Campos v. Falk et al

Filing 20

ORDER on Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. The application is denied. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied. This case is dismissed, by Judge Lewis T. Babcock on 5/31/12. (gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Lewis T. Babcock
Civil Action No. 11-cv-03279-LTB
DAMIAN J. CAMPOS,
Applicant,
v.
JAMES FALK, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

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

This matter is before the Court on Applicant Damian J. Campos’ Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) (ECF No. 1).
Respondents answered the Application (ECF No. 18) and Applicant filed a traverse
(ECF No. 10). As Applicant is proceeding pro se, I must construe his pleadings liberally
and hold him to a “less stringent standard.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). After reviewing the
pertinent portions of the record in this case including the Application, the Answer, the
Traverse, and the state court record (ECF No. 17), I conclude that the Application
should be denied.

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I.

Background
On March 16, 2006, Applicant was convicted by a jury in the Weld County District

Court of Colorado of vehicular homicide while driving in a reckless manner, and leaving
the scene of the accident resulting in death. Answer at 6. The Colorado Court of
Appeals summarized the facts in Applicant’s case as follows:
Defendant lost control of his vehicle while driving a large truck with
several passengers inside. Witnesses testified that defendant seemed to
be deliberately weaving across the road and striking construction barrels
on the shoulder. One passenger testified that he and other passengers in
the vehicle asked defendant to stop hitting the barrels, but defendant
continued. The vehicle finally flipped and landed on its top. At trial, an
accident reconstruction expert estimated that the vehicle was traveling at
sixty-seven miles per hour in a thirty mile per hour zone when it rolled
over. After the accident, all the vehicle’s occupants but one fled the
scene. The remaining passenger suffered severe head injuries and died
instantly when the vehicle rolled over.
Police arrived at the scene shortly after the accident but did not
encounter any of the occupants who fled. Their investigation led them to
the home of defendant’s friend, where they found defendant hiding
underneath a vehicle parked in the backyard of the house. The police
conducted several interviews of the witnesses present, including
defendant.
Before conducting the interview with defendant, the investigating
officers called a Spanish-speaking officer to the scene to interpret for
them. The Spanish-speaking officer, Officer Shannon, advised defendant
of his rights in Spanish. Defendant indicated that he was willing to speak
with the officers without an attorney present. During the interview,
defendant told the officers that he had not consumed any alcohol after the
accident. Evidence at trial showed that defendant had alcohol in his blood
about four hours after the accident occurred.
People v. Damian Jordan Campos, No. 06CA1400 (Colo. App. Nov. 21, 2007)
(unpublished opinion).
Following the jury trial, the trial court sentenced Applicant to consecutive
sentences of ten and twelve years. Id. Applicant filed a direct appeal to the Colorado
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Court of Appeals, and the appellate court affirmed his convictions and sentence on
November 21, 2007. See Campos, No. 06CA1400. The Colorado Supreme Court
denied certiorari review on March 10, 2008. See Pre-Answer Resp. at Ex. 3. The
mandate issued on March 25, 2008. See id. at Ex. 4.
On April 23, 2008, Applicant filed a post-conviction motion pursuant to Colorado
Rule of Criminal Procedure 35(c) in which he alleged that he received ineffective
assistance of trial counsel. Answer at 3. The trial court appointed counsel to represent
Applicant and counsel filed a supplemental post-conviction motion on April 16, 2009. Id.
After a hearing, the trial court denied the motion on August 24, 2009. Id. The Colorado
Court of Appeals affirmed the trial court on January 13, 2011. See People v. Campos,
No. 09CA2073 (Colo. App. Jan. 13, 2011) (unpublished opinion). The Colorado
Supreme Court denied certiorari review on May 9, 2011, and the mandate issued on
June 29, 2011. Id.
Applicant initiated the instant action in this Court on December 14, 2011. In the
Application, he asserted the following claims:
1. He was provided ineffective assistance of counsel because counsel
failed to obtain a medical expert to testify regarding the effects of a head
injury Applicant received prior to the accident;
2. He was provided ineffective assistance of counsel because counsel
failed to obtain an expert to testify regarding reconstruction of the accident
scene; and
3. He did not fully understand the state court proceedings because he
was not provided with a translator that could speak his dialect.

On December 19, 2011, Magistrate Judge Boyd N. Boland entered an order
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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 intend to raise either or both
of those defenses. Respondents filed a Pre-Answer Response on January 19, 2012. In
the Pre-Answer Response, Respondents conceded that the Application was timely
pursuant to 28 U.S.C. § 2244(d), but argued that the claims were procedurally defaulted
as a result of Applicant’s failure to exhaust his claims in the state courts.
On February 23, 2012, the Court entered an order dismissing Claims One and
Three as unexhausted and procedurally defaulted. However, the Court found that
Applicant had exhausted his second claim during the course of his post-conviction
proceeding. Therefore, the Court directed Respondents to file an Answer that fully
addressed the merits of Claim Two. The Court also entered an order directing
Respondents to file a complete copy of Applicant’s state court proceedings.
Respondents filed the state court record on March 6, 2012, and the Answer on
March 22, 2012. Applicant submitted a reply on April 13, 2012. This matter is now fully
briefed and ripe for review.
II.

Legal Standard
In the course of reviewing state criminal convictions in federal habeas corpus

proceedings, a federal court does not sit as a super-state appellate court. See Estelle
v. Mcguire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990).
“When a federal district court reviews a state prisoner’s habeas petition pursuant to 28
U.S.C. § 2254 it must decide whether the Applicant is in custody in violation of the
Constitution or laws or treaties of the United States. The court does not review a
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judgment, but the lawfulness of the Applicant’s custody simpliciter.” Coleman v.
Thompson, 501 U.S. 722, 730 (1991) (internal quotations and citations omitted). The
exhaustion of state remedies requirement in federal habeas cases dictates that a state
prisoner must “give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Accordingly, based on
denial of certiorari review by the Colorado Supreme Court in Applicant’s case, habeas
review in this Court is concerned with the proceeding in the Colorado Court of Appeals
which was the final substantive proceeding in the state appellate review process.
Because the Application was filed 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. 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)). Under AEDPA, a district
court may only consider a habeas petition when the Applicant argues that he is “in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). The grounds for granting a writ of habeas corpus are very limited: “a
writ of habeas corpus . . . shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless 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 unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” Id. §
2254(d)(1)-(2); see also Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000) (citation
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omitted).
A state court decision is “contrary to” clearly established Federal law if it “‘applies
a rule that contradicts the governing law set forth in [Supreme Court] cases’ or if it
‘confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a different result from [Supreme Court]
precedent.’” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529
U.S. 362, 405-06 (2000)). A state court decision involves an “unreasonable application”
of clearly established Federal law when “‘the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the Applicant’s case.’” Lockyer v. Andrade, 538 U.S. 63, 75
(2005) (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause
requires the state court decision to be more than incorrect or erroneous . . . . The state
court's application of clearly established law must be objectively unreasonable.” Id.
(citing Williams, 529 U.S. at 409-10, 412). 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.’”
Id. (quoting Williams, 529 U.S. at 411). Finally, when analyzing a petition, all
determinations of factual issues by the state court are presumed to be correct and the
Applicant has the “burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). “[W]hether a state court’s decision was
unreasonable must be assessed in light of the record [that court] had before it.” Holland
v. Jackson, 542 U.S. 649, 651-52 (2004) (per curiam) (citations omitted).
III.

Discussion
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Claim Two is the only claim remaining at issue in this action. In his second claim,
Applicant alleges that he received ineffective assistance of counsel because trial
counsel failed to obtain an expert to testify regarding accident reconstruction.
Application at 6. Applicant asserts that he was denied an expert witness because of the
state budget. Id.
In addressing this claim during Applicant’s post-conviction appeal, the Colorado
Court of Appeals found the following:
The district court observed that counsel, in forming her trial
strategy, was initially defending against the offense of vehicular homicide
while driving under the influence (DUI). Vehicular homicide as a result of
driving in a reckless manner, the offense defendant was eventually
convicted of, was not a charged offense at that time.
The question of whether defendant was driving was not in dispute,
and the evidence counsel had at the time she formed her strategy
included reports from other passengers in defendant’s vehicle and two
drivers who witnessed defendant’s driving just prior to the crash. Counsel
anticipated that defendant’s passengers would testify at trial that
defendant had been purposely trying to knock over construction barrels on
the side of the road and continued to do so after they told him to stop. A
passenger in a car coming the other way saw defendant swerving back
and forth and into her lane of travel. In order to avoid hitting this vehicle
head-on, defendant then swerved off the road, hit an embankment, and
rolled the vehicle, resulting in the death of one of his passengers. Another
driver also witnessed defendant’s swerving prior to the accident. There
was also strong evidence that defendant had been drinking alcohol.
Defense counsel testified at the postconviction hearing that, in light
of the evidence in the discovery, she did not anticipate an outright
acquittal at trial. She instead decided to focus on the DUI aspect of the
charge. She determined as a matter of strategy to pursue a lesser offense
in order to give the jury an alternative to the more serious vehicular
homicide – DUI charge, rather than risk a conviction outright. Thus, at
defendant’s request, the jury was instructed on the lesser non-included
offense of vehicular homicide as a result of driving in a reckless manner.
Counsel consulted with senior attorneys in her office, as well as
with the public defender’s chief trial deputy, regarding whether an expert in
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accident reconstruction would be helpful in defending the case. She
discussed the facts of the case with the deputy, who was responsible for
assigning funds for expert witnesses, and together they concluded that
expert testimony would not make a significant difference at trial.
Counsel testified that she based this determination on the fact that
eyewitnesses could testify as to defendant’s driving, and defendant’s
actual speed was not as important as the manner in which he drove.
Counsel did not believe that whether defendant was driving forty-five miles
per hour or sixty-seven miles per hour in a thirty-mile per hour speed zone
was determinative of the question of recklessness, and she did not want to
lose credibility with the jury by disputing an issue that did not mitigate the
eyewitness evidence of defendant’s erratic driving. She also concluded
that an accident expert could not have offered any information as to the
amount defendant had to drink or any explanation for why he was seen
driving “all over the road.”
The record, both of the trial and the postconviction hearing, fully
supports the district court’s factual findings. Further, while defendant
reiterates on appeal the arguments he made in the district court, we
conclude that the court properly determined that counsel’s choice of
defense strategy was reasonable under the circumstances and was not
constitutionally deficient.
Campos, 09CA2073 at 4-7.
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 his trial 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 687-88. In addition, “[j]udicial 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 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, Applicant
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must establish “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. If
Applicant fails to satisfy his burden with regard to either prong of the Strickland test, his
ineffective assistance of counsel claim must be dismissed. See id. at 697. Ineffective
assistance of counsel claims are mixed questions of law and fact. See id. at 698.
Moreover, strategic decisions of trial counsel are ordinarily shielded from
charges of ineffectiveness. “‘Tactical decisions, whether wise or unwise, successful or
unsuccessful, cannot ordinarily form the basis of a claim of ineffective assistance.’”
Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995), overruled on other grounds
by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10th Cir. 2001). “For counsel’s
advice to rise to the level of constitutional ineffectiveness, the decision [of counsel] . . .
must have been completely unreasonable, not merely wrong, so that it bears no
relationship to a possible defense strategy.” Hatch, 58 F.3d at 1459 (quotation
omitted). The Court’s deference to an attorney’s strategic trial decision will stand
unless the decision itself was objectively unreasonable. Bullock v. Carver, 297 F.3d
1036, 1047 (10th Cir. 2002). But “[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.’” United

States v. Nguyen, 413 F.3d 1170, 1181 (10th Cir. 2005) (citing Bullock, 297 F.3d at
1044).
During the post-conviction hearing, Applicant’s counsel extensively discussed
her trial strategy. First, she pointed out that, although Applicant had told her the
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accident occurred when he was retrieving a baseball from the floor of the car, the
prosecution had four witnesses who were prepared to testify that the defendant was
intentionally driving recklessly before he hit the construction barrel. See Trial Court
Transcript, 2009-07-20, p. 9. She testified to the following regarding her trial strategy:
Q

Based on what the defendant was telling you had occurred,
coupled with what you were reading in discovery, did you develop
a strategy to attack the most serious charge in this case, which
would have been the Class 3 felony, vehicular homicide DUI?

A

Yes.

Q

And can you describe for us what your strategy was.
....

A

As any trial attorney would, our strategy was to try to beat the
charge, and we looked at it from several angles. The first would
have been whether or not a straight acquittal to the vehicular
homicide DUI was a reasonable possibility and I determined that
wasn’t probably the best way to present this case to the jury.

Q

Why did you conclude that that was not a likely outcome?

A

There was substantial evidence of DUI in this case. There were
several different witnesses who testified to different amounts of
drinking, but there were witnesses who testified to drinking before
the party left for Cheyenne, there were witnesses who testified to
drinking while all of the people were in Cheyenne, and there were
at least two witnesses who testified to as many as four to six beers
being consumed by Mr. Campos while driving home from
Cheyenne on that 45-minute to one hour drive.

And so there was significant and, in my opinion, substantial
evidence of drinking, which of course came down to whether or not
those witnesses were credible and could be believed. But it was
not an insignificant amount of evidence as to drinking before,
during and while driving.
Q

Facing those facts, what decisions did you make? What tactical
decisions did you make to try and nullify that evidence and achieve
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a less serious outcome for the defendant?
A

Well, one of the option you can always give when you’re asking a
jury to look at whether or not something happened exactly the way
the prosecution has presented it, and when you do have some
differing stories - - because there were some differences in how
much alcohol had been consumed, there was really no one who
what testifying that no alcohol had been consumed, but there were
some differences in exactly how much.
And in looking at that, it’s, I think, a very accepted practice to
consider offering lesser offense. A jury in a case with some pretty
substantial evidence is more likely to consider a lesser offense
sometimes than they are an outright acquittal. And that’s a
decision that you have to make as a trial counsel is whether you
are going for the outright acquittal or whether it would be better in
your client’s defense to try for something less, to mitigate.
He was looking at 24 years on the vehicular homicide/DUI
possibly. I knew my Judge well, I had been in front of him for
many years, and I knew that if we were to get a conviction on that
vehicular homicide/DUI, Mr. Campos was very likely looking at an
aggravated sentence and that could be up to 24 years. We had to
mitigate that.
....

Q

If you could talk for a moment about why you perceive that offering
the jury an alternative to the most serious charge, in other worse, a
possible compromise verdict, is beneficial to - - was beneficial in
that case to your client?

A

Yeah, sometimes it’s not. Sometimes you want to go for the
outright acquittal. And in this case, I did not think that that was the
best strategy considering what Mr. Campos was facing, because
there was substantial evidence that there had been drinking that
day, but there was some differing on how much drinking.
And because there was substantial evidence that there had been
some bad driving in this case, I thought that it was important for
the jury to have other things that they can consider, because a jury
in that situation - - I mean, we have - - these are not the only
pictures that are over here to my left. We had some - - some very
uncomfortable and somewhat gruesome pictures from the scene.
I knew that would have an effect on the jury.
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I knew that the bad driving that was reported by, as I recall, maybe
three or four of the witnesses in the case, and the drinking that
was reported by two or three of the witnesses in the case, that this
was - - this was a time that we needed to give the jury a lesser
option in case they might look at drinking in the case, but think
that, you know, perhaps that was significant, but maybe not
significant enough to convict on that.
Had they not had that lesser option, I think that it was very likely
hat the jury may have convicted on the DUI, and giving them that
lesser option is something that has been shown many times can
be very beneficial to a client in a situation where he’s facing many,
many years.
Trial Court Transcript, 2009-07-30, p. 9-14.
Ms. Stout also testified that, “very early on in the case” she considered the
option of obtaining an accident reconstruction expert. Id. at 14. She consulted with
Frances Brown, who was responsible for the disbursement of expert witness funds. Id.
at 14-15. After Ms. Stout discussed the evidence with Ms. Brown, they jointly
determined that “it was unlikely that further expert testimony would create a significant
difference in the case.” Id. at 16. Ms. Stout explained the following:
A

Well, a lot of it had to do with the fact that, you know, as was
discussed when everyone was here on Tuesday, speeding is not
reckless driving per se. And the more important issue in looking at
that case was the driving, the testimony of two people in the case,
that there may have been some - - some intentional bad driving,
and the testimony of the two people outside the car that there - - it
appeared that the bad driving was intention, that was more of the
argument for reckless driving because speeding is not reckless
driving per se.

Q

Based on your review of discovery, there were witnesses who had
put the defendant’s speed closer to the 40 to 45 miles per hour
that Mr. Cover concluded, correct?

A

The two people in the car? Was that who you’re referring to?
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Q

Well, actually three people in the car: Mr. Martinez, who was the
passenger; and then the two other people who talked about the
intentional bad driving.

A

Yes.

Q

And obviously you knew that Officer Bratton had come up with a
somewhat higher figure of 67 miles per hour, correct?

A

Yes.

Q

Did you consider that difference between 45 miles and 67 miles
per hour significant in terms of the outcome of this case?

A

Well, the - - I think that the thing that we looked at is that there
were things that were more indicative of reckless driving or not
than that. Driving 45 - - driving 15 miles over the speed limit
through a construction zone and having the kind of driving that’s
described, or driving 67 miles through a construction zone, and
having the kind of driving that’s described, I don’t think there’s a
significant different for the jury.
Mr. Furman and I will have to disagree on that, but I don’t think
there’s a significant difference for a jury at that point.
The biggest point as far as the driving was the driving, not the
speed, in the analysis we did. And I think that’s played out by the
arguments of counsel at trial because I don’t recall arguments
being made that this was reckless because of the speed; I recall
the arguments being made that this was reckless because of the
way the car was being driven.
....

Q

Therefore, it was the insignificance of the speed calculation a
factor in your decision, along with Ms. Brown’s decision, not to
pursue funding for an accident - - an expert in accident
reconstruction?

A

Yes. And part of that is because it had nothing to do with the DUI
count with which he was charged. That’s part of the decision, is
that there was nothing that an accident reconstructionist could
have done that would have either verified or negated whether or
not he had four to six beers in the car while driving back from
Cheyenne, and nothing that they could have done that would have
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negated whether or not he was intentionally driving all over the
road.
Trial Court Transcript, 2009-07-30, p. 16-18.
Ms. Stout also testified that she felt there was a risk associated with spending
too much time or emphasis on the difference in speed. Id. at 19. In her opinion,
spending an inordinate amount of time attempting to convince the jury that Applicant
was driving 15 miles over the speed limit instead of 30 miles over would have
undermined her credibility. Id. at 19-20. In addition, Ms. Stout testified that there were
other circumstances to consider that, to her, were more compelling than the speed of
the car. She pointed to the fact that all of the passengers of the car fled from the
scene, and that Applicant was “found two hours later highly intoxicated, hiding in the
backyard of a family member underneath a junked car. [The jury] had to factor all of
that into their analysis. This was not a cold analysis of was he doing 67 or was he
doing 45. It was so much more than that.” Id. at 23. Therefore, Ms. Stout expressed
the ultimate opinion that hiring an expert in accident reconstruction would not have
changed the outcome of Applicant’s case. Id. at 62.
The state court concluded that Ms. Stout made the reasonable decision that
bringing in an expert to testify on a “relatively less significant aspect of the case”, or the
speed that Applicant was driving at the time of the accident would be an approach that
risked conviction on the highest charge of Vehicular Homicide - Driving Under the
Influence, and could result in twelve more years in prison for Applicant. See Trial Court
Record, p. 373. In addition, upon its review of the pleadings and the trial record, the
state court concluded that speed was not a significant issue at trial when compared to
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the issue of the recklessness of Applicant’s driving and his level of intoxication. Id. at
376. The trial court found that there were only two instances in the entire trial when the
police officer’s calculation of Applicant’ speed was mentioned – once during the
prosecution’s opening statement and once during the police officer’s trial testimony.
Therefore, the trial court concluded that the defense strategy was not only reasonable,
but that it ultimately proved to be successful and saved Applicant up to twelve years in
prison. Id. The state 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 pointed to
any clear and convincing evidence to contradict those findings.
Here, the trial court and the appellate court identified the appropriate Supreme
Court standard set forth in Strickland v. Washington and found that trial counsel made
a reasonable strategic decision that additional expert testimony was unlikely to change
the jury’s verdict. Considering the testimony presented during the post-conviction
hearing, the Court finds that trial counsel considered the possibility of obtaining an
accident reconstruction expert, but instead, opted to focus on pursuing the lesser nonincluded offense of vehicular homicide as a result of driving in a reckless manner. The
Court will not second guess this reasonable decision. See Chandler v. United States,
218 F.3d 1305, 1314 n. 15 (11th Cir. 2000) (finding that even if the record is incomplete
or unclear about counsel’s actions, it is still presumed that counsel exercised
reasonable professional judgment). Moreover, the mere fact that the defense which
the Applicant’s counsel chose to present at trial did not result in an outright acquittal
does not prove ineffectiveness of counsel. Id. at 1314. As the trial court pointed out,
the defense counsel’s decision to offer the lesser non-included offense of vehicular
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homicide as a result of driving in a reckless manner saved Applicant from a possible
additional twelve years of prison time.
Applicant has failed to demonstrate that speed was a critical factor to the jury’s
decision, and he makes no showing that he was actually denied an expert because of
budget issues in the public defender’s office. Therefore, because the Court finds it
possible that trial counsel’s decision to not present expert testimony was a “difficult but
thoughtful tactical decision,” the Court must presume that counsel’s conduct was
“within the range of competency.” Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir.
1988). Applicant has simply failed to overcome the “strong presumption” that trial
counsel’s performance falls within the range of “reasonable professional assistance.”
Strickland, 466 U.S. at 689.
Accordingly, in light of all of the above, the Court finds that the appellate court’s
conclusion was not contrary to or an unreasonable application of federal law and
Applicant is not entitled to federal habeas relief on his second claim.
IV.

Conclusion

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 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.
Accordingly, it is ordered:
1.

Applicant Damian J. Campos’ Application for a Writ of Habeas Corpus Pursuant
16

to 28 U.S.C. § 2254 (ECF No. 1) is denied.
2.

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

3.

Leave to proceed in forma pauperis on appeal is denied with leave to re-file in
the Tenth Circuit.

4.

This case is dismissed with prejudice.
Dated: May 31, 2012
BY THE COURT:
s/ Lewis T. Babcock
Lewis T. Babcock
United States District Judge

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