Wise v. Falk et al
ORDER on 1 Application for Writ of Habeas Corpus. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [# 1 ] filed by Applicant, John D. Wise, is DENIED. This case is DISMISSED WITH PREJUDICE. There is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c). That leave to proceed in forma pauperis on appeal is denied. By Judge Robert E. Blackburn on 5/21/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 12-cv-02929-REB
JOHN D. WISE,
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the pro se Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (“Application”) [# 1],1 filed November 7, 2012, by
Applicant John D. Wise. Respondents answered the Application [# 20], and Applicant
filed a traverse [#25]. After reviewing the pertinent portions of the record in this case
including the Application, the Answer, the Traverse, and the state court record, I
conclude that the Application should be denied.
In 2004, a Denver District Court jury convicted Mr. Wise of attempted seconddegree murder; first-degree assault; four counts of aggravated robbery; and attempted
“[# 1]” is an example of the convention I use to identify the docket number assigned to a specific
paper by the court's electronic case filing and management system (CM/ECF). I use this convention
throughout this order.
aggravated robbery. [# 10-1, at 6]. The following summary of relevant facts is taken
from the Colorado Court of Appeals decision on direct review of Applicant’s conviction:
On November 23, 2003, at 12:15 a.m., [Applicant] approached the
counter of a convenience store with a bottled beverage. [Applicant]
placed money on the counter, pointed a gun at the cashier’s head, and
demanded money. After obtaining money from the cash registers,
[Applicant] pointed his gun at a female customer and demanded, and
received, money from her. [Applicant] then exited the convenience store,
approached a car in the parking lot, pointed his gun at the driver’s chest,
and demanded, and received, money from the driver. The driver’s wife
and infant daughter were passengers in the car. [Applicant] then
demanded, and received, money from the driver’s wife. Before leaving the
scene, [Applicant] fired a shot toward the driver.
At 12:37 a.m., [Applicant] approached a grocery store service desk
with a bag of chips in his hand, pulled out his gun, pointed it at the security
guard, and demanded the security guard’s gun. The security guard
unsuccessfully attempted to take [Applicant’s] gun. [Applicant] fired five
shots at the guard. After the guard had turned away to flee, the fifth shot
hit the guard in the spine, leaving him paralyzed from the waste down.
The grocery store robbery was captured on videotape and
broadcasted on the local news. All four of the convenience store victims
recognized the man in the video as the one who had robbed them. Two of
the convenience store victims also identified defendant in a photo line-up.
In addition, [Applicant’s] fingerprints were found on the beverage bottle
that he had left on the convenience store counter.
See People v. Wise (Wise I), No. 04CA2534 (Colo. App. June 28, 2007) (unpublished)
[# 10-6, at 3-4].
The state district court sentenced Applicant to an aggregate prison term of 152
years in the Colorado Department of Corrections. [State Court R., 10/22/04 Hrg. Tr., at
20-21]. On June 27, 2007, the Colorado Court of Appeals affirmed Mr. Wise’s
convictions and sentence and remanded the case to the state district court with
directions to correct the presentence report. [# 10-6]. The Colorado Supreme Court
denied Mr. Wise’s petition for certiorari review on November 13, 2007. [# 10-8].
On December 14, 2007, Mr. Wise filed a Colo. Crim. P. Rule 35(b) motion for
sentence reconsideration, which the state district court denied on December 21, 2007.
[# 10-1, at 4].
On November 6, 2008, Mr. Wise filed a Colo. Crim. P. Rule 35(c) motion for postconviction relief, which the state district court denied on October 19, 2009. [Id. at 3].
The Colorado Court of Appeals affirmed the trial court’s order in People v. Wise (Wise
II), No. 09CA2355 (Colo. App. March 29, 2012). [# 10-13]. The Colorado Supreme
Court denied Applicant’s petition for certiorari review on August 13, 2012.
Mr. Wise initiated this action on November 7, 2012. He asserts seven claims in
the Application: (1)(a) the trial court violated his Fourteenth Amendment due process
rights when it denied his motion to continue trial so that counsel could present alternatesuspect reverse-similar evidence; and (b) counsel’s failure to investigate and present
alternative suspect evidence at trial constituted ineffective assistance, in violation of the
Sixth Amendment; (2) the trial court violated his due process rights when it denied a
challenge for cause to a prospective juror whose response during voir dire
demonstrated that he could not be fair and impartial; (3) his sentence is illegal and
unconstitutional because the trial court imposed consecutive sentences for attempted
murder and first-degree assault where the convictions were supported by identical
evidence; (4) the trial court erred under Blakely v. Washington, 542 U.S. 296 (2004), in
concluding that the crimes of attempted second-degree murder and attempted
aggravated robbery were subject to “crime of violence” sentencing; (5)(a) the State’s
failure to preserve fingerprint evidence under the standards of Brady v. Maryland, 373
U.S. 83 (1963), violated his Fourteenth Amendment due process rights; and (b) his
counsel was constitutionally ineffective in failing to investigate the fingerprint evidence
before it was destroyed; (6) the trial court’s (a) denial of a continuance to investigate a
newly-discovered surveillance videotape; or, in the alternative, (b) failure to exclude the
videotape as a sanction under the standards of Brady, violated his constitutional rights
to due process and a fair trial; and, (7) the state district courts violated his constitutional
rights by denying his state post-conviction motion without first conducting an evidentiary
hearing. [# 1, at 5-6; 14-29].
Respondents have conceded that the Application is timely under the AEDPA
one-year limitation period, 28 U.S.C. § 2244(d)(1). [# 11,at 5-7]. Respondents have
further conceded that Applicant exhausted state remedies for claim 1(b), 4, and 5(b).
[Id., at 14-23]. Respondents argued in their pre-answer response, however, that
Applicant’s remaining claims were procedurally defaulted. [Id. at 10-32]. I concluded in
a previous order that claims 3, 5(a) and 6(b) were procedurally barred and that claim 7
presented an issue of state law that is not cognizable on federal habeas review. [# 18,
at 12]. I further found that Applicant exhausted state court remedies for claims 1(a),
1(b), 2, 4, 5(b), and 6(a) of the Application. [Id.]. I thus address the merits of claims
1(a), 1(b), 2, 4, 5(b), and 6(a) 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
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 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
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.
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 the
applicant seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). 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
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 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 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)).
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
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 that an applicant can prove facts that have not been
alleged, or that a respondent has violated laws in ways that an applicant has not
alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983). An applicant's pro se status does not entitle him to an
application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
III. MERITS OF THE CLAIMS
A. Claims Based on Trial Court’s Denials of Requests to Continue Trial
In claim 1(a), Applicant asserts that the trial court violated his Fourteenth
Amendment due process rights when it denied his motion to continue trial so that
counsel could present alternate-suspect reverse-similar evidence. In claim 6(a),
Applicant contends that the trial court’s denial of a continuance to investigate a newlydiscovered surveillance videotape violated his constitutional rights to due process and a
As a fundamental matter of due process, a criminal defendant has the right to
present to the jury admissible evidence that might influence the determination of guilt.
See, e.g., Taylor v. Illinois, 484 U.S. 400, 408 (1988); Pennsylvania v. Ritchie, 480 U.S.
39, 56 (1987). Notwithstanding, “[t]he matter of continuance is traditionally within the
discretion of the trial judge, and it is not every denial of a request for more time that
violates due process . . . .” Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Only when the
state trial court’s denial is “arbitrary”– e.g., “a myopic insistence upon expeditiousness in
the face of a justifiable request for delay”– will it be seen as a denial of due process. Id.
“There are no mechanical tests for deciding when a denial of a continuance is so
arbitrary as to violate due process.” Ungar, 376 U.S. at 589. However, in the context of
a habeas corpus petition, the petitioner must show both an abuse of discretion by the
trial court, and that the denial was so “arbitrary and fundamentally unfair that it violates
constitutional principles of due process.” Case v. Mondragon, 887 F.2d 1388, 1396
(10th Cir.1989) (internal quotation marks and citation omitted). The Court focuses on
the “need for a continuance and the prejudice or lack of prejudice resulting from its
denial, in the context of a fundamental fairness evaluation.” Id. at 1397.
Applicant asserts that the trial court violated his Fourteenth Amendment due
process rights when it denied his motion to continue trial so that counsel could present
alternate-suspect reverse-similar evidence.
The Colorado Court of Appeals rejected Applicant’s claim based on the following
Approximately twenty days prior to the scheduled trial, defense
counsel filed a motion requesting that the trial be delayed because she
had just received new information constituting “reverse similar” evidence,
which she asserted needed to be investigated prior to trial. Hearings were
held on the motion during which defense counsel described how
[Applicant’s] brother was arrested for robbery in a location close to the
grocery store; [Applicant] and [Applicant’s] brother looked “strikingly
similar”; and [Applicant’s] brother was wearing clothes similar to the
clothes worn by the perpetrator of the robberies with which [Applicant] was
charged. In addition, defense counsel stated that her investigator was
going on vacation and would not be able to be present during trial.
The prosecutor responded that [Applicant’s] brother had attempted
a purse snatching of an elderly woman without the use of a weapon; and
that whatever investigation needed to be done, could be done prior to trial.
In addition, the prosecutor stated:
I’m going to ask the crime lab to run [Applicant’s brother’s]
fingerprints against [fingerprints recovered from the grocery
store], and I can have that done and have the results back
certainly before trial, maybe even by next week. . . . I assure
you, if they come back to [Applicant’s brother], there will be a
different case that confronts this Applicant.
The trial court denied [Applicant’s] motion for a continuance.
Here, the “reverse similar” evidence was clearly known to
[Applicant] prior to trial. [Applicant] has not alluded to any evidence which
the trial court’s denial of the motion to continue prevented him from
obtaining. Nor has he alluded to any exculpatory information concerning
which the investigator could have testified. Given these circumstances,
we conclude that the trial court did not abuse its discretion in denying
defendant’s first motion to continue.
[Wise I, # 10-6, at 5-7].
The state appellate court’s factual findings are presumed correct under 28 U.S.C.
§ 2254(e)(2) and are supported by the state court record. [See State Court R., 7/22/04
and 7/24/04 Hrg. Trs.]. Applicant has not attempted to rebut the state court’s findings
that he knew about the “reverse similar” evidence prior to trial, that he failed to identify
any evidence which the trial court’s ruling prevented him from obtaining, and that the
investigator’s absence at trial did not affect the presentation of any exculpatory
evidence. The Colorado Court of Appeals’ resolution of Applicant’s due process claim
was not contrary to, or an unreasonable application of, federal law because Applicant
fails to point to any evidence to show that he was prejudiced by the trial court’s refusal
to grant a continuance. Applicant’s mere speculation that the outcome of his trial would
have been different if defense counsel had been granted additional time to investigate
the reverse similar evidence, [see # 25, at 5], is not enough to demonstrate a
constitutional violation. See generally United States v. Boone, 62 F.3d 323, 327 (10th
Cir. 1995) (analyzing assertion of prejudice in context of ineffective assistance of
counsel claim). The Court thus cannot find that the denial of a continuance was so
arbitrary as to violate due process. Applicant is not entitled to federal habeas relief for
In claim 6(a), Applicant contends that the trial court’s denial of a continuance to
investigate a newly-discovered surveillance videotape violated his constitutional rights to
due process and a fair trial.
The state appellate court resolved Applicant’s claim as follows:
On the first day of trial, [Applicant] requested a continuance based
on additional video footage, which had been handed over to defense
counsel two days prior. The district attorney had gone to retrieve the
original video of the grocery store shooting when he discovered a video
with additional footage from the grocery store surrounding the time of the
shooting. He immediately turned the video over to the defense attorney.
The defense counsel described the importance of the additional footage
In all candor to the Court, there is not that much more on
there that is of relevant to this case. However, there is some
panning or footage of the outside of the [grocery store] which
I think to my naked eye I can’t tell but that may lead to some
information as to others by vehicle involved, other people
who were in that store at the time or saw someone leaving.
But I think that would have to be done and require someone
to go with the video and enhance or enlarge it.
The court denied the motion and stated that there was no evidence
the withholding of the video was intentional and that the video did not
appear to be exculpatory. Moreover, the court noted that there were no
people shown in the parking lot and it was highly unlikely that any
investigation of cars in the parking lot would produce any person who had
not already come forward. Given these circumstances, and because
[Applicant] has not made a showing of any actual prejudice, we conclude
that the trial court did not abuse its discretion in denying [Applicant’s]
second motion to continue.
(Wise I, # 10-6, at 7-8; see also State Court R., 8/9/04 Trial Tr., at 5-13].
The Colorado Court of Appeals’ determination was based on a reasonable
determination of the facts in light of the evidence presented to the trial court because
the evidence suggested only a possibility that researching the license plates of the cars
shown in the parking lot might reveal additional witnesses. Again, the Court cannot find
that the state trial court’s denial of a continuance was so arbitrary as to violate due
process. Applicant cannot prevail on claim 6(a).
Ineffective Assistance of Counsel Claims
Applicant asserts in claim 1(b) that counsel’s failure to investigate and present
alternative suspect evidence at trial constituted ineffective assistance, in violation of the
Sixth Amendment. In claim 5(b), Applicant maintains that his trial counsel was
constitutionally ineffective in failing to investigate fingerprint evidence before it was
To prevail on a claim of ineffective assistance of counsel, Applicant must show
that: (1) counsel's legal representation fell below an objective standard of
reasonableness; and (2) “the deficient performance prejudiced the defense.” 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;” “[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
Petitioner’s claim fails on one. Id. at 697.
Applicant claims that counsel’s failure to investigate and present alternative
suspect evidence at trial constituted ineffective assistance, in violation of the Sixth
The Colorado Court of Appeals rejected Applicant’s claim as “speculative and
conclusory” because his allegations that counsel should have presented evidence about
an alternate suspect – i.e., Applicant’s brother– “do not support a finding that such
evidence would have been admissible.” [Id.]. The state appellate court further
concluded that Applicant had failed to demonstrate prejudice because although
Applicant alleged that he and his brother look alike, “without knowing what an
investigator or [the brother] would have said at trial, we have no reason to think that the
jury would have found the alleged similarity meaningful.” [Id. at 6].
The state appellate court’s resolution of Applicant’s claim comported with
Strickland. The mere possibility that Applicant would have been acquitted if counsel
presented the alternative suspect evidence at trial is not sufficient to demonstrate
prejudice. See Strickland, 466 U.S. at 693 (the likelihood of a different result must be
substantial, not just conceivable). As such, Applicant cannot prevail on claim 1(b).
Applicant asserts that his trial counsel was constitutionally ineffective in failing to
investigate fingerprint evidence before it was destroyed.
After the 7-Eleven robbery, police found a soda bottle that the
suspect left on the counter. A fingerprint comparison showed that
Applicant’s fingerprints matched some prints on the bottle. Later, the
bottle was destroyed. It was revealed at trial that the bottle contained
additional fingerprints that did not match Applicant’s prints.
At a pretrial hearing, the prosecution indicated that it would run a
comparison of [Applicant’s brother’s] fingerprints against those found on
items obtained from the King Soopers. Later, in his postconviction motion,
[Applicant] alleged that defense counsel should have obtained the results
of that fingerprint comparison. [Applicant] also alleged that counsel should
have hired his own experts to examine items recovered from both stores.
These claims fail because [Applicant’s] allegations, even if true, do
not support a finding of prejudice. On the basis of [Applicant’s]
allegations, there is no reason to think that the fingerprint comparisons
would have yielded evidence that either linked [Applicant’s brother] to the
King Soopers robbery, or distanced Wise from the 7-Eleven robbery.
(Although [Applicant] claimed it “possible” that his prints were not on the
bottle recovered from the 7-Eleven, he did not allege any facts to suggest
why that might be so.).
[Wise II, # 10-13, at 4, 6-7; see also State Court R., 7/24/04 Hrg Tr., at 6-7; 8/10/04 Trial
Tr., at 80-82, 93; 8/11/2004 Trial Tr., at 58-60; 124-27; 137-38].
The Colorado Court of Appeals reasonably determined that Applicant’s claim
failed on the Strickland prejudice prong because Applicant does not point to any
evidence that had counsel further investigated other fingerprints on the bottle obtained
from the 7-Eleven, there was a reasonable likelihood that Applicant would have been
acquitted. It is undisputed that Applicant’s fingerprints were on the bottle and several
witnesses placed him at the crime scenes. [State Court R., see generally 8/10/04 Trial
Tr.; 8/11/04 Trial Tr., at 58-60; 124-27]. 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).
Further, Applicant cannot show that trial counsel's decision concerning the
presentation of expert fingerprint analysis evidence was not the product of a reasonable
strategic choice. See Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002).
Importantly, Applicant does not identify any expert witness who would have testified that
running multiple tests on fingerprint evidence can yield different results. See Snow v.
Sirmons, 474 F.3d 693, 724-25 (10th Cir. 2007) (rejecting ineffective assistance of
counsel claim when habeas petitioner failed to indicate “why counsel's failure to object
to the evidence was deficient and how such alleged failure prejudiced him”); Cummings,
506 F.3d at 1233 (holding that a petitioner's ineffective assistance claim failed to satisfy
Strickland's first prong because nothing demonstrated the content of a potential expert's
testimony). Accordingly, Applicant cannot prevail on claim 5(b).
B. Claim Two
For his second claim, Applicant asserts that the trial court violated his due
process rights when it denied a challenge for cause to a prospective juror, whose
response during voir dire demonstrated that he could not be fair and impartial.
During voir dire, the prosecutor asked the jury whether anyone had been a victim
of “any kind of crime that has had an impact on them where they just don’t think they
could be fair in this case.” [State Court R., 8/9/04 Trial Tr., at 170]. In response, one
prospective juror described how he had been robbed at gunpoint while managing a
clothing store when he was eighteen. [Id. at 171]. The following exchange ensued
between the prosecutor and the prospective juror.
Prosecutor: Given that experience, could you sit on this jury
and be fair to both sides?
Prospective Juror: I don’t know. We’ll wait and see as the
Prosecutor: Let me ask you this: Let me ask it this way: If the
judge instructs you that your job as a juror is to apply the
facts to the law and render a verdict, can you set your
experience aside and listen and honor the judge’s order to
you as a juror?
Prospective Juror: To the best I can, yes. I don’t know yet
so I’ll do the best I can.
[Id. at 171-72]. The trial court denied Applicant’s challenge for cause, and he
subsequently exhausted his allotment of peremptory challenges on other prospective
jurors. [Id. at 194-95; 199-201].
In the direct appeal proceeding, the Colorado Court of Appeals applied COLO.
REV. STAT. § 16-10-103(1)(j) (2006) to resolve Applicant’s claim. Under the state
statute, a judge shall grant a challenge for cause if a prospective juror has a state of
mind “evincing enmity or bias toward the defendant or the state.” Id. Applying an abuse
of discretion standard, the state appellate court resolved Applicant’s claim on the
Here, the prospective juror expressed concern about his ability to
be fair to both sides. An expression of concern by a potential juror
regarding some facet of the case or about jury service should not result in
the automatic exclusion of that person for cause. [State case law citations
Here, the juror indicated that he could set aside his experiences
and listen and follow the judge’s order “[t]o the best I can, yes.” While the
incident in question had happened to the juror himself, it also appeared to
have happened years beforehand. Moreover, the trial court had the
opportunity to observe the juror as he was questioned and was in the best
position to evaluate his credibility and demeanor.
Given these circumstances, we conclude that the trial court did not
abuse its discretion in denying [Applicant’s] challenge for cause.
[Wise I, # 10-6, at 10-11].
It is well settled that the Sixth and Fourteenth Amendments guarantee a
defendant the right to an impartial jury. Ross v. Oklahoma, 487 U.S. 81, 85 (1988). A
prospective juror must be removed for cause if his views would prevent or substantially
impair the performance of his duties as a juror. See Wainwright v. Witt, 469 U.S. 412,
424 (1985). “It is sufficient if the juror can lay aside his impression or opinion and
render a verdict based on the evidence presented in court.” Irvin v. Dowd, 355 U.S.
717, 723 (1961); Patton v. Yount, 467 U.S. 1025, 1036 (1984) (where a criminal
defendant sought to excuse a juror for cause and the trial judge refused, the question
was simply “did [the] juror swear that he could set aside any opinion he might hold and
decide the case on the evidence, and should the juror's protestations of impartiality
have been believed”). A trial court’s findings concerning a venireman’s bias are “based
upon determinations of demeanor and credibility that are peculiarly within a trial judge's
province.” Wainwright, 469 U.S. 412, 428 (1985); see also Uttecht v. Brown, 551 U.S. 1,
9 (2007)(“Deference to the trial court is appropriate because it is in a position to assess
the demeanor of the venire, and of the individuals who compose it, a factor of critical
importance in assessing the attitude and qualifications of potential jurors.”) (internal
The trial court’s determination of juror impartiality is a question of fact, see
Patton, 467 U.S. at 1036, and is therefore presumed correct under the AEDPA standard
of review. Applicant does not point to any evidence in the record to rebut the state trial
court’s finding that the prospective juror could render a fair and impartial verdict. The
state trial court found specifically that the prospective juror indicated that he would listen
to the court’s instructions and apply them to the law and that he “agree[d] in earlier
questioning that the defendant is innocent until proven guilty and [that the prospective
juror] will wait until he’s heard the evidence until he . . . . makes [a] determination [of
guilt].” [State Court R., 8/9/04 Trial Tr., at 195]. The voir dire as a whole supports the
trial court’s findings of juror impartiality. See United States v. Scott, 159 F.3d 916, 92526 (5th Cir. 1998) (district court did not err in denying the defendants’ challenge for
cause to prospective juror who stated that she would try to set aside her bias toward
believing the testimony of a government agent). Moreover, defense counsel used six
peremptory challenges to strike prospective jurors who had not been challenged for
cause.2 [Id., at 199-201]. Because Applicant does not point to any clear and convincing
evidence to show that the jury that convicted him was impartial, I find and conclude that
the state appellate court’s resolution of Applicant’s claim was reasonable in light of the
evidence presented in the state court proceeding and was not contrary to, or an
unreasonable application of, Supreme Court law. Applicant thus cannot prevail on his
second claim for relief.
C. Claim Three
For his third claim, Applicant asserts that the trial court erred under Blakely
v. Washington, 542 U.S. 296 (2004), in concluding that the crimes of attempted seconddegree murder and attempted aggravated robbery were subject to “crime of violence”
I note that a defendant’s constitutional rights are not violated where the trial court denies his
challenge for cause and he elects to use a peremptory challenge to achieve an impartial jury. See United
States v. Martinez–Salazar, 528 U.S. 304, 307 (2000) (“if the defendant elects to cure [the trial court’s
error in not excusing a biased juror for cause] by exercising a peremptory challenge and is subsequently
convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or
constitutional right); Ross, 487 U.S. at 88.
Under Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact other than a prior
conviction that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proven beyond a reasonable doubt. Id. at
490. Apprendi applies when the sentence is enhanced beyond the prescribed “statutory
maximum,” which the Supreme Court has defined as the maximum sentence a judge
may impose based on the verdict alone, “without any additional findings.” Blakely, 542
U.S. at 304.
The Colorado Court of Appeals addressed Applicant’s claims pursuant to the
standards set forth in Apprendi and Blakely. [Wise I, # 10-6, at 12]. The state appellate
Attempted second degree murder, first degree assault, and
aggravated robbery all require the imposition of sentences in accordance
with § 18-1.3-406, C.R.S. 2006, the crime of violence statute. Sections
18-2-101(3.5), 18-3-103(4), 18-3-202(2)(c), 18-4-302(4), C.R.S. 2006.
Accordingly, no additional findings are necessary for [Applicant] to
be sentenced in accordance with the crime of violence statute because
the substantive criminal statutes specifically require such sentencing. See
People v. Terry, 789 P.2d 374, 376-79 (Colo. 1990). Therefore, as
[Applicant] was sentenced within the statutory limits established by the
General Assembly for the crimes for which he was convicted, his sentence
was not in violation of either Apprendi or Blakely.
[Id. at 12-13].
Applicant’s sentences based on his convictions for attempted second-degree
murder and attempted aggravated robbery are specifically prescribed by state statute,
based on the verdicts alone, without any additional factual findings. As such, the state
appellate court’s rejection of Applicant’s claim was consistent with Apprendi and
Blakely. Applicant cannot prevail on claim three in the Application.
IV. IFP STATUS UNDER 28 U.S.C. § 1915
Finally, I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
THEREFORE, IT IS ORDERED as follows:
1. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 [# 1] filed November 7, 2012, by Applicant, John D. Wise, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That there is no basis on which to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c); and
4. That leave to proceed in forma pauperis on appeal is denied; however,
Applicant may file a motion in the United States Court of Appeals for the Tenth Circuit.
Dated at Denver, Colorado, on May 21, 2013.
BY THE COURT:
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