Lucero v. Medina et al
Filing
37
ORDER Denying Application for a Writ of Habeas Corpus. Applicant Anthony J. Lucero's Application For a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1 ) is DENIED and this case is DISMISSED on the merits. No certificate of appealability will issue because Applicant has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional and procedural rulings are correct and whether the Amended Application states a valid claim of the denial of a constitutional right. By Judge Raymond P. Moore on 05/29/13. (alvsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 12-cv-01919-RPM
ANTHONY J. LUCERO,
Applicant,
v.
ANGEL MEDINA, Warden, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.
______________________________________________________________________________
ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
______________________________________________________________________________
This matter is before the Court on Anthony Lucero’s pro se Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction and
sentence imposed in Case No. 86CR653 in the Jefferson County District Court. Remaining for
disposition are claims 1, 2, 6(ii) and 6(iv) asserted in the Application. Respondents have filed an
Amended Answer to those claims and Applicant was afforded an opportunity to file a Reply.
Having considered the Application and the Respondent’s Amended Answer, along with the state
court record, the Court concludes that the Application should be denied.
I. Background
In June 1987, Applicant was convicted by a jury of felony murder, attempted aggravated
robbery, and two counts of crime of violence in Jefferson County District Court Case No.
86CR653. [Doc. # 1, at 2 of 88]. He was sentenced to life in prison.
[Id.]. On direct appeal, the Colorado Court of Appeals vacated the attempted aggravated robbery
conviction and sentence as included within the felony murder conviction and one crime of
violence count, but otherwise affirmed the conviction. See People v. Lucero (Lucero I), No.
91CA1261 (Colo. App. May 16, 1991) (unpublished). [Doc. # 11-15]. Applicant’s request for
certiorari review was denied by the Colorado Supreme Court on May 11, 1992. [Doc. # 11-2].
On remand, Applicant was resentenced to life in prison with the life sentence to run consecutive
to the sentences he already was serving. [State Court R., Court File, Amended Mittimus, dated
10/5/92].
Applicant then filed a motion for post-conviction relief pursuant to Colo. R. Crim.
P. 35(c), which was denied by the state district court on August 6, 2008. [Doc. # 11-1, at 6]. The
Colorado Court of Appeals affirmed the trial court’s order in People v. Lucero (Lucero II), No.
08CA1973 (Colo. App. August 11, 2011) (unpublished). [Doc. # 11-6]. The Colorado Supreme
Court denied Applicant’s petition for certiorari review on June 25, 2012. [Doc. # 11-2].
Applicant initiated this action on July 23, 2012. He asserts the following claims in the
Application:
(1)
(A) The trial court violated his procedural due process rights in failing to hold a
competency hearing sua sponte;
(B) Trial counsel was constitutionally ineffective in failing to adequately
investigate and pursue the competency issue;
(C) The trial court violated his substantive due process rights in
allowing him to be tried even though he was incompetent.
(2)
(A) Trial counsel was constitutionally ineffective in failing to:
(I) impeach or cross-examine witness Valerie Brave about why
she left her children and grandchildren with Applicant if they were
afraid of him; (ii) impeach or cross-examine witness David Brave
about why he spent Applicant’s money without asking if he was
afraid of Applicant; (iii) investigate and present evidence that
witnesses Stands and Brave were regularly paid informants of the
Bureau of Indian Affairs; (iv) make a record of witness Donald
LeBlanc’s identification of Applicant’s co-defendant outside the
jury’s presence; (iv) impeach Mr. LeBlanc about his prior
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inconsistent statements; (v) investigate and cross-examine on
specific issues concerning Applicant and the co-defendant; (vi)
force the disclosure of confidential informants; and, (vii) the
cumulative omissions of trial counsel prejudiced Applicant at trial.
(B) Appellate counsel was constitutionally ineffective in failing to properly raise
the severance claim.
(3)
The trial court violated Applicant’s due rights in denying his request for
severance.
(4)
Cumulative errors deprived Applicant of his due process right to a fair
trial.
(5)
The trial court’s denial of Applicant’s challenges for cause to potential
jurors violated his right to a fair trial.
(6)
The trial court violated Applicant’s constitutional rights by failing to
disqualify or at least sanction the district attorneys based on the following
prosecutorial misconduct:
(I) The prosecution failed to provide the defense with codefendant’s statements to law enforcement officers;
(ii) An eye-witness statement was lost or destroyed;
(iii) Ex parte hearings were held in spite of Applicant’s objection;
and
(iv) The Prosecution called Applicant and co-defendant “chilieating bastards.”
(7)
Codefendant’s new affidavit supports Applicant’s innocence.
[Doc. # 1, at 7-25].
Upon preliminary review of the Application, Magistrate Judge Boyd N. Boland ordered
the Respondents to file a pre-answer response addressing the affirmative defenses of timeliness
and exhaustion of state remedies. Respondents conceded that the Application was timely under
the one-year limitation period set forth in 28 U.S.C.
3
§ 2244(d)(1). [Doc. # 11, at 4-6]. Respondents further conceded that Applicant exhausted state
court remedies for claims one and two asserted in the Application. Respondents argued that the
remaining claims were procedurally defaulted or not cognizable on federal habeas corpus. [Id. at
17-51]. In a previous Order, District Judge Philip A. Brimmer dismissed claims three, six (I) and
(iii), and the severance portion of claim four, as procedurally barred. [Doc. # 19, at 19]. Claims
five and seven were dismissed for failure to state a cognizable habeas claim. [Id.].
The Court reviews the merits of claims one, two, four (except for severance error), six (ii)
and (iv) below.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with
respect to any claim that was adjudicated on the merits in state court unless the state court
adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The applicant 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
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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 Applicant’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 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 Richter presumption is also applicable when a state-court opinion addresses some
but not all of those claims. Johnson v. Williams, 133 S. Ct. 1088, 1094-98 (2013). For purposes
of § 2254(d), when a state court rules against a defendant in an opinion that rejects some of the
defendant’s claims but does not expressly address a federal claim, a federal habeas court must
presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Id. at 1094-96.
Federal habeas courts should not assume that any unaddressed federal claim simply was
overlooked because a state court does not uniformly discuss separately every claim referenced
by a defendant. Id.
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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 the court must answer under § 2254(d)(1) is whether Mr. Pena 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 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
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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. 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.
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. Moreover, “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
7
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 federal 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 the petitioner bears the burden of rebutting the
presumption by clear and convincing evidence. “The standard is demanding but not insatiable . .
. [because] ‘[d]eference does not by definition preclude relief.’” Miller–El v. Dretke, 545 U.S.
231, 240 (2005) (quoting Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).
B. PRO SE LITIGANT
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.”
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
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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). The applicant's pro se status does not
entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th
Cir. 2002).
III. LEGAL ANALYSIS
A. Competency to Stand Trial
In claim one, Applicant challenges his competency to stand trial. He asserts that the trial
court violated: (a) his procedural due process rights in failing to hold a competency hearing sua
sponte; and (b) his substantive due process rights in allowing him to be tried even though he was
incompetent.1 [Doc. # 1, at 7-14].
1. Relevant facts
The following facts are relevant to Applicant’s first claim for relief.
Four months after Applicant was arraigned and entered a plea of not guilty, the state trial
court granted defense counsel’s motion to appoint a psychiatrist to evaluate Applicant’s
competency for the purpose of determining whether to change his plea to not guilty by reason of
insanity. [State Court R., Court File, at 450-51; 3/13/87 Hrg. Tr. at 19; see also Lucero I, Doc. #
11-15, at 6; Lucero II, # 11-6, at 8]. Defense counsel hired Dr. Dean Plazak, who conducted an
evaluation and diagnosed Applicant as suffering from an acute, chronic “schizophrenic disorder,
paranoid type.” [Lucero II, Doc. # 11-6, at 8; see also Doc. # 1, at 31-37 (copy of Dr. Plazak’s
1
Applicant also asserts an ineffective assistance of counsel claim as part of claim one. The Court
addresses that allegation in claim two, together with his other allegations of ineffective assistance of
counsel.
9
April 23, 1987 report (restating paragraph from earlier report))]. Nonetheless, Dr. Plazak
concluded:
[Applicant] does appear to understand the nature and course of the proceedings
against him, although he does strongly insist on incorporating those events as part
of the conspiracy he believes exists against him, is aware of the seriousness of the
charges and the potential penalties if convicted, and has demonstrated, according
to his counsel, that he is capable of participating, assisting and cooperating with
his defense counsel. Thus this examiner is of the opinion that [Applicant] meets
the statutory criteria for competency to proceed.
[Lucero II, Doc. # 11-6, at 9; see also Doc. # 1, at 31-37]. The trial court reviewed Dr. Plazak’s
report and concluded that it “did not purport to opine that Applicant is or was insane.” [State
Court R., 4/10/87 Hrg. Tr., at 4]. The trial court further found that in the early stages of the case,
defense counsel filed a request that Applicant be permitted to participate as co-counsel, which is
“totally inconsistent with him being insane.” [Id.; see also Lucero II, Doc. # 11-6, at 6]. In
addition, the trial court observed that Applicant’s conduct before the court had been “reasonable
and disciplined.” [Id.].
Just before jury selection began, defense counsel told the trial court that Applicant was
having auditory and visual hallucinations. [State Court R., 4/28/87 Hrg. Tr., at 86]. Counsel for
co-defendant then requested that Applicant be subject to a mental competency examination,
raising the issue of whether the Applicant was “of an infirm mind, and therefore, [whether] he
presents a danger to my client during the proceedings here.” [Id. at 87-88; see also Lucero II,
Doc. # 11-6, at 7]. After noting that Applicant’s own counsel had not requested a competency
exam, the trial court concluded Applicant’s competency was not “an issue” and that the security
in the courtroom was adequate to handle any eventuality. [State Court R., 4/28/87 Hrg. Tr., at 88;
see also Lucero II, Doc. # 11-6, at 9].
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2. Controlling federal law
A criminal defendant has a federal due process right not to be tried while mentally
incompetent. Drope v. Missouri, 420 U.S. 162, 172 (1975). A defendant is competent to stand
trial if he has (1) “a rational as well as factual understanding of the proceedings against him,”
and (2) “sufficient present ability to consult with his lawyer with a reasonable degree of
understanding.” Dusky v. United States, 362 U.S. 402 (1960) (per curiam).
“[T]he failure to observe procedures adequate to protect a defendant's right not to be tried
or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”
Drope, 420 U.S. at 172 (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). Although the
Supreme Court has not “prescribe[d] a general standard with respect to the nature or quantum of
evidence necessary to require resort to an adequate procedure,” id., it has held that a hearing is
required where the evidence before the trial judge raises a “bona fide doubt” as to a defendant's
competence. Pate, 383 U.S. at 385 (“Where the evidence raises a ‘bona fide doubt’ as to a
defendant's competence to stand trial, the judge on his own motion must impanel a jury and
conduct a sanity hearing pursuant to [the Illinois competency statute at issue].”). See also Porter
v. McKaskle, 466 U.S. 984, 985–86 (1984) (Marshall, J., dissenting) (“It is settled that, if
evidence available to a trial judge raises a bona fide doubt regarding a defendant's ability to
understand and participate in the proceedings against him, the judge has an obligation to order an
examination to assess his competency, even if the defendant does not request such an exam.”)
(citing Drope and Pate); Drope, 420 U.S. at 172–73 (stating that the Pate Court “noted that
under the Illinois statute a hearing was required where the evidence raised a ‘bona fide doubt’ as
to a defendant's competence.
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Evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior
medical opinion on competence to stand trial, as well as defense counsel’s assessment, are all
relevant in determining whether further inquiry is required under Pate. See Drope, 420 U.S. at
180; Medina v. California, 505 U.S. 437, 450 (1992).
A substantive competency claim is based on the allegation that an individual was tried
and convicted while incompetent. Drope, 420 U.S. at 171; Bishop v. United States, 350 U.S. 961
(1956).
3. Procedural due process
Applicant asserts that his procedural due process rights were violated when the state trial
court failed to hold a competency hearing sua sponte.
At the time of Applicant’s trial, COLO. REV. STAT. (“C.R.S.”) § 16-8-111 (1987) set
forth the procedure for determining incompetency and provided, in relevant part:
(1) Whenever the question of a defendant’s competency to proceed is raised, the
court shall make a preliminary finding either that the defendant is competent to
proceed or that he is not.
....
(2) The court shall immediately notify the prosecuting attorney and defense
counsel of the preliminary finding. If neither the prosecuting attorney nor defense
counsel requests, in writing, a hearing within a time limit set by the court, the
preliminary finding becomes a final determination.
The Colorado Court of Appeals determined that the trial court’s finding at the time of
jury selection that Applicant’s competency was not “an issue” and its denial of Applicant’s
motion to continue the trial constituted the requisite finding of competency. [Lucero II, Doc. #
11-6, at 10]. The state appellate court further ruled that “[a]bsent any objection to the court’s
12
finding, no further proceeding was required before the court’s preliminary finding became a final
determination of competency.” [Id.].
The state appellate court’s decision that no evidentiary hearing was required on the issue
of Applicant’s competency comports with Supreme Court law because there was no evidence
before the trial judge that raised a “bona fide doubt” as to a Applicant’s competence. Pate, 383
U.S. at 385. The state courts’ factual findings concerning Applicant’s competence to stand trial
are presumed correct in this federal habeas proceeding. Bryson v. Ward, 187 F.3d 1193, 1201
(10th Cir. 1999) (state court’s finding on the issue of a criminal defendant’s competency to stand
trial is a factual finding that is presumed correct under 28 U.S.C. § 2254(e)(1)). Those findings
are supported by the state court record and have not been rebutted by the Applicant with any
clear and convincing evidence. Importantly, Dr. Plazak’s report did not opine that Applicant
was incompetent to stand trial. In addition, the state trial court found that Applicant’s demeanor
in the pretrial proceedings was inconsistent with mental incompetency. Moreover, as the state
appellate court found in the context of addressing Applicant’s ineffective assistance of counsel
claim, the observations of counsel concerning Applicant’s mental condition were consistent with
Dr. Plazak’s diagnosis, but not inconsistent with the conclusion that Applicant was competent.
(Lucero II, Doc. # 11-6, at 14). See Miles v. Dorsey, 61 F.3d 1459, 1472 (10th Cir. 1995) (“The
presence of some degree of mental disorder in the defendant does not necessarily mean that he is
incompetent . . . .”). And, finally, after the trial court ruled approximately one month before trial
that Applicant was competent and denied his request to continue the trial so that Dr. Plazak
could further evaluate him [see State Court R., 4/11/87 Hrg. Tr.], defense counsel did not
continue to litigate the issue of Applicant’s competence. See Mitchell v. Gibson, 262 F.3d 1036,
13
1048 (10th Cir. 2001) (“ . . . a doubt sufficient to require an expert evaluation may be overcome
by the results of the evaluation itself, especially when considered together with other indications
of competency”).
The Court is not aware of any Supreme Court precedent that would suggest the state trial
court violated Applicant’s Fourteenth Amendment procedural due process rights, and Applicant
has not identified any such precedent. Instead, the state appellate court reasonably determined
that the trial court did not err in failing to provide Applicant a competency hearing. See Bryson,
187 F.3d at 1201-02 (recognizing that the trial court may rely on its own observations of a
defendant’s comportment and that the concerns of counsel, without more, are insufficient to
establish doubt of a defendant’s incompetency) (citing Drope); see also Clayton v. Gibson, 199
F.3d 1162, 1171 (10th Cir. 1999) (suggesting that a prior medical opinion concerning the
defendant’s competency is the most important factor in the procedural due process analysis).
Accordingly, Applicant cannot prevail on his procedural due process claim.
4. Substantive due process
Applicant next contends that his substantive due process rights were violated because he
was tried while incompetent.
Because Applicant has not pointed to any evidence in the record that would have required
a Pate hearing at or before trial, he has also failed to satisfy the more demanding standard for a
substantive due process claim. See Allen v. Mullin, 368 F.3d 1220, 1240 (10th Cir. 2004);
Walker v. Attorney Gen. for State of Oklahoma, 167 F.3d 1339, 1347 (10th Cir. 1999).
Applicant seeks to rely on the following evidence, which was not before the state trial
court, to prove his incompetency:
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•
•
•
•
•
Hospital records from 1989 pertaining to treatment [Applicant] received
more than two years after trial that confirmed Dr. Plazak’s diagnosis;
A retained expert’s August 1, 2005, report that he “did not see evidence of
a comprehensive competency assessment” in Dr. Plazak’s evaluation, and
that the basis for Dr. Plazak’s conclusions were “unclear and there was no
documented evidence about how he reached his final clinical opinions”;
A motion filed more than one year after trial to hold in abeyance the
appeal of another case in which [Applicant] was involved, due to his
alleged incompetency;
A 2008 affidavit from attorney David Lane, who filed the motion to hold
in abeyance, stating that he believed [Applicant] “was mentally ill and
incompetent to assist in his appeal”; and
a 1995 affidavit signed by co-defendant Borrego, averring that, at the time
of trial, he “believed [Applicant] was suffering from paranoid delusions.”
[Doc. # 1, at 13].
The Colorado Court of Appeals determined that the motion to hold in abeyance was not
material to the issue of Applicant’s incompetency because it did “not illuminate [Applicant’s]
mental condition at the time of trial.” [Lucero II, Doc. # 11-6, at 20]. The state appellate court
further decided that the post-trial statements and affidavits concerning Applicant’s mental
condition did not contradict Dr. Plazak’s finding of competency. [Id. at 21].
With regard to Applicant’s 1989 hospital records and the retained expert’s report, those
documents did not exist at the time of trial. [Id.]. The Colorado Court of Appeals, citing Nguyen
v. Reynolds, 131 F.3d 1340 (10th Cir. 1997), determined that the new evidence failed to
“positively, unequivocally and clearly generate a real, substantial and legitimate doubt
concerning [Applicant’s] mental capacity.” Id. at 1346. The state appellate court found that
while the 1989 hospital records corroborated Dr. Plazak’s diagnosis, they did not directly
address Applicant’s competency at the time he was tried. [Lucero II, Doc. # 11-6, at 22-23].
The state appellate court further found that the retained expert’s report challenged the validity of
Dr. Plazak’s methodology, but did not address competency. [Id. at 23]. The Colorado Court of
15
Appeals concluded that even if the trial court had received the retained expert’s report, there was
no reasonable probability that the court would have reached a different conclusion about
Applicant’s competency, in light of the trial court’s own observations of Applicant’s “reasonable
and disciplined” demeanor. [Id.]. The state appellate court concluded that Applicant “was not
tried while incompetent.” [Id. at 24].
The Court finds that the Colorado Court of Appeals’ determination was a reasonable
application of Pate and Dusky. None of the evidence relied on by Applicant demonstrates that,
at the time of trial, he lacked either sufficient ability to consult with his lawyer with a reasonable
degree of rational understanding or a rational and factual understanding of the proceeding. Postconviction counsel’s assessment of Applicant’s competency one year after trial is insufficient to
undermine Dr. Plazak’s evaluation of Applicant, which was supported by the trial court’s
observations of Applicant’s mental capacity. See Allen, 368 at 1240 (defense counsel’s
declaration of defendant’s incompetency ten years after trial was insufficient to overcome
contrary opinions at time of trial). Furthermore, although the 1989 hospital records and 2005
expert report raise questions concerning Defendant’s mental capacity, nothing in those
documents clearly and unequivocally contradicted Dr. Plazak’s opinion that Applicant was
competent to stand trial or otherwise demonstrated Applicant’s incompetency. Id.; see also
Foster v. Ward, 182 F.3d 1177, 1191 (10th Cir. 1999) (in light of psychiatric finding of
competency prior to trial and of defendant’s conduct and demeanor at trial, including his own
testimony, doctor’s opinion ten years later that defendant was incompetent was inadequate to
demonstrate a substantive due process violation).
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In sum, Applicant is not entitled to federal habeas relief for his first claim.
B. Ineffective Assistance of Trial Counsel
For his second claim, Applicant asserts that: (A) his trial counsel was constitutionally
ineffective in failing to: (I) adequately investigate and pursue the competency issue;2 (ii)
impeach or cross-examine witness Valerie Brave about why she left her children and
grandchildren with Applicant if they were afraid of him; (iii) impeach or cross-examine witness
David Brave about why he spent Applicant’s money without asking if he was afraid of
Applicant; (iv) investigate and present evidence that witnesses Stands and Brave were regularly
paid informants of the Bureau of Indian Affairs; (v) make a record of witness Donald LeBlanc’s
identification of Applicant’s co-defendant outside the jury’s presence; (v) impeach Mr. LeBlanc
about his prior inconsistent statements; (vi) investigate and cross-examine on specific issues
concerning Applicant and the co-defendant; (vii) force the disclosure of confidential informants;
and, (vii) that the cumulative omissions of trial counsel prejudiced Applicant at trial. [Doc. # 1,
at 14-16]. He further claims that his counsel on direct appeal was constitutionally ineffective in
failed to adequately argue error in the denial of severance from co-defendant Borrego. [Id. at
16].
To prevail on his claims that trial counsel was constitutionally ineffective, Applicant
must show that: (1) counsel's legal representation fell below an objective standard of
reasonableness; and (2) “the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of counsel’s performance is highly
deferential. Id. at 689. Counsel’s decisions are presumed to represent “sound trial strategy;”
2
Applicant raised this allegation as part of his first claim for relief, but it is more appropriately
discussed as part of his second claim.
17
“[f]or counsel’s performance to be constitutionally ineffective, it must have been completely
unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal
quotations omitted). Under the AEDPA standard of review, “the question is not whether
counsel's actions were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard.” Richter, 131 S.Ct. at 788.
Prejudice exists when there is a reasonable probability that, but for counsel’s defective
representation, the result of the proceeding would have been different. Strickland, 466 U.S. at
693. The likelihood of a different result must be substantial, not just conceivable. Id. The Court
need not address both prongs of the Strickland inquiry if Applicant’s claim fails on one. Id. at
697.
1. Failure to adequately investigate and pursue the competency issue
Applicant asserts that his trial counsel’s failure to adequately investigate and pursue the
competency issue constituted deficient performance.
The Colorado Court of Appeals disagreed, based on the following reasoning:
Here, the record shows that trial counsel provided effective assistance by
raising defendant’s mental condition with the trial court, seeking funds for a
psychiatric evaluation, and hiring Dr. Plazak. Nevertheless, [Applicant] asserts
that “Dr. Plazak’s report made it clear that [Applicant] suffered from a mental
disease or defect, and yet trial counsel did not request additional psychological or
psychiatric evaluations on the issue of competency.” But in light of Dr. Plazak’s
finding that [Applicant] was competent, [Applicant] fails to explain why his
counsel should have looked for additional information suggesting his
incompetency, nor can we discern any such reason.
Further, even if counsel should have raised the competency issue with the
court after Dr. Plazak’s evaluation, failure to do so could not have harmed
[Applicant]. [Co-defense counsel] Wymore requested that the court order a
competency evaluation. The record affords no basis for assuming a different
ruling had [Applicant’s] counsel joined in this request.
18
[Applicant] cites the following “additional evidence” that he claims shows
counsel’s ineffectiveness because it was “available at the time to establish
[Applicant’s] incompetency,” but was never presented to the trial court:
•
•
•
•
•
a 1995 affidavit signed by [co-defendant] Borrego, averring
that, at the time of trial, he “believed [Applicant] was
suffering from paranoid delusions”;
a 1995 affidavit from Ruben Muniz, an acquaintance of
[Applicant’s] for many years, that stated: “between 1984
and 1986, I observed Anthony Lucero only occasionally
but often enough to know that Anthony’s mental and
emotional condition was deteriorating,” and that “when I
discovered that Anthony Lucero was arrested and charged
for an alleged bank robbery and murder, it was my belief
that if he had in fact been involved that it was solely the
result of his mental illness”;
a 1996 notarized statement from Carl Smith, who was
incarcerated with [Applicant] immediately before
[Applicant’s] trial, that noted [Applicant’s] conversations
were sometimes “wandering and disjointed” but at other
times “lucid and flowing with his thoughts”;
an investigator’s report from a 1996 interview with
[Applicant’s] mother, and a similar report from a 2001
interview with her, that [Applicant] was mentally ill and
acting strangely at the time of trial; and
an unsubstantiated assertion that Wymore believed
[Applicant] was “likely not competent” at the time of trial.
The existence of such information does not establish ineffectiveness
because trial counsel had no reason to solicit lay opinions to counter Dr. Plazak’s
competency findings, which were based, in part, on interviews with several
people close to [Applicant], including his mother.
Moreover, with the exception of Wymore who, as an experienced criminal
defense lawyer, presumably understood legal competency, none of the other
potential witnesses would have been qualified to opine on the statutory standard.
As discussed further below, a mental disease or defect is not, by itself, sufficient
to establish incompetency. [State case law citation omitted]. And Wymore’s
purported opinion was at least implicit in his request to have [Applicant]
evaluated. Thus, even if trial counsel should have found and could have
presented this evidence, [Applicant] has not shown prejudice because these
descriptions of his mental condition are consistent with Dr. Plazak’s diagnosis but
not inconsistent with the conclusion that [Applicant] was incompetent.
19
Accordingly, we conclude that counsel’s assistance was not ineffective.
Thus, we necessarily reject [Applicant’s] further assertion that defense counsel
was so ineffective as to have constructively denied him his Sixth Amendment
right to counsel.
[Lucero II, Doc. # 11-6, at 11-15].
Under Strickland, “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 690-91. A
particular decision not to investigate must be assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments. Id. Here, the
state appellate court’s conclusion that defense counsel made a reasonable decision not to further
investigate Applicant’s competency after receiving a report from Dr. Plazak that Applicant was
competent comported with Strickland. See Rompilla v. Beard, 545 U.S. 374, 382-83 (2005)
(“the duty to investigate does not force defense lawyers to scour the globe on the off-chance
something will turn up; reasonably diligent counsel may draw a line when they have good reason
to think further investigation will be a waste”); Bell v. Thompson, 545 U.S. 794, 810 (2005)
(suggesting that initial expert evaluations that petitioner did not suffer from a mental disorder
would provide an adequate basis for the petitioner’s trial attorneys to conclude that focusing on
petitioner’s mental health “was not the best strategy”); Jermyn v. Horn, 266 F.3d 257, 301-02
(3rd Cir. 2001) (“counsel did not sit idly by” while failing to recognize that defendant might be
incompetent; on the contrary, he obtained a competency evaluation, and the court presumed that
counsel’s election against seeking another court-ordered evaluation or a competency hearing was
based on the earlier evaluation and a strategic decision that no further inquiry was necessary.)
Furthermore, the state appellate court reasonably concluded that Applicant was not
prejudiced by defense counsel’s failure to conduct any additional investigation because the
20
information proffered by Applicant did not tend to refute Dr. Plazak’s finding of competency. A
criminal defendant who suffers from a mental disability is not necessarily incompetent. Miles,
61 F.3d at 1472; Locust v. Parker, No. 10-5121, 413 F. App’x 51, 56 (10th Cir. Feb. 15, 2011)
(unpublished). Because nothing in the state court record demonstrates that, at the time of trial,
Applicant lacked a “rational [and] factual understanding of the proceedings against him” or a
“sufficient present ability to consult with his lawyer with a reasonable degree of understanding,”
see Dusky, 362 U.S. at 402, there is no reasonably probability that the outcome of Applicant’s
trial would have been different absent counsel’s alleged defective performance.
The Court finds that the Colorado Court of Appeals’ determination of Applicant’s claim
was a reasonable application of Strickland. Applicant is not entitled to federal habeas relief for
claim 2(I).
2. Failure to impeach or cross-examine Valerie Brave
Next, Applicant claims that his trial counsel was ineffective in failing to impeach or
cross-examine witness Valerie Brave about why she left her children and grandchildren with
Applicant if they were afraid of him. [Doc. # 1, at 14-15].
The Colorado Court of Appeals determined that this contention failed to establish
inadequate representation by defense counsel for the following reason:
Defense counsel thoroughly cross-examined Valerie Brave. Thus, [Applicant]
fails to explain why counsel was required to impeach her with a further question
about why she had left [Applicant] with her children, if she supposedly feared
him. [State case law citation omitted].
(Lucero II, Doc. # 11-6, at 27).
The state appellate court’s factual finding that defense counsel conducted a thorough
cross-examination of Valerie Brave is supported by the state court record and has not been
21
rebutted by the Applicant. (See State Court R. 5/22/87 Trial Tr., at 195-205). The Colorado
Court of Appeals reasonably concluded that defense counsel’s failure to ask the witness a single
question about why she left Applicant with her children and grandchildren was the result of
reasonable trial strategy. Applicant makes no reasonable argument that counsel failed to satisfy
Strickland's deferential standard. Richter, 131 S.Ct. at 788.
Furthermore, Applicant fails to show a reasonable probability that he would have been
acquitted, had counsel asked this additional question. Applicant’s speculation that the outcome
of his trial might have been different does not satisfy Strickland. See Strickland, 466 U.S. at 693
(the likelihood of a different result must be substantial, not just conceivable); United States v.
Boone, 62 F.3d 323, 327 (10th Cir.1995).
Accordingly, Applicant cannot prevail on claim 2(ii).
3. Failure to cross-examine or impeach David Brave
Applicant next challenges trial counsel’s failure to impeach or cross-examine David
Brave about why he spent Applicant’s money without asking if he was afraid of Applicant. [Doc.
# 1, at 15]. The state appellate court resolved this claim as follows:
[Applicant’s] assertion that counsel was ineffective by not cross-examining David
Brave about why he spent [Applicant’s] money without asking, which he argues
contradicts Brave’s testimony that he was afraid of [Applicant], is factually
incorrect. On direct examination, Brave said [Applicant] had given him this
money.
[Lucero II, Doc. # 11-6, at 29].
Brave testified on direct examination that Applicant gave him $300 to buy an automatic
weapon for Applicant, but Brave spent some of the money on alcohol and returned the rest to
Applicant the following day. [State Court R., 5/22/87 Trial Tr., at 225-26]. The Colorado Court
22
of Appeals’ determination of Applicant’s claim did not run afoul of Strickland because the
record shows that counsel’s cross-examination of David Brave was based on reasonable trial
strategy. See Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (decisions at trial only reach
the level of constitutional ineffectiveness if they are “completely unreasonable, not merely
wrong, so that [they] bear no relationship to a possible defense strategy” (quotation omitted));
see also Richter, 131 S.Ct. at 788.
Moreover, Applicant has not shown a reasonable probability that the outcome of his trial
would have been an acquittal if defense counsel had questioned Brave further about this matter
on cross-examination. See Strickland, 466 U.S. at 693. As such, Applicant cannot prevail on
claim 2(iii) of the Application.
4. Failure to show that witnesses were regularly paid informants
Applicant next challenges counsel’s failure to adequately investigate and present
evidence that two trial witnesses (Stands and Brave) were regularly paid informants of the
Bureau of Indian Affairs, which would have rebutted the evidence that the only money these
witnesses received was from Crimestoppers. [Doc. # 1, at 15].
The state appellate court rejected this claim because Applicant failed to cite any evidence
in the record to support it, and did not “even assert that they were paid by the police agency in
this case.” [Lucero II, Doc. # 11-6, at 28].
Again, the state court’s factual findings are presumed correct and are unrebutted by
Applicant. Allegations based on unsubstantiated assertions of fact are not sufficient to satisfy
Strickland. See Cummings v. Sirmons, 506 F.3d 1211, 1228-29, 31-32 (10th Cir. 2007); see also
Johnson v. Alabama, 256 F.3d 1156, 1186 (11th Cir. 2001) (no deficient performance where
23
applicant failed to identify “real impeachment evidence was available and could have been, but
was not, pursued at trial”). Accordingly, the Court finds that the Colorado Court of Appeals
reasonably resolved Applicant’s claim under the Strickland standard. Claim 2(iv) will be
dismissed.
5. Failure to show that LeBlanc could not identify Applicant outside the
jury’s presence
Applicant asserts that trial counsel was ineffective in failing to introduce evidence that in
a hearing outside the jury’s presence, witness Donald LeBlanc identified the co-defendant, but
not Applicant. [Doc. # 1, at 15; see also State Court R. 5/21/87 Trial Tr., at 119-121].
The Colorado Court of Appeals rejected this claim on the ground that counsel requested
that the jury be informed of LeBlanc’s inability to identify Applicant at trial, but the trial court
refused. [Doc. # 11-6, at 29].
The state appellate court’s resolution of Applicant’s claim was consistent with the
Strickland standard. See, e.g., Parker v. Scott, 394 F.3d 1302, 1323 (10th Cir. 2005) (rejecting
ineffective assistance of counsel claim challenging counsel’s failure to offer evidence that was
probably inadmissible and inconsistent with trial strategy); United States v. Ambort, No. 084004, 282 F. App’x 714, 717 (10th Cir. June 24, 2008) (unpublished) (counsel’s failure to pursue
evidence that is inadmissible is not deficient performance); accord Jenner v. Class, 79 F.3d 736,
740 (8th Cir. 1996) (given state supreme court’s ruling that applicant was not entitled to an
accomplice instruction under state law, there was no basis for concluding that defense counsel
was deficient in not proposing instruction).
Moreover, because Applicant was being tried with co-defendant Borrego for the
shooting, the fact that a witness could identify Borrego does not demonstrate a reasonable
24
probability that the jury would have acquitted the Applicant, had they been informed of the
identification. Applicant thus cannot prevail on claim 2(v).
6. Failure to impeach LeBlanc with his prior inconsistent statements
Applicant argues that trial counsel’s failure to impeach LeBlanc about his prior
inconsistent statements to a police officer constituted deficient performance. [Doc. # 1, at 15].
The state appellate court rejected this claim on the following grounds:
The potential discrepancies in Donald LeBlanc’s testimony–e.g., his description
of [Applicant] as both “scruffy” and having “a flat top,” his approximation of the
time of day when he saw [Applicant] near his apartment building, and precisely
where [Applicant’s] upper arm or shoulder was tattooed–are inconsequential in
light of defense counsel’s otherwise thorough cross-examination of him. [State
case law citation omitted]. Further, [Applicant’s] assertion that his photograph
had not appeared in the newspaper before the time LeBlanc claimed to have seen
it does not contradict LeBlanc’s testimony. On direct examination, LeBlanc did
not specify when he had first seen the photograph.
[Lucero II, Doc. # 11-6, at 29].
The state appellate court’s factual finding that defense counsel conducted a thorough
cross-examination of LeBlanc is supported by the state court record and has not been rebutted by
Applicant. [See State Court R. 5/21/87 Trial Tr. at 113, 125-138]. Again, the manner in which
counsel cross-examines a particular witness is a strategic choice and therefore “virtually
unchallengeable.” Strickland, 466 U.S. at 690; see Cannon v. Mullin, 383 F.3d 1152, 1163-64
(10th Cir. 2004) (holding that counsel's failure to impeach a witness with inconsistent grand jury
testimony did not rise to a Sixth Amendment violation). Reasonable jurists could not find
counsel's cross-examination was objectively unreasonable so as to violate the Sixth Amendment,
or that the Colorado Court of Appeals misapplied Strickland in analyzing this claim. The Court
thus finds that Applicant is not entitled to habeas relief for claim 2(vi).
25
7. Failure to cross-examine and investigate on the specific issues
concerning Applicant and the co-defendant
Applicant asserts in claim 2(vii) that:
Trial Counsel also failed to adequately cross-examine and investigate on the
issues of suspect #1 and suspect # 2, including the size of the individuals, the size
of [the victim], and the types of guns possessed. It was never made clear that the
shorter of the two individuals was the one with the .45 gun. Yet it was the .25
that was found in [co-defendant] Borrego’s apartment. Further, the [Applicant] is
obviously much taller than Borrego.
[Doc. # 1, at 16].
Police who responded to the scene of the shooting recovered two expended .25 caliber
cartridge casings and an expended .45 caliber cartridge casing. [State Court. R., 5/18/87 Trial
Tr., at 12]. The pathologist testified that the victim suffered small and large caliber bullet
wounds, and that the large caliber bullet wound to the victim’s heart and right lung caused him to
bleed to death. [Id. at 214-218]. The smaller caliber gunshot wounds did not cause the victim
any internal injuries. [Id. at 214]. An expert in firearms examination and bullet comparison
testified that a .25 pistol found in Borrego’s apartment was the same gun that fired a bullet that
passed through the murder victim. [State Court R., 5/28/87 Trial Tr., at 25, 33; see also 5/19/87
Trial Tr., at 115]. The gun that fired the fatal shot, a .45 revolver, was not recovered by the
police. [Id. 5/28/87 Trial Tr., at 28, 31; see also State Court R., 5/18/87 Trial Tr., at 12, 204-05,
213-14].
The Colorado Court of Appeals rejected Applicant’s claim because he failed to specify
what evidence counsel should have discovered and whether it would have been admissible and
credible. [Lucero II, Doc. # 11-6, at 30]. The state appellate court further determined that
“because [Applicant] and Borrego could have swapped guns after the crime, such evidence is
26
unlikely to have changed the outcome of trial.” [Id.].
The state appellate court’s determination that Applicant failed to show deficient
performance by defense counsel was consistent with Strickland. See Cummings, 506 F.3d at
1228-29, 31-32 (allegations based on unsubstantiated assertions of fact are not sufficient to
satisfy Strickland). Furthermore, it was reasonable for the state court to conclude that Applicant
was not prejudiced in the face of his conclusory allegations. See Boone, 62 F.3d at 327 (“[A]ll
that the Defendant urges is speculation, not a reasonable probability that the outcome would
have been different); see also Turrentine v. Mullin, 390 F.3d 1181, 1205 (10th Cir. 2004)
(petitioner “must show more than that his counsel's action had ‘some conceivable effect on the
outcome of the proceeding,’ because ‘[v]irtually every act or omission of counsel would meet
that test,’” quoting Strickland, 466 U.S. at 693 (alteration in original)). As such, Applicant is not
entitled to federal habeas relief for claim 2(vii).
8. Failure to force disclosure of confidential informants
Applicant argues that trial counsel’s performance was ineffective because counsel failed
to force the disclosure of confidential informants so as to “rebut any hearsay regarding these
informants.” [Doc. # 1, at 16]. The state appellate court rejected this claim as speculative
because Applicant failed to identify any such “hearsay.” [Lucero II, Doc. # 11-6, at 31-32].
Again, the Court finds that the state appellate court’s resolution of Applicant’s claim was
consistent with Strickland. See Cummings, 506 F.3d at 1228-29, 31-32 (allegations based on
unsubstantiated assertions of fact are not sufficient to satisfy Strickland). Accordingly, claim
2(viii) does not warrant federal habeas relief.
27
9. Cumulative ineffective assistance
Finally, Applicant asserts that he is entitled to relief based on the cumulative prejudice
that he suffered as a result of counsel’s unprofessional conduct. [Doc. # 1, at 16].
Cumulative error is present when the “cumulative effect of two or more individually
harmless errors has the potential to prejudice a defendant to the same extent as a single reversible
error.” Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002) (quoting United States v. Rivera,
900 F.2d 1462, 1469 (10th Cir.1990) (en banc)). “A cumulative-error analysis merely aggregates
all the errors that individually have been found to be harmless, and therefore not reversible, and
it analyzes whether their cumulative effect on the outcome of trial is such that collectively they
can no longer be determined to be harmless.” Id. (quoting Rivera, 900 F.2d at 1470). On federal
habeas review, a cumulative error analysis applies only to cumulative constitutional errors.
Young v. Sirmons, 551 F.3d 942, 972 (10th Cir. 2008).
There is a split in the Circuit Courts of Appeal as to whether the need to conduct a
cumulative-error analysis is clearly established federal law under § 2254(d)(1). See Hooks v.
Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012). The Tenth Circuit has indicated,
however, that in the context of ineffective-assistance claims, “for AEDPA purposes, the
cumulative-error inquiry is clearly established federal law. Id.; see also Littlejohn v. Trammell,
704 F.3d 817, 869 (10th Cir. 2013) (recognizing that “[a]though we have never expressly held . .
. that cumulative-error analysis is clearly established federal law, we have long conducted
cumulative-error analyses in our review of federal habeas claims.”) (collecting cases). This
Court need not resolve the issue because under the deferential AEDPA standard of review,
Applicant is not entitled to relief. The Colorado Court of Appeals determined that Applicant
28
failed to demonstrate deficient performance in conjunction with his ineffective assistance of
counsel claims. This Court has concluded that the state appellate court’s resolution of
Applicant’s ineffective assistance of counsel claims comported with Strickland. As such, there
are no instances of inadequate performance for the Court to accumulate. See Hooks, 689 F.3d at
1194-95 (cumulative error “‘does not apply . . . to the cumulative effect of non-errors’”) (quoting
Moore v. Gibson, 195 F.3d 1152, 1175 (10th Cir. 1999) (internal quotation marks and citation
omitted); United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (“[A] cumulative-error
analysis should evaluate only the effect of matters determined to be error, not the cumulative
effect [of non-errors].”). Because Applicant cannot show that the state appellate court’s
resolution of his cumulative error claim was contrary to any clearly established Supreme Court
law, federal habeas relief is not warranted for claim 2(I).
B. Ineffective Assistance of Appellate Counsel
Applicant claims that direct appeal counsel was ineffective in failing to “fully raise all
legal and factual matters relating to the severance issue raised on direct appeal.” [Doc. # 1, at
16].
Applicant’s claim of ineffective assistance of appellate counsel is governed by the
Strickland standard. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003); Hannon v.
Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988). “[A]ppellate counsel who files a merits brief
need not (and should not) raise every nonfrivolous claim, but rather may select from among them
in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288
(2000) (citing Jones v. Barnes, 463 U.S. 745 (1983)).
29
The Colorado Court of Appeals resolved this claim as follows:
Lucero I sets out several reasons for denying [Applicant’s] severance motion and
rejects at least three separate arguments for why a severance should have been
granted. Hence, although the in-custody argument is not among them, we
conclude that appellate counsel adequately raised the severance issue. See Jones
v. Barnes, 463 U.S. 745, 751-52 (1983) ([e]xperienced advocates since time
beyond memory have emphasized the importance of winnowing out weaker
arguments . . .”). Further, [Applicant] does not assert that this argument was
stronger than the arguments raised. [State case law citation omitted].
Accordingly, [Applicant] has failed to establish that his counsel provided
ineffective assistance on appeal.
[Lucero II, Doc. # 11-6, at 34].
The Colorado Court of Appeals’ resolution of Applicant’s claim was reasonable under
Barnes. Applicant has not set forth any facts to show that the excluded argument was stronger
than those presented on direct appeal. As such, Applicant is not entitled to federal habeas relief
for claim 2(B).
C. Cumulative Error
For his fourth claim, Applicant maintains that cumulative errors deprived him of his due
process right to a fair trial. [Doc. # 1, at 19]. Claim four rests on Applicant’s assertions that the
trial court violated his due process rights in failing to hold a competency hearing sua sponte and
in allowing him to be tried even though he was incompetent, together with his claims that trial
counsel rendered constitutionally ineffective assistance. However, because Applicant has failed
to show even a single constitutional error, his claim of cumulative error necessarily fails. See
Hooks, 689 F.3d at 1194-95; Rivera, 900 F.2d at 1471. Accordingly, federal habeas relief is not
warranted for claim four.
30
D. Prosecutorial Misconduct
Applicant asserts in claim six that the trial court violated his constitutional rights by
failing to disqualify or at least sanction the district attorneys based on the following prosecutorial
misconduct: (ii) an eye-witness statement was lost or destroyed; and,
(iv) the prosecution called Applicant and co-defendant “chili-eating bastards.” [Doc. # 1, at 23].
1. Loss of eye-witness statement
Applicant first contends that his constitutional rights were violated when an eye-witness
statement was lost or destroyed.
The state court record demonstrates that eye witness Thomas Amador made a formal
written statement to Lakewood police officers, which was temporarily misplaced, but was later
located and given to defense counsel prior to trial. [State Court R. 2/2/87 Hrg. Tr., at 75-77,
114-15, 140-41]. The statement was introduced into evidence as a government exhibit, and was
thereafter used by defense counsel to cross examine the witness. [State Court R. 5/20/87 Trial
Tr., at 162-63, 208-09].
An accused’s due process rights are violated under Brady v. Maryland, 373 U.S. 83, 87
(1963), when the prosecution suppresses material evidence that was favorable to the accused as
exculpatory or impeachment evidence. See Strickler v. Greene, 527U.S. 263, 281-82 (1999).
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.” United States v. Bagley,
473 U.S. 667, 682 (1985). “Impeachment evidence as well as exculpatory evidence falls within
the Brady rule.” United States v. Young, 45 F.3d 1405, 1408 (10th Cir. 1995) (citing Giglio v.
United States, 405 U.S. 150, 154 (1972)). In a late disclosure case, the materiality question is
31
whether there is a reasonable probability that the outcome of the trial would have been different
had the State disclosed the information earlier. See Young, 45 F.3d at 1408 (the belated
disclosure of impeachment or exculpatory information favorable to the accused violates due
process when an “earlier disclosure would have created a reasonable doubt of guilt.”) (citing
United States v. Rogers, 960 F.2d 1501, 1511 (10th Cir. 1992); see also United States v. Warhop,
732 F.2d 775, 777 (10th Cir. 1984) (due process is satisfied if Brady material is disclosed before
it is too late for the defendant to make use of the benefits of it).
The Colorado Court of Appeals determined that the temporary absence of the witness
statement did not affect the verdict at Applicant’s trial, where defense counsel used the statement
during his cross examination of the witness who produced it. [Lucero I, Doc. #11-15, at 8]. The
Court finds that the state appellate court’s resolution of Applicant’s claim was consistent with
federal law. The witness statement was made available to defense counsel at or before trial and
was used by counsel in cross-examining the witness. Applicant does not allege any facts to
show how counsel would have used the statement differently if it had been produced at an earlier
date. As such, Applicant cannot show that he was prejudiced by the late disclosure and,
therefore, he is not entitled to habeas relief for claim 6(ii).
2. Improper remark by the prosecutor
Applicant next asserts that he was denied a fair trial because of an improper remark by
the prosecutor outside the courtroom. On May 6, 1987, defense counsel and one of the
prosecutors were engaged in plea negotiations in the hallway of the courthouse. During the
conversation, the prosecutor referred to the Applicant and the co-defendant, who are both
Hispanic, as “chili-eating bastards.” [State Court R., 5/12/87 Hrg Tr., at 28,36].
32
During a hearing on the Applicant’s motion to disqualify the prosecutor’s office based on
prosecutorial misconduct, the trial court found that even if the prosecutor’s words evinced a
racial bias, they did not show that the prosecution of Applicant and the co-defendant was racially
motivated. [Id., 5/12/87 Hrg. Tr., at 111]. The trial court specifically concluded that there was
no evidence of racial bias in the District Attorney’s decision to prosecute and that the remarks of
one of the prosecutor on the case were isolated, and outside the presence of the jury. [Id. at 11113].
Habeas relief is appropriate when a prosecutor's comments “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright,
477 U.S. 168, 180 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see
also United States v. Young, 470 U.S. 1, 11 (1985) (“Inappropriate prosecutorial comments,
standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in
an otherwise fair proceeding.”). In applying this demanding standard, “it is not enough that the
prosecutors' remarks were undesirable or even universally condemned.” Darden, 699 F.2d at
1036; see also Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) (“not every improper or
unfair remark made by a prosecutor will amount to a federal constitutional deprivation.”).
“The Darden standard is a very general one, leaving courts ‘more leeway . . . in reaching
outcomes in case-by-case determinations.’” Parker v. Mathews, 132 S.Ct. 2148, 2155 (2012)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The state appellate court concluded that “the decision to seek the death penalty and the
conduct of the trial were free from obvious racial motivation and that [Applicant] failed to
demonstrate a basis for disqualifying the prosecutor.” [Lucero I, Doc. # 11-15, at 10]. The court
33
also observed that the Colorado Supreme Court had publicly censored the prosecutor for his
inappropriate remarks. [Id. at 9, citing People v. Sharpe, 781 p.2d 659 (Colo. 1989)]. The
Colorado Court of Appeals concluded that the trial court did not abuse its discretion in not
disqualifying the prosecutor because the trial court record did not reveal that “disqualification
was reasonably necessary to insure the integrity of the fact-finding process, the fairness or
appearance of fairness of the trial, the efficient administration of justice, or public confidence in
the criminal justice system.” [Id. at 10].
The Supreme Court in Donnelly recognized that “not every trial error or infirmity which
might call for application of supervisory powers correspondingly constitutes a failure to observe
that fundamental fairness essential to the very concept of justice.” 416 U.S. at 642 (internal
citation and quotation marks omitted)). Here, the prosecutor’s inappropriate remark was made
outside the presence of the jury and Applicant has failed to point to any evidence that his
criminal prosecution was racially-motivated. The Court cannot find that the state appellate
court’s resolution of Applicant’s claim “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 786–787. Accordingly, Applicant is not entitled to federal
habeas relief for claim 6(iv).
IV. ORDER
Accordingly, it is ORDERED:
1.
Applicant Anthony J. Lucero’s Application For a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (Doc. # 1) is DENIED and this case is DISMISSED on the
merits.
34
2.
No certificate of appealability will issue because Applicant has not made a
substantial showing that jurists of reason would find it debatable whether the jurisdictional and
procedural rulings are correct and whether the Amended Application states a valid claim of the
denial of a constitutional right.
Dated this 29th day of May, 2013, at Denver, Colorado.
BY THE COURT:
_______________________________________
RAYMOND P. MOORE
United States District Judge
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