Fisher v. Clements et al

Filing 36

ORDER denying 1 Application for a Writ of Habeas Corpus 2254. This case is DISMISSED WITH PREJUDICE. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C. § 2253(c). That leave to proceed in forma pauperis on appeal is DENIED without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. By Judge Robert E. Blackburn on 8/26/2015. (mlace, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00146-REB
MICHAEL FISHER,
Applicant,
v.
RICK RAEMISCH, Exec Director Colorado Dept of Corrections,1
JOHN DAVIS, Warden, Buena Vista Correctional Facility, and
JOHN SUTHERS, Attorney General, State of Colorado,
Respondents.

ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS
Blackburn, J.
This matter is before me on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (“Application”) [# 1],2 filed January 22, 2013, by
Applicant, through counsel. On March 18, 2013, this action was dismissed with
prejudice by Senior Judge Lewis T. Babcock as barred by the one-year limitation period
set forth in 28 U.S.C. § 2244(d)(1). On appeal, the United States Court of Appeals
reversed and remanded the case for further proceedings. See Fisher v. Raemisch, 762
F.3d 1030 (10th Cir. Aug. 5, 2014). The Tenth Circuit issued the mandate on August
1

Pursuant to Fed. R. Civ. P. 25(d), Rick Raemisch, the current Executive Director of the Colorado
Department of Corrections (CDOC), has been substituted for Tom Clements, the former CDOC Executive
Director.
2

“[# 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.

27, 2015 [# 17], and the action was reinstated in this Court on August 29, 2014. [# 18].
Respondents thereafter answered the Application [# 24], and Applicant filed a traverse
[# 31]. 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.
I. BACKGROUND
Applicant was convicted by a jury of felony murder, aggravated robbery, and
conspiracy to commit aggravated robbery in Adams County District Court Case No.
96CR1640. See People v. Fisher, 9 P.3d 1189, 1190 (Colo. App. 2000) (Fisher I).
The Colorado Court of Appeals summarized the relevant facts as follows:
On September 19, 1996, defendant, his co-defendant, and a
woman were using drugs and wanted to obtain more. Lacking the funds to
do so, the defendant and co-defendant arranged to steal drugs from the
victim. At trial, there was evidence the plan called for the use of a gun to
intimidate the victim and then to take her drugs without payment. When
the victim refused to turn over the drugs, she was shot and killed by the
co-defendant.
Id. Applicant was sentenced to a term of life imprisonment without the possibility of
parole.3 The judgment of conviction was affirmed on direct appeal. See Fisher, 9 P.3d
at 1193. On October 10, 2000, the Colorado Supreme Court denied Mr. Fisher’s
petition for certiorari review. [# 7-5].
On October 1, 2001, Applicant filed, pro se, a motion for state post-conviction
relief pursuant to Colo. Crim. P. Rule 35(c) and counsel was appointed.

3

See State Court R., 1/15/98 Hrg. Tr. at 83.

2

[ ## 1-2 & 7-1 at 17]. The state district court eventually held an evidentiary hearing and
denied the Rule 35(c) motion on November 18, 2009. [ # 7-1 at 10-11; # 7-3]. The
Colorado Court of Appeals affirmed the trial court’s order. See People v. Fisher, No.
09CA2727 (Colo. App. Apr. 19, 2012) (unpublished) (Fisher II). [# 1-8]. On October 15,
2012, the Colorado Supreme Court denied Applicant’s petition for certiorari review. [#
7-2].
Applicant initiated this action on January 22, 2013. He asserts two claims in the
Application: (1) that his Sixth Amendment right to counsel was violated because his
attorneys labored under an actual conflict of interest; and, (2) his right to due process
was violated because the jury instruction on complicity failed to apprise the jury of the
requisite mental state for the crime of accomplice to felony murder. [# 1, at 20, 24].
In a Pre-Answer Response, Respondents argued that the Application was
untimely and that there was no basis for equitable tolling. [# 7 at 6-12]. Respondents
conceded, however, that Applicant exhausted available state court remedies for his
claims. [Id. at 18-21].
As discussed above, this action was dismissed as untimely on March 18, 2013.
[# 9]. Following reversal and remand by the Tenth Circuit, the case was drawn to the
undersigned. I address below the merits of Applicant’s claims under the deferential
AEDPA standard of review.

3

II. LEGAL STANDARDS
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).
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.

4

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 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
5

judgment would conclude the state court misapplied Supreme Court law.” Maynard,
468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Harrington v. Richter, 562 U.S. at 101 (internal quotation marks and citations omitted).
“[R]eview 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, 563 U.S. 170, 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, 562 U.S. at 102 (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, 562 U.S. at 103. See also White v. Woodall, 134 S. Ct. 1697 (2014) (citing and
quoting Richter).
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
6

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)).
III. MERITS OF THE CLAIMS
A. Claim One
Applicant claims that his Sixth Amendment right to counsel was violated because
trial counsel labored under an actual conflict of interest. Specifically, Applicant asserts
that while he was represented by attorneys from the Brighton office of the Colorado
Public Defender (CPD), the Denver office of the CPD represented a witness endorsed
by the prosecution in an unrelated case. [# 1 at 20].
1. applicable legal standards
The Sixth Amendment right to counsel is a right to effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the
ineffective assistance of counsel is demonstrated where: (1) counsel's legal
representation fell below an objective standard of reasonableness; and (2) “the deficient
performance prejudiced the defense.” Id. at 687-88. Prejudice exists when there is a
reasonable probability that, but for counsel’s defective representation, the result of the
proceeding would have been different. Id. at 693. The likelihood of a different result
must be substantial, not just conceivable. Id.

7

An exception to the two-part showing required under Strickland arises, and the
ineffectiveness of counsel is presumed where counsel “‘actively represented conflicting
interests' and ‘an actual conflict of interest adversely affected [the defense] lawyer's
performance.’” Id. at 692 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350
(1980)). To trigger Sixth Amendment concerns, there must be more than a potential
conflict of interest or “a mere theoretical division of loyalties.” Mickens v. Taylor, 535
U.S. 162, 171 (2002).
However, the Supreme Court has not applied Cuyler’s presumption of prejudice
outside the context of defense counsel’s concurrent representation of multiple
defendants in the same criminal proceeding. See Mickens, 535 U.S. at 176 (stating that
it is “an open question” whether the holding in Cuyler applies outside the context of
concurrent, multiple representation). See also Benge v. Johnson, 474 F.3d 236, 244-45
(6th Cir. 2007) (“. . . [Cuyler] covers only cases of ‘joint representation at trial’”; no clearly
established federal law prohibits representation of defendant and a prosecution witness
in two different, unrelated and non-simultaneous proceedings); Phillips v. United States,
668 F.3d 433, 436 (7th Cir. 2012) (assuming that defense counsel’s prior representation
of a prosecution witness created a conflict of interest, “such conflict was not the sort of
conflict that makes legal representation automatically ‘ineffective[;]’ [p]rejudice must be
shown”); Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (“The Supreme Court has
not expanded [Cuyler’s] presumed prejudice standard beyond cases involving multiple
representation. . . .”). Accordingly, a habeas petitioner asserting a conflict of interest
claim that does not involve concurrent representation of multiple defendants must

8

satisfy the Strickland prejudice standard. See Benge, 474 F.3d at 245; Phillips, 668
F.3d at 436; Beets, 65 F.3d at 1272.
2. state court proceedings
a. district court
Applicant asserted his conflict of interest claim in a state post conviction motion
filed pursuant to Colo. Crim. P. Rule 35(c). The state district court held an evidentiary
hearing, at which the defense attorneys testified.4 Following the hearing, the state
district court entered a written order. In Fisher II, the Colorado Court of Appeals
summarized the trial court’s findings as follows:
. . . [A]t the time the prosecution endorsed M.S. as a witness, M.S.
was being represented by the public defender’s Denver regional office in
another matter. Also, M.S. had previously been represented by attorneys
from the Brighton and Golden regional public defender’s offices. The court
found, however, that defendant’s trial counsel had never represented
M.S., M.S. “never shared any confidences” with them, and the trial
attorneys did not have access to M.S.’s files from “any of the Denver or
Jefferson County cases.”
[# 1-8, at 6].5
In addition,
The trial court found credible the testimony of defendant’s trial
counsel regarding their reasons for deciding not to impeach M.S.’s
testimony, which counsel viewed as consistent with the defense theory, by
bringing out his prior felony convictions.
[Id. at 6-7]. 6
4

See also State Court R., 4/17/09 and 11/13/09 Hrg. Transcripts.

5

State Court R., Court File at 389,391-392.

6

M.S. refers to prosecution witness Mark Serratore. At trial, M.S. invoked his privilege against
self-incrimination. See id. 1/14/98 Trial Tr. at 36-37. The trial court found M.S. unavailable, and the
prosecution elicited M.S.’s prior statements through a detective. Id. at 36-38, 47-48, 64-67.

9

After reviewing the pertinent Colorado case law, the state post conviction court
determined the following:
Analytically, when the Court reviews the foregoing authority, the
Court is compelled to conclude that no disqualifying conflict of interest
existed in this case. First, neither attorney that represented the Defendant
in this case had represented Mr. Serratore. Second, the offices
representing Mr. Serratore were geographically distant from the Brighton
office and the one case in which the Brighton office had been involved in
the representation of Mr. Serratore had terminated that representation
several years before and neither attorney, on the evidence presented, had
access to the confidences of their former client.
Although trial counsel acknowledged a potential conflict of interest,
the Court finds and concludes that the potential conflict did not rise to the
level of an actual conflict of interest requiring a waiver. The Court makes
this finding for several reasons. First, the prior representation by the
Brighton office was remote in time. Second, the witness’ statements were
ambiguous and not inconsistent with the defense theory. Third, trial
counsel effectively cross-examined the officer bringing out exculpatory
evidence. Fourth, there was other overwhelming evidence of the crime,
including the Defendant’s statements, independent of the other witness’
statement, making the statement a collateral issue in the overall trial
proceeding. Fifth, the evidence presented at this hearing established that
the Defendant’s trial counsel exercised clearheaded advice to the
Defendant based upon the strong evidence against, uninfluenced by any
external considerations. . . .
The Court finds and concludes that the Defendant has not met his
burden of proof, the Court finds that not even a mere possibility of a
conflict has been demonstrated by the evidence. No Sixth Amendment
violation has been established. Cuyler v. Sullivan, 446 U.S. 335, 350, 100
S.Ct. 1708 (1980).7
b. Colorado Court of Appeals
In Fisher II, the state appellate analyzed Applicant’s conflict-of-interest claim
under the following legal principles:

7

State Court R., Court File at 389, 400-401.

10

The right to conflict-free counsel is encompassed within a
defendant’s Sixth Amendment right to effective assistance of counsel.
People v. Shari, 204 P.3d 453, 457 (Colo. 2009); People v. Harlan, 54
P.3d 871, 879 (Colo. 2002). However, the mere possibility of a conflict is
insufficient to establish a Sixth Amendment violation. Shari, 204 P.3d at
457; People v. Castro, 657 P.2d 932, 943 (Colo. 1983).
...
However, the mere existence of such a conflict is not dispositive of
a defendant’s right to postconviction relief. Rather, when the issue is
raised for the first time in a Crim. P. 35(c) proceeding, the defendant “can
prevail on an ineffective assistance of counsel claim, without having to
prove prejudice, by showing that an actual conflict of interest adversely
affected trial counsel’s performance.” Dunlap [v. People], 173 P.3d [1054,]
1073 [(Colo. 2007)] (citing Cuyler v. Sullivan, 446 U.S. 335, 348-50
(1980)). To make this showing, the defendant must point to specific
instances in the record that suggest actual impairment of his or her
interest. People v. Kenny, 30 P.3d 734, 745 (Colo. App. 2000). “More
specifically, the defendant must identify something that counsel chose to
do or not do, as to which [counsel] had conflicting duties, and must show
that the course taken was influenced by that conflict.” Id. (quoting Vance v.
Lehman, 64 F.3d 119, 124 (3d Cir. 1995)); see also People v. Kelling, 151
P.3d 650, 657 (Colo. App. 2006) (although there was a potential conflict of
interest between defendant and counsel, there was no basis for finding an
actual conflict of interest that adversely affected counsel’s performance).
[# 1-8, at 3-5].
The state appellate court then concluded that the following factual findings made
by the district court “were amply supported by the record.” [Id. at 10].
Specifically, trial counsel R.J. testified that he had never heard of
M.S. before M.S. was endorsed as a witness in defendant’s case, that he
felt no loyalty to M.S., and that he considered himself free to ask M.S. any
questions as long as the questions were not based on anything learned
from the public defender files or from talking with M.S.’s counsel. The
“conflict memorandum” prepared at the time of trial, according to R.J.,
evidenced counsel’s view that, even if a potential conflict was present,
there was no actual conflict that would have any effect on their
representation of defendant.
R.J. and his co-counsel, C.M., also explained the defense strategy
and how their election not to impeach M.S. with his prior felonies was
consistent with that strategy. Neither counsel remembered having spoken
11

with M.S. in the past or having received any confidential information
concerning M.S.’s other cases.
[Id.].8
The Court of Appeals affirmed the district court’s order, concluding that Applicant
had failed to demonstrate an actual conflict of interest that adversely affected the
defense attorneys’ representation of him. [# 1-8, at 10-11].
3. application of AEDPA standard of review
As an initial matter, I find and conclude that the Colorado Court of Appeals’
decision could not have been contrary to or an unreasonable application of, Cuyler
because Applicant does not assert that his trial attorneys represented him and a codefendant in the same criminal case. See House, 527 F.3d at 1018 (if there is no
clearly established federal law, that is the end of the court’s inquiry pursuant to
§ 2254(d)(1)). However, even if the Cuyler standard applies to the facts of this case, I
find that Applicant is not entitled to federal habeas relief.
First, the state post conviction court found that Applicant’s trial attorneys had not
ever represented M.S., or learned any confidences about him or his criminal cases from
any other regional CPD office. Further, Applicant’s trial attorneys felt “no loyalty” to
M.S. Based on these facts, which are presumed correct, are supported by the state
court record, and are not contested by Applicant, the state appellate court concluded
reasonably that M.S.’s representation by other regional CPD offices presented a
potential, rather than an actual, conflict of interest. [# 1-8, at 9].

8

See also State Court R., 4/17/09 Hrg. Tr. at 25-104; 11/13/09 Hrg. Tr. at 5-40.

12

Second, Applicant has failed to show that the potential conflict had an adverse
affect on counsel’s representation. Applicant suggested in the state post-conviction
proceeding that his trial attorneys failed to impeach M.S.’s statement to the detective
with M.S.’ prior convictions because of counsel’s loyalty to M.S. I find no evidence in
the record to support Applicant’s contention.
A detective testified at trial as to M.S.’s statements because the trial court
determined that M.S. was “unavailable.”9 M.S. told the detective that after the victim
was shot, he and Applicant burned the car in which the robbery and shooting
occurred.10 One of Applicant’s trial attorneys testified at the Rule 35(c) hearing that the
defense wanted M.S.’s statement to be admitted into evidence through the detective
because it was consistent with the defense strategy.11 The prosecution’s evidence at
trial would be that: Applicant planned the victim’s meeting with the shooter (Applicant’s
co-defendant) and was present for the shooting; and, Applicant, the co-defendant, and
M.S. were all friends who had a drug habit.”12 Because defense counsel anticipated
that Applicant would be convicted of something, the defense strategy was to separate
Applicant from the co-defendant and to argue that unlike the co-defendant, Applicant
was not violent and had only planned a theft from the victim – a crime that would not
support a felony murder charge.13 Defense counsel further testified at the Rule 35(c)

9

State Court R., 1/14/98 Trial Tr. at 36-38, 47-48, 64-67 .

10

State Court R., 1/14/98 Trial Tr. at 47-48,64-67.

11

Id., 4/17/09 Hrg. Tr. at 64-66.

12

Id. at 68, 70, 97; see also 1/13/98 Trial Tr. at 70-74.

13

Id., 4/14/09 Hrg. Tr. at 67-71, 85-87, 92, 96-97, 102-104 ; 11/13/09 Hrg. Tr. at 25, 35-36, 42.

13

haring that M.S.’s statement to the detective was not harmful to the defense strategy
because it implicated Applicant only in burning the car after the shooting and M.S.’s
other statements to the detective indicated that Applicant may have burned the car
under pressure from the co-defendant and M.S.14 Because defense counsel wanted the
jury to hear M.S.’s statements to the detective, counsel saw no reason to impeach
M.S.’s credibility with his prior felony convictions in unrelated cases.15
Defense counsel’s testimony at the Rule 35(c) hearing refutes Applicant’s
contention that counsel felt a sense of loyalty to M.S. that caused counsel not to cross
examine the detective as to M.S.’s prior felony convictions. Moreover, Applicant has not
pointed to any other clear and convincing evidence to support his assertion.
Applicant’s other “adverse effect” arguments are equally unavailing. He
emphasized at the Rule 35(c) hearing that defense counsel did not attempt to interview
M.S. until 2-3 weeks prior to trial, instead of listing M.S. on its initial witness interview
list, prepared several months earlier.16 However, as the state district court concluded,
there is nothing unreasonable about interviewing a witness two to three weeks prior to
trial, especially where the prosecution’s endorsement listed M.S. as “at large.”17
Applicant fails to explain how the timing of the witness interview affected counsel’s
representation.

14

Id., 1/14/98 Trial Tr., at 64-66; 4/17/09 Hrg. Tr. at 66-69, 102.

15

Id., 4/17/09 Hrg. Tr. at 86-87; 11/13/09 Hrg. Tr. at 35-36, 70, 86-87.

16

State Court R., 4/17/09 Hrg. Tr. at 33-35, 53-54; 11/13/09 Hrg. Tr. at 15, 19-20.

17

Id., 11/13/09 Hrg. Tr. at 119-20, 131-32.

14

Next, Applicant contended in the state post conviction proceeding that defense
counsel failed to examine the detective about a deal M.S. made with the prosecution in
exchange for his cooperation in Applicant’s criminal case.18 However, the trial transcript
of defense counsel’s cross examination directly refutes this assertion.19
Applicant’s final contention in the state post-conviction proceeding was that
defense counsel had a “personal interest” in not disclosing the potential conflict resulting
from M.S.’s involvement in this case because of an “appearance of impropriety” that
may have resulted in disciplinary sanctions.20 [# 1, at 13-14]. Once again, Applicant’s
contention is belied by the state court record, which shows that the conflict was potential
only, and counsel denied having any concerns about professional disciplinary action.21
In sum, to the extent Cuyler applies, I find and conclude that the Colorado Court
of Appeals’ determination that Applicant failed to establish an actual conflict of interest
that adversely affected counsel’s performance comported with Supreme Court law and
is supported by the evidence presented in the state court proceeding. See, e.g., Phillips,
668 F.3d at 436 (in the absence of evidence that defense counsel learned privileged
information while representing prosecution witness in prior, unrelated proceeding, such
that cross-examination of witness might be limited, there was “not the smallest reason
to believe” any conflict adversely affected counsel’s performance); Jones v. Polk, 401
F.3d 257, 267-68 (4th Cir. 2005) (state courts reasonably rejected Cuyler v. Sullivan
18

Id., 4/17/09 Hrg. Tr. at 22.

19

Id. at 91-92.

20

State Court R., 11/13/09 Hrg. Tr. at 129-30.

21

Id., 4/17/09 Hrg. Tr. at 46-47.

15

claim, where applicant failed to show how defense counsel’s concurrent representation
of a prosecution witness in an unrelated domestic relations matter actually conflicted
with his representation of applicant; there was no evidence counsel learned privileged
information limiting his cross-examination of the witness, and counsel gave strategic
reasons for not crossing witness on certain subjects).
I further find and conclude that the state appellate court’s decision was not
contrary to, or an unreasonable application of, the Strickland standard. Although the
Colorado Court of Appeals did not analyze Applicant’s claim under Strickland, this
Court is bound to uphold the state courts’ decision rejecting Applicant’s Sixth
Amendment claim so long as the result was not contrary to, or an unreasonable
application of, federal law. See 28 U.S.C. § 2254(d)(1). Applicant has failed to establish
that counsels’ performance was deficient or that the outcome of his trial would have
been different if not for the alleged potential conflict of interest. See Strickland, 466
U.S. at 687-88.
As discussed above, M.S. was a tangential witness. Even if defense counsel
had conducted a more stringent cross examination of the detective concerning M.S.’s
statements to the police, M.S. prior convictions, and any deal M.S. had been offered by
law enforcement in exchange for his cooperation, Applicant does not explain how this
additional questioning would have resulted in a reasonable probability of acquittal on the
aggravated robbery and felony murder charges. Because M.S. was not present when

16

the robbery and murder occurred, his statements could not possibly have exonerated
the Applicant.22
In sum, because the Colorado Court of Appeals’ decision did not run afoul of
Cuyler or Strickland, and was supported by the evidence presented in the state court
proceeding, Applicant is not entitled to habeas corpus relief for his first claim.
B. Claim Two
For his second claim, Applicant contends that his right to due process was
violated because the jury instruction on complicity failed to apprise the jury of the
requisite mental state for the crime of accomplice to felony murder. [# 1, at 24].
Jury Instruction No. 10 stated:
A person is guilty of an offense committed by another person if he is a
complicitor. To be guilty as a complicitor, the following must be
established beyond a reasonable doubt:
1. A crime must have been committed.
2. Another person must have committed all or part of the crime.
3. The defendant must have had knowledge that the other person
intended to commit all or part of the crime.
4. The defendant must have had the intent to promote or facilitate the
commission of the crime.
5. The defendant must have aided, abetted, advised or encouraged the
other person in the commission or planning of the crime.23

22

See State Court R., 1/13/98 Trial Tr. at 90-115; 1/14/98 Trial Tr. at 47-50, 64-67, 140 .

23

See also State Court R., Court File, Jury Instruction No. 10.

17

See also COLO.REV.STAT. (C.R.S.) § 18-1-603 (2015).24
Applicant asserts that the complicity instruction was deficient because the phrase
“all or part of” in the second element permitted the jury to convict applicant of felony
murder even if he only knew that the co-defendant (the shooter) intended to commit
“part of” felony murder – namely the predicate crime of robbery. [# 1, at 26]. Applicant
maintains that under Colorado law, he could only be convicted of felony murder as a
complicitor if he intended both the robbery and that someone be killed during that
robbery. [Id. at 26-27].
1. applicable federal law
The Due Process Clause requires the prosecution to prove every element of a
charged offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364
(1970). To demonstrate a constitutional error from a jury instruction in a state criminal
trial, a habeas petitioner must demonstrate (1) an “ambiguity, inconsistency, or
deficiency” in the instruction, and, (2) that there was “‘a reasonable likelihood’” that the
jury applied the instruction in a way that relieved the State of its burden of proving every
element of the crime beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S.
179, 190-91 (2009) (internal quotation marks and citations omitted). See also Victor v.
Nebraska, 511 U.S. 1, 6 (1994) (the constitutional inquiry is “whether there is a
reasonable likelihood that the jury understood the instructions to allow conviction based
on proof insufficient to meet the Winship standard.”). In making this determination, the

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Colorado’s complicity statutes provides: “A person is legally accountable as principal for the
behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission
of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing
the offense.” C.R.S. § 18-1-603 (2015).

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jury instruction “‘may not be judged in artificial isolation,’ but must be considered in the
context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at 72
(quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). A “slight possibility” that the jury
misapplied the jury instruction is not enough. See Weeks v. Angelone, 528 U.S. 225,
236 (2000). Instead, the pertinent question “is ‘whether the ailing instruction by itself so
infected the entire trial that the resulting conviction violates due process.’” Estelle, 502
U.S. at 72 (quoting Cupp, 414 U.S. at 147).
2. state appellate court proceeding
In Fisher I, the Colorado Court of Appeals discussed the legal principles of
complicity liability under Colorado law before addressing the merits of Applicant’s claim:
. . . Section 18–1–603, C.R.S.1999, defines complicity as follows:
“A person is legally accountable as principal for the behavior of another
constituting a criminal offense if, with the intent to promote or facilitate the
commission of the offense, he or she aids, abets, advises, or encourages
the other person in planning or committing the offense.”
The complicity statute does not create a substantive offense.
Palmer v. People, 964 P.2d 524 (Colo.1998). “Complicity is a theory of law
by which an accomplice may be held criminally liable for a crime
committed by another person if the accomplice aids, abets, or advises the
principal, intending thereby to facilitate the commission of the crime.”
Bogdanov v. People, 941 P.2d 247, 250 (Colo.1997).
However, complicity is not a theory of strict liability. It requires that
a defendant have the culpable mental state required for the underlying
felony and intend that his or her conduct promote or facilitate the
commission of the crime by the principal. Thus, the statutory mens rea
definitions in § 18-1-501, C.R.S. 1999, do not apply to complicity, and
“intent,” as used in § 18-1-603, C.R.S. 1999, retains its common meaning.
Bogdanov v. People, supra.
There is no requirement that the principal intend the death of the
victim in felony murder; felony murder is a strict liability crime. People v.
Meyer, 952 P.2d 774 (Colo. App. 1997). While felony murder is a strict
liability crime, it requires as one of its elements that the principal commit a
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predicate felony. People v. Jones, 990 P.2d 1098 (Colo. App. 1999). All
the predicate felonies in § 18-3-102(1)(b) require proof of a culpable
mental state. The underlying felony substitutes for the culpable mental
state in felony murder. People v. Priest, 672 P.2d 539 (Colo. App. 1983).
If a complicitor has the culpable mental state for the underlying
felony, he or she in fact has the same culpable mental state as the
principal, thus satisfying the first part of the “intent” requirement of the
complicity statute. Because no intent to cause a death is required for
felony murder, the second prong of the “intent” requirement can be met if
the complicitor’s purpose is to promote or facilitate the commission of the
underlying felony.
Fisher I, 9 P.3d at 1191.
The state appellate court then determined:
Applying these principles, we conclude that it is neither illogical nor
illegal to give an instruction on complicity in a felony murder trial when
there is evidence to support a complicity theory. This has long been the
law in Colorado. See People v. Saiz, 42 Colo.App. 469, 600 P.2d 97
(1979). Therefore, we hold that a defendant who acts as a complicitor in
the underlying felony may be held criminally liable for a death that occurs
during its commission pursuant to § 18-3-102(1)(b).
Because felony murder does not require intent to cause death, the
defendant's analysis, taken to its conclusion, would excuse a complicitor
who aided the principal and who had the same mental culpability as the
principal. This would defeat the purpose of the complicity statute which
provides that a complicitor is “legally accountable as principal.” Section 181-603, C.R.S. 1999. We cannot condone such an illogical result.
...
Defendant further argues that inclusion of the language “all or part
of” in the complicity instruction was error. Defendant contends that this
language allows conviction if the proof showed only that he intended to
promote or facilitate part of the crime, the aggravated robbery, but did not
intend to cause the death of the victim. This argument mirrors his
previously discussed objections to the application of the complicity rules to
felony murder, and for the reasons stated above, we are not persuaded.
We conclude the complicity instruction correctly informed the jury of
the elements of proof required to hold defendant criminally liable for felony
murder under the theory of complicity. Bogdanov v. People, supra.
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(Id. at 1191-92).
3. application of AEDPA standard of review
The state appellate court’s determinations that, under Colorado law, it is proper
“to give an instruction on complicity in a felony murder trial when there is evidence to
support a complicity theory,” Fisher I, 9 P3d at 1191, and that the complicity instruction
“correctly informed the jury of the elements of proof required to hold defendant
criminally liable for felony murder under the theory of complicity,” id. at 1192, are
determinations of state law that are binding on this federal habeas court. See
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (recognizing that “a state court's
interpretation of state law, including one announced on direct appeal of the challenged
conviction, binds a federal court sitting in habeas corpus.”). As such, Applicant cannot
show that the instruction contained “some ‘ambiguity, inconsistency, or deficiency,’” as
required by Supreme Court law. See Waddington, 555 U.S. at 190-91.
Moreover, there is no reasonable likelihood that the jury applied the instruction in
a way that relieved the State of its burden of proving every element of the crimes of
felony murder and aggravated robbery beyond a reasonable doubt.
In Colorado, a person commits first degree (felony) murder when:
Acting either alone or with one or more persons, he or she commits or
attempts to commit . . . robbery, and, in the course of or in furtherance of
the crime that he or she is committing or attempting to commit, or of
immediate flight therefrom, the death of a person, other than one of the
participants, is caused by anyone.
Section 18-3-102(1)(b), C.R.S. (2015). A robbery is committed when a “person
knowingly takes anything of value from a person or presence of another by the use of
force, threats, or intimidation.” C.R.S. § 18-4-301(1). A robbery is aggravated when the
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perpetrator: “is armed with a deadly weapon with intent, if resisted to kill, maim, or
wound the person robbed. . .” § 18-4-302(1)(a), C.R.S. (2015), or, “knowingly wounds or
strikes the person robbed . . . with a deadly weapon.” § 18-4-302(1)(b) (2015). The jury
was instructed on the elements of the charged crimes under Colorado law.25
There was sufficient evidence at trial to support a reasonable inference by the
jury that Applicant and the co-defendant (the shooter) intended to obtain drugs from the
victim by using force (i.e, scaring the victim with a gun), if necessary, and that the codefendant shot the victim with a gun during commission of the robbery.26 As such,
Applicant’s conviction for aggravated robbery did not violate due process and, under
the state felony murder and complicity statutes, Applicant was liable for any death that
occurred in the commission of the aggravated robbery.
I find and conclude that the Colorado Court of Appeals’ determination was not
contrary to, or an unreasonable application of Supreme Court law. The jury instruction
on complicity, when considered together with the other instructions and the trial record,
did not result in a violation of Applicant’s federal due process rights. Therefore,
Applicant is not entitled to federal habeas relief for his second claim.
IV. COA & IFP
Under 28 U.S.C. § 2253(c)(2), this Court may issue a certificate of appealability
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when a prisoner demonstrates that jurists of

25

See State Court R., Court File, Jury Instructions 9-10, 12-22.

26

See id. 1/13/98 Trial Tr. at 90-109, 190-93, 205-06, 219-221, 224-26, 244; 1/14/98 Trial Tr. at

40-44.

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reason would find it debatable that a constitutional violation occurred, and that the
district court erred in its resolution. Mr. Fisher has not made a substantial showing of
the denial of a constitutional right. Therefore, a certificate of appealability is denied.
Under 28 U.S.C. § 1915(a)(3), the court certifies 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
Mr. Fisher files a notice of appeal, he also must pay the full 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.
V. ORDERS
THEREFORE, IT IS ORDERED as follows::
1. That the Application for a Writ of Habeas Corpus 2254 [# 1], filed on January
22, 2013, by Applicant, Michael Fisher, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C.
§ 2253(c); and
4. That leave to proceed in forma pauperis on appeal is DENIED without
prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal
in the United States Court of Appeals for the Tenth Circuit.

Dated August 26, 2015, at Denver, Colorado.

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BY THE COURT:

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