme Court precedent
will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671.
Furthermore,
[a]s a condition for obtaining habeas corpus relief 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.
Richter, 131 S. Ct. at 786-87.
The Court reviews claims of factual errors 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, see Sumner v. Mata, 455
U.S. 591, 592-93 (1982), and Applicant bears the burden of rebutting the presumption by clear
and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). “The
standard is demanding but not insatiable . . . [because] ‘[d]eference does not by definition
preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell,
537 U.S. 322, 340 (2003)).

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A claim, however, 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. Richter, 131 S. Ct. at 784.
(“[D]etermining 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”). Furthermore, “[w]hen a federal claim has been 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.”
Id. at 784-85.
In other words, the Court “owe[s] deference to the state court’s result, even if its
reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999).
Therefore, the Court “must uphold the state court’s summary decision unless [its] independent
review of the record and pertinent federal law persuades [it] that [the] result contravenes or
unreasonably applies clearly established federal law, or is based on an unreasonable
determination of the facts in light of the evidence presented.” Id. at 1178. “This ‘independent
review’ should be distinguished from a full de novo review of the [applicant’s] claims.” Id.
(citation omitted). Likewise, the Court applies the AEDPA (Antiterrorism and Effective Death
Penalty Act) 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). 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. See Gipson v. Jordan,
376 F.3d 1193, 1196 (10th Cir. 2004).

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IV. ANALYSIS
It was clearly established when Applicant was convicted that a defendant has a right to
effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). To establish
that counsel was ineffective, Applicant must demonstrate both that counsel’s performance fell
below an objective standard of reasonableness and that counsel’s deficient performance resulted
in prejudice to his defense. See id. at 687. “Judicial scrutiny of counsel’s performance must be
highly deferential.” Id. at 689. There is a “strong presumption” that counsel’s performance falls
within the range of “reasonable professional assistance.” Id. It is an applicant’s burden to
overcome this presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id.
Under the prejudice prong, an applicant must establish “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. In assessing prejudice under Strickland the question is whether it is reasonably
likely the result would have been different. Id. at 791-92. “The likelihood of a different result
must be substantial, not just conceivable.” Id. (citing Strickland, 466 U.S. at 693.)
Furthermore, under AEDPA, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking whether
defense counsel’s performance fell below Strickland’s standard,” which is the question we would
ask if the claim came to us “on direct review of a criminal conviction in a United States district
court.” Richter, 131 S. Ct. at 785. “When § 2254(d) applies, 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.” Richter, 131 S. Ct. at 788.

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If Applicant fails to satisfy either prong of the Strickland test, the ineffective assistance of
counsel claim must be dismissed. See id. at 697. Also, ineffective assistance of counsel claims
are mixed questions of law and fact. See id. at 698.
The CCA addressed Applicant’s ineffective assistance claims as follows:
Defendant next contends that the trial court erred in summarily denying
his postconviction motion regarding ineffective assistance of counsel without an
evidentiary hearing. We disagree.
The Sixth Amendment of the United States Constitution and article II,
section 16 of the Colorado Constitution guarantee the effective assistance of
counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lanari v. People,
827 P.2d 495, 500 (Colo. 1992).
A defendant claiming ineffective assistance of counsel must establish both
deficient performance and prejudice. Strickland, 466 U.S. at 687; Ardolino v.
People, 69 P.3d 73, 76 (Colo. 2003). In reviewing any claim for ineffective
assistance of counsel, we must indulge a strong presumption that counsel’s
performance fell within the wide range of reasonable professional assistance.
Stricland, 466 U.S. at 689; People v. Drake, 785 P.2d 1257, 1273 (Colo. 1990).
An attorney’s strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable. Strickland, 466 U.S.
at 690-91. Mere disagreement as to trial strategy will not support a claim of
ineffectiveness. Davis v. People, 871 P.2d 769, 773 (Colo. 1994).
Defendant contends that defense counsel rendered ineffective assistance
because she had a conflict of interest. Where a trial court does not inquire into a
potential conflict of interest, a defendant, to obtain a reversal, must establish that
defense counsel was subject to an actual conflict of interest that adversely affected
counsel’s performance. People v. Kelling, 151 P.3d 650, 657 (Colo. App. 2006).
A conflict of interest exists when defense counsel’s representation of one client is
directly adverse to another client or when counsel’s ability to represent a client is
materially limited by counsel’s responsibility to another client or a third person or
by counsel’s own interests. People v. Edebohls, 944 P.2d 552, 556 (Colo. App.
1996). The defendant has the burden to demonstrate that counsel actively
represented conflicting interests and must point to specific instances which
suggest actual impairment of the defendant’s interests. People v. Kenny, 30 P.3d
734, 745 (Colo. App. 2000).
We recognize that a defendant seeking postconviction relief pursuant to
Crim. P. 35(c) is entitled to a prompt evidentiary hearing unless the motion, the
files, and the record clearly establish that the allegations presented in the motion
are without merit and do not warrant postconviction relief. People v. Rodriguez ,
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914 P.2d 230, 255 (Colo. 1996); People v. Trujillo, 190 Colo. 497, 499, 549 P.2d
1312, 1313 (1976); People v. Hutton, 183 Colo. 388, 391, 517 P.2d 392, 394
(1973); see also White v. Denver Dist. Court, 766 P.2d 632, 634 (Colo. 1988).
Where allegations are merely conclusory and fail to allege prejudice or are refuted
by the record, there is no error in summarily denying a defendant’s motion
without holding an evidentiary hearing. See People v. Osorio, 170 P.3d 796, 80102 (Colo. App. 2007).
Here, defendant failed to allege any specific exculpatory evidence his
counsel should have discovered that would be sufficient to warrant a hearing and
therefore failed to establish any prejudice under Strickland. The motion contained
only conclusory allegations of unethical conduct and ineffective assistance of
counsel . Further, defendant does not point to anything in the record that suggests
an impairment or compromise of his interests for the benefit of another party. Cf.
People v. Miera, 183 P.3d 672, 675 (Colo. App. 2008). It was, therefore, within
the trial court’s discretion to dismiss the motion without an evidentiary hearing.
See People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002); see also White, 766
P.2d at 635 (in a Crim. P. 35(c) motion, a defendant must allege facts that, if true,
would provide a basis for relief).
See Resp., Doc. No. 15-4 (Appx. D) at 10-13.
The Court finds that even if trial counsel’s performance fell below the range of
reasonable professional assistance, the perfunctory defense claim, as well as the conflict of
interest, failure to prepare and formulate a defense, and ignored evidence claims are conclusory
and fail to allege prejudice.
As for Applicant’s failure to call witnesses and surveillance tape claims, Applicant fails
to state what the witnesses would have attested to and what the surveillance tapes would have
shown. Also, Applicant does not assert how he was prejudiced by trial counsel by only meeting
with him three times and by trial counsel’s failure to return his telephone calls.
Based on the above findings, the CCA’s decision is not contrary to, or an unreasonable
application of, established Supreme Court precedent. Applicant’s allegations lack supporting
factual averments and are insufficient to state a claim on which relief can be based. A court may
not assume that an applicant can prove facts that have not been alleged, or that a respondent has

14

violated laws in ways that an applicant has not alleged. Applicant, therefore, fails to assert a
claim for federal habeas relief, and the Application is denied for lack of merit.
V. ORDERS
Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254, ECF No. 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 pursuant to
28 U.S.C. § 2253(c). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in
good faith, and, therefore, in forma pauperis status is denied for the purpose of appeal. See
Coppedge v. United States, 369 U.S. 438 (1962). If Applicant 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. It is
FURTHER ORDERED that the Motion for Rule 56 A, ECF No. 32, is denied as moot.
DATED this 10th day of October, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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