Ankeney v. Jones

Filing 33

ORDER on Application for Writ of Habeas Corpus. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and/or 28 U.S.C. § 2241 1 is denied and this case is dismissed with prejudice. ORDERED that there is no basis on which to issue a certificate of appealability. ORDERED that Applicant's motions to admit or deny allegations 28 , for a hearing 29 , to appoint counsel 30 , and for summary judgment 31 are DENIED as moot, by Judge Lewis T. Babcock on 9/25/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Lewis T. Babcock
Civil Action No. 12-cv-00808-LTB
RANDAL ANKENEY,
Applicant,
v.
SUSAN JONES, Warden of Fremont Correctional Facility (“Fremont”),
TOM CLEMENTS, Director of the Colorado Department of Corrections (“CDOC”), and
JOHN SUTHERS, Attorney General of the State of Colorado,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on Applicant Randal Ankeney’s pro se Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and/or 28 U.S.C. § 2241
(ECF No. 1) (“the Application”). Respondents have filed an Answer (ECF No. 23) (“the
Answer”) addressing the merits of the remaining claims and Applicant has filed a Reply
in Support of Application for a Writ of Habeas Corpus (ECF No 32) (“the Traverse”).
The Court also has received a compact disk containing in electronic format the state
court record. Although certain transcripts on the disk are provided in a format that is not
readable to the Court, there is no indication that any of the unreadable transcripts are
pertinent to the Court’s disposition of this action. The only transcript that appears
relevant, and which the Court has reviewed, is the transcript of Mr. Ankeney’s October
12, 2007 plea hearing and Respondents have provided a copy of that transcript to the
Court. (See ECF No. 11-10.) After reviewing the record, including the Application, the

Answer, and the Traverse, the Court finds and concludes that the Application should be
denied and the case dismissed with prejudice.
I.

Background
Mr. Ankeney is challenging the validity of his conviction and sentence in Larimer

County District Court case number 06CR1548. The factual background of Mr.
Ankeney’s conviction and sentence was summarized by the Colorado Court of Appeals
as follows:
Defendant was charged with numerous counts based
on allegations that he had sexually assaulted a fourteenyear-old victim. In exchange for the charges’ dismissal, he
pled guilty to child abuse with a factual basis of sexual
assault on a child. Defendant and the People stipulated to
an eight-year sentence in the Department of Corrections’
custody, to run concurrently with defendant’s sentence for
sexually assaulting a child in Arapahoe County (Case
Number 06CR125).
People v. Ankeney, No. 10CA1975, slip op. at 2 (Colo. App. Feb. 16, 2012)
(unpublished) (ECF No. 11-9 at 2). Mr. Ankeney was sentenced on January 4, 2008.
On October 15, 2008, the trial court entered an order of restitution. Mr. Ankeney did not
file a direct appeal.
On October 29, 2009, Mr. Ankeney filed in the trial court a postconviction motion
pursuant to Rule 35(a) and (c) of the Colorado Rules of Criminal Procedure. The trial
court denied postconviction relief and the trial court’s order was affirmed on appeal.
See id. Mr. Ankeney did not seek certiorari review in the Colorado Supreme Court in
the postconviction proceedings.
Mr. Ankeney asserts four claims for relief in the Application, although claim 4
includes two distinct parts. The Court previously entered an Order to Dismiss in Part
2

(ECF No. 15) in which claims 2, 4(a) and 4(b) were dismissed because those claims do
not present any issues that are cognizable in this habeas corpus action pursuant to 28
U.S.C. § 2254. As a result, only claims 1 and 3 remain pending before the Court. Mr.
Ankeney asserts the following in his remaining claims:
Claim 1: In Ankeney’s criminal case, the government
withheld and/or suppressed material, exculpatory evidence
in violation of the U.S. Constitution. The government
negotiated a plea deal with Ankeney in bad faith, knowing
that the withheld evidence seriously contradicted their most
important witness and undermined the factual basis for their
entire case. Ankeney’s conviction was obtained in violation
of the U.S. Constitution and in violation of fundamental due
process and fair trial guarantees.
(ECF No. 1 at 10.)
Claim 3: Because of the last minute fact stipulation insisted
upon by the prosecutor and imposed by the court, the
sentence of eight years violates the U.S. Constitution, which
limits the maximum sentence on the lone guilty count to two
years.
(ECF No. 1 at 71.) Respondents concede that these claims are timely and the Court
has determined they are exhausted.
II.

Standard of Review
The Court takes judicial notice of the fact that Mr. Ankeney is an attorney and

that his Colorado attorney registration number is 30989. According to the attorney
registration information available on the website of the Colorado Supreme Court, it
appears that his license currently is under suspension. Therefore, the Court construes
the Application and other papers filed by Mr. Ankeney liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
3

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). Mr. Ankeney bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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. Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011). 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.” Id. at
784. Thus, “[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. 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.” Id. at 784. 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 [the Court’s] independent
review of the record and pertinent federal law persuades [the Court] that its result
4

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.
“[T]his ‘independent review’ should be distinguished from a full de novo review of the
petitioner’s claims.” Id.
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 the Court must answer under § 2254(d)(1) is whether
Mr. Ankeney 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). Clearly established federal law “refers to the holdings, as opposed to the dicta,
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly
established federal law if: (a) “the state court applies a rule
5

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.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. Furthermore,
[E]valuating 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
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been squarely established by [the Supreme] Court.
Richter, 131 S. Ct. at 786 (internal quotation marks omitted). 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.” Id. In addition, “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
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; 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”).
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.
Richter, 131 S. Ct. 786-87.
The Court reviews claims asserting 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 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 must
presume that the state court’s factual determinations are correct and Mr. Ankeney bears
7

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.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
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).
III. Merits of Applicant’s Remaining Claims
A. Claim 1
As indicated above, Mr. Ankeney contends in his first claim that the prosecution
withheld and/or suppressed exculpatory evidence that undermined the factual basis for
their entire case and his guilty plea. The allegedly exculpatory evidence Mr. Ankeney
contends the prosecution withheld includes the results of government investigations into
the victim’s claims, the identity of witnesses, the victim’s prior inconsistent statements,
computer records, the victim’s psychiatric history, the victim’s criminal history, and the
victim’s prior drug use.
Suppression “of evidence favorable to an accused . . . violates due process
where the evidence is material either to guilt or to punishment.” Brady v. Maryland, 373
U.S. 83, 87 (1963). “There are three components of a true Brady violation: The
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527
8

U.S. 263, 281-82 (1999). “Prejudice satisfying the third element exists ‘when the
suppressed evidence is material for Brady purposes.’” Douglas v. Workman, 560 F.3d
1156, 1173 (10th Cir. 2009) (citing Banks v. Dretke, 540 U.S. 668, 691 (2004)).
Generally, evidence is material “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (internal quotation marks
omitted). A reasonable probability of a different result exists “when the government’s
evidentiary suppression undermines confidence in the outcome of the trial.” Id. at 434
(internal quotation marks omitted). A state court’s resolution of a Brady claim is a mixed
question of law and fact reviewed under § 2254(d)(1). See Moore v. Gibson, 195 F.3d
1152, 1165 (10th Cir. 1999).
The Colorado Court of Appeals rejected Mr. Ankeney’s evidence suppression
claim on the merits, concluding that the record supported the trial court’s determination
that Mr. Ankeney was not prejudiced because the allegedly exculpatory evidence “was
either harmful to defendant or would have had little impact.” (ECF No. 11-9 at 5.)
Respondents maintain that this decision is neither contrary to, nor an unreasonable
application of, clearly established federal law under § 2254(d)(1) because, while it is
clear that Brady applies to disclosures of exculpatory evidence for use at trial, there is
no clearly established federal law that requires disclosure of exculpatory evidence prior
to entry of a guilty plea. Mr. Ankeney maintains that Brady does apply to the
suppression of exculpatory evidence prior to entry of a guilty plea and he contends that
the Colorado Court of Appeals’ application of Brady in his case is incorrect for two
reasons. (See ECF No. 32 at 6-8.) First, he asserts that the Colorado Court of Appeals
9

applied the wrong standard of review. Second, he asserts that the state courts could
not reasonably have concluded he suffered no prejudice without holding a hearing to
determine specifically what evidence was suppressed and without considering the
substance of the suppressed evidence.
The Court finds that Mr. Ankeney is not entitled to relief on his Brady claim
because he fails to identify any clearly established federal law providing that Brady
applies when a criminal defendant waives his constitutional right to a trial and enters a
guilty plea. As noted above, 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, 527 F.3d at 1016.
Respondents are correct that the United States Supreme Court has never
extended the holding in Brady to the context of a guilty plea. See, e.g., Hamilton v.
Romanowski, No. 5:10-CV-14392, 2012 WL 2224450 at **13-14 (E.D. Mich. May 7,
2012) (concluding that no clearly established federal law under § 2254(d)(1) supports
application of Brady to an alleged failure to disclose exculpatory information prior to
entry of a guilty plea). To the extent the exculpatory evidence Mr. Ankeney contends
was not disclosed is impeachment evidence, it is clear that the Brady claim lacks merit
because the Supreme Court specifically has held “that the Constitution does not require
10

the Government to disclose material impeachment evidence prior to entering a plea
agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002)
(emphasis added). To the extent Mr. Ankeney’s Brady claim is premised on an alleged
failure to disclose non-impeachment exculpatory evidence, the claim still lacks merit due
to the absence of clearly established federal law.
Mr. Ankeney disagrees with this conclusion and cites United States v. Ohiri, 133
F. App’x 555 (10th Cir. 2005), in support of his argument that Brady extends to the
failure to disclose exculpatory evidence in cases involving plea agreements. In Ohiri,
the defendant appealed “from the district court’s denial of his motion to amend his
original motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. §
2255. He also [sought] a certificate [of] appealability [to] appeal the court’s dismissal of
his original motion.” Ohiri, 133 F. App’x at 556 (footnote omitted). One of the claims the
defendant raised in the motion to amend was a claim that “the government committed
Brady violations by failing to disclose exculpatory evidence material to his decision
whether to plead guilty.” Id. (footnote omitted). Relying on the Supreme Court’s
decision in Ruiz, “[t]he district court . . . concluded that Ohiri could not establish a Brady
violation because ‘the government is not required to produce all Brady material when a
defendant pleads guilty.’” Id. at 561.
The Tenth Circuit determined Ruiz was distinguishable and concluded “that the
district court abused its discretion when it refused to allow amendment of Ohiri’s § 2255
motion to allege a Brady or due process violation.” Id. at 562. In particular, the Tenth
Circuit distinguished Ruiz because the evidence allegedly withheld from Ohiri was
exculpatory and not merely impeachment evidence and because, unlike the defendant
11

in Ruiz who had entered a plea agreement prior to indictment, Ohiri had executed a
plea agreement the day before jury selection was to begin, a point in the proceedings by
which “the government should have disclosed all known exculpatory information.” Id.
Although not discussed by the parties, the Court notes that the Seventh Circuit, in a
case cited by the Tenth Circuit in Ohiri, opined that dicta in Ruiz “strongly suggests” a
due process violation would exist if the prosecution withheld exculpatory evidence, and
not merely impeachment evidence, prior to entry of a guilty plea. See McCann v.
Mangialardi, 337 F.3d 782, 787-88 (7th Cir. 2003).
Mr. Ankeney’s reliance on the Tenth Circuit’s decision in Ohiri is misplaced
because the Tenth Circuit’s decision in Ohiri is not a Supreme Court holding and does
not constitute clearly established federal law. See House, 527 F.3d at 1016. For the
same reason, the Seventh Circuit’s decision in McCann also does not constitute clearly
established federal law. See id. Finally, the dicta in Ruiz that arguably supports Mr.
Ankeney’s claim also is not clearly established federal law because Supreme Court
dicta does not constitute clearly established federal law. See Williams, 529 U.S. at 412.
As a result, the Court finds that Mr. Ankeney fails to demonstrate the existence of any
clearly established federal law to support his argument that Brady applies when a
criminal defendant enters a guilty plea. Because the absence of any clearly established
federal law ends the Court’s inquiry under § 2254(d)(1), see House, 527 F.3d at 1018,
the Court finds that Mr. Ankeney is not entitled to relief on the Brady claim.
Despite the absence of clearly established federal law, the Tenth Circuit has
indicated that “an unreasonable application may occur if the state court . . .
unreasonably refuses to extend[] a legal principle from Supreme Court precedent to a
12

new context where it should apply.” House, 527 F.3d at 1018; see also Carey v.
Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment) (stating that
“AEDPA does not require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied.”). Therefore, the Court briefly
considers whether it would be an unreasonable application of Brady to decline to extend
its holding to the guilty plea context. Because a trial and a guilty plea are not nearly
identical factual patterns and the differences between them are materially
distinguishable, the Court concludes that it is not an unreasonable application of Brady
to decline to extend its holding to the guilty plea context. See Richter, 131 S. Ct. at 786
(quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009), for the proposition that “‘[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.’”); see also House, 527 F.3d at 1019 n.7 (discussing boundaries
between the “application of legal principle” and the “extension of legal principle”
components of the unreasonable application prong of § 2254(d)(1)).
B. Claim 3
The Court next will address Mr. Ankeney’s third claim in which he challenges the
validity of his sentence. Mr. Ankeney alleges in support of his third claim that he:
originally agreed to waive a factual basis for his guilty plea,
which required that there be “serious bodily injury” in order
for the charge to amount to a class IV felony and in order for
the court to legally impose an eight-year prison term.
However, the prosecutor changed the agreement at the last
minute by asking the court to impose a fact stipulation of
sexual assault on a child, pursuant to C.R.S. 18-3-405
(2008). That factual basis did not include the “serious bodily
injury” element. Instead, the fact stipulation requires
13

Ankeney to register as a sex offender, among other negative
statutory consequences. See, C.R.S. 16-22-103(2)(e)(I)(C).
Under Colorado’s statutory scheme and the U.S.
Constitution, the fact stipulation limits the charge of Child
Abuse to a class I misdemeanor, with a maximum penalty of
two years jail time if the fact stipulation does not include the
element of “serious bodily injury.” See, C.R.S. 18-6-401
(2008).
(ECF No. 1 at 71-72, ¶413.)
Although Mr. Ankeney does not identify the clearly established federal law
pursuant to which claim 3 is being asserted, the Court construes claim 3 as raising a
claim under Apprendi v. New Jersey, 530 U.S. 466 (2000), which is how the claim was
raised and exhausted in the state courts. (See ECF No. 11-6 at 27, 31.) The Supreme
Court held in Apprendi that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490. The Supreme Court subsequently clarified “that the ‘statutory maximum’ for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of
the facts reflected in the jury verdict or admitted by the defendant.” Blakely v.
Washington, 542 U.S. 296, 303 (2004).
The Colorado Court of Appeals addressed Mr. Ankeney’s Apprendi claim as
follows:
Defendant contends that his sentence is illegal under
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because
the crime of violence count was not submitted and proven to
a jury beyond a reasonable doubt. We disagree.
Defendant pled guilty to felony child abuse under
section 18-6-401(1)(a), (7)(a)(IV), C.R.S. 2011 (negligent
child abuse resulting in serious bodily injury), a class 4
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felony. The presumptive range for a class 4 felony is two to
six years in prison. See § 18-1.3-401(1)(a)(V)(A), C.R.S.
2011. However, child abuse as defined in section 18-6-401,
C.R.S. 2011, is an extraordinary risk crime. § 18-1.3401(10)(b)(X), C.R.S. 2011. The maximum presumptive
sentence range for class 4 felonies that are extraordinary
risk crimes is increased by two years. § 18-1.3-401(10)(a),
C.R.S. 2011. Thus, the maximum presumptive sentence for
a class 4 felony child abuse conviction is eight years.
Accordingly, Apprendi does not apply. See People v.
Aguilar-Ramos, 224 P.3d 402, 405 (Colo. App. 2009)
(Apprendi only applies when an offender receives a
sentence outside the presumptive range).
Nonetheless, defendant argues that Apprendi applies
because his factual stipulation did not include the serious
bodily injury element of felony child abuse, and his maximum
sentence was therefore limited to two years in jail for
misdemeanor child abuse. Additionally, he maintains that
his waiver only applied to the mens rea of negligently,
whereas sexual assault requires the mens rea of knowingly.
However, by pleading guilty, defendant waived the right to
contest the crime’s factual basis and admitted the elements
beyond a reasonable doubt. See People v. Munkus, 60 P.3d
767, 769 (Colo. App. 2002). Moreover, in concluding that
defendant’s sentence was legal, the district court found,
“Defendant’s assertion that he was not aware until the
providency hearing that a stipulation to the underlying factual
basis of sexual assault was an integral part of the plea
disposition is incredible.” Accordingly, defendant’s sentence
did not violate Apprendi. Id.
(ECF No. 11-9 at 7-8.)
Mr. Ankeney fails to demonstrate that the rejection of his Apprendi claim by the
Colorado Court of Appeals was contrary to or an unreasonable application of clearly
established federal law or was based on an unreasonable determination of the facts in
light of the evidence presented. The plea agreement Mr. Ankeney signed indicates that
he agreed to plead guilty to a class 4 felony child abuse offense (see ECF No. 1 at 106),
and Mr. Ankeney concedes that he is not challenging the validity of his guilty plea (see
15

ECF No. 1 at 76, ¶443). The transcript of Mr. Ankeney’s plea hearing also makes clear
that he entered a guilty plea to a class 4 felony child abuse offense. (See ECF No. 1110 at 5, 9-11.) As a result, Mr. Ankeney cannot reasonably challenge the factual
determination of the Colorado Court of Appeals that he “pled guilty to felony child abuse
under section 18-6-401(1)(a), (7)(a)(IV), C.R.S. 2011 (negligent child abuse resulting in
serious bodily injury), a class 4 felony.” (ECF No. 11-9 at 7.) In any event, Mr. Ankeney
does not present any clear and convincing evidence that would rebut the presumption of
correctness that attaches to that factual determination. See 28 U.S.C. § 2254(e)(1).
Therefore, given that Mr. Ankeney agreed to plead guilty to a class 4 felony child
abuse offense, the Colorado Court of Appeals’ determination that Mr. Ankeney had
admitted all of the elements necessary to impose the stipulated sentence of eight years
in prison under the relevant Colorado statutes was not contrary to or an unreasonable
application of Apprendi. Pursuant to Colo. Rev. Stat. § 18-6-401(7)(a)(IV), negligent
child abuse resulting in serious bodily injury is a class 4 felony. Pursuant to Colo. Rev.
Stat. § 18-1.3-401(10)(b)(X), child abuse as defined in § 18-6-401 is an extraordinary
risk crime and, pursuant to Colo. Rev. Stat. § 18-1.3-401(10)(a), the maximum sentence
in the presumptive range for a class 4 felony that is an extraordinary risk crime shall be
increased by two years. Thus, although the maximum sentence in the presumptive
range for a class 4 felony committed on or after July 1, 1993, ordinarily is six years, see
Colo. Rev. Stat. § 18-1.3-401(1)(a)(V)(A), the presumptive range pursuant to Mr.
Ankeney’s guilty plea to a class 4 felony that is an extraordinary risk crime properly was
increased to eight years.
The fact that Mr. Ankeney’s plea agreement explicitly provides he is pleading
16

guilty to a class 4 felony child abuse offense demonstrates that the decision of the
Colorado Court of Appeals also was not based on an unreasonable determination of the
facts in light of the evidence presented. Mr. Ankeney’s stipulation to a factual basis of
sexual assault on a child does not alter the Court’s conclusion that he agreed to plead
guilty to a class 4 felony child abuse offense which, under the applicable Colorado
statutes, subjected him to a maximum presumptive range sentence of eight years.
For all of these reasons, the Court finds that Mr. Ankeney also is not entitled to
relief on claim 3.
IV. OTHER PENDING MOTIONS
Finally, Mr. Ankeney has filed various motions to require Respondents to admit
or deny his allegations (ECF No. 28), for a hearing (ECF No. 29), to appoint counsel
(ECF No. 30), and for summary judgment (ECF No. 31). Those motions will be denied
as moot because the action will be dismissed. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 and/or 28 U.S.C. § 2241 (ECF No. 1) is denied and this case is
dismissed with prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c). It is further
ORDERED that Applicant’s motions to admit or deny allegations (ECF No. 28),
for a hearing (ECF No. 29), to appoint counsel (ECF No. 30), and for summary
judgment (ECF No. 31) are DENIED as moot.

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DATED September 25, 2012.
BY THE COURT:

s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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