Dixon v. Hartley et al

Filing 43

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Chief Judge Marcia S. Krieger on 8/28/14. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-02174-MSK

ROBERT H. DIXON,
Applicant,
v.
STEVE HARTLEY, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant, Robert H. Dixon, has filed, pro se, an Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 21) challenging the validity of his
criminal conviction in the District Court of Denver, Colorado. Respondents have filed an
Answer (ECF No. 34), and Applicant has filed a Reply (ECF No. 42). Having considered the
same, along with the state court record, the Court will deny the Application.
I. BACKGROUND
Applicant’s first trial, in Denver County District Court Case No. 06CR3022, ended in a
hung jury and mistrial. (ECF Nos. 15-1, at 6; 15-12, at 14). Following a second jury trial,
Applicant was convicted of first degree sexual assault. (ECF No. 15-1, at 9). He was
adjudicated a habitual offender and sentenced to a 48-year prison term in the Colorado
Department of Corrections. (Id.).
The Colorado Court of Appeals affirmed Applicant’s convictions and sentence on direct
appeal in People v. Dixon (Dixon I), No. 07CA1158 (Colo. App. Sept. 10, 2009) (unpublished

decision). (Doc. No. 15-11). The Colorado Supreme Court denied Applicant’s request for
certiorari review on December 21, 2009. (ECF No. 15-9).
On April 12, 2010, Applicant filed a motion for sentence reconsideration pursuant to
Colo. R. Crim. P. 35(b), which was denied by the state district court on July 7, 2010. (ECF No.
15-1, at 3). Applicant did not appeal that order.
On December 30, 2010, Applicant filed a motion for post-conviction relief pursuant to
Colo. R. Civ. P. 35(c), which the state district court denied summarily on April 1, 2011. (Id. at
2; ECF No. 15-8). The Colorado Court of Appeals affirmed the district court’s order in People
v. Dixon (Dixon II), 11CA0942 (Colo. App. Oct. 18, 2012) (unpublished). (ECF No. 15-6).
The Colorado Supreme Court denied certiorari review on June 24, 2013. (ECF No. 15-4).
Applicant initiated this action on August 14, 2013. He filed an Amended Application on
January 24, 2014. (ECF No. 21). The Court discerns the following claims from the Amended
Application:
1) Prosecutorial misconduct, in violation of Applicant’s due process rights, as
evidenced by: (a) the prosecution’s strikes of “all African-Americans and women
gender” from the panel, leaving an “all white jury with only one women [sic]” (id.
at 7); (b) the fact that the Sexual Assault Nurse Examiner (SANE) who examined
the victim: (i) changed her testimony between the first and second trial, and
thereby “exaggerat[ed] the severity of [her] evidentiary medical findings” (id. at
5); and, (ii) “alter[ed] a diagram she had prepared and used in the first trial,” to
show “more cuts and injury’s [sic] to the victim’s labia.” (id.); (c) the
prosecution’s introduction of “false evidence” namely, crime scene photos alleged
to have been, but actually were not, taken by the original detective (id. at 6); (d)
the prosecution’s handling of other act evidence – namely, (i) mentioning, during
opening statement, that Applicant had sexually assaulted two other victims
(without the benefit of an immediate curative instruction) (id. at 7); (ii) asserting
that the other sexual assaults happened in the same way as the charged crime
(id.); and, (iii) suggesting, during cross-examination of Applicant, that he had
sexually assaulted two other victims (id. at 6); (e) the prosecution’s closing
argument, which: (i) falsely exaggerated the SANE’s findings (id. at 6) (e.g.,
arguing that the victim’s vagina was “shredded” and “torn open from top to
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bottom”); (ii) improperly stated that the jurors would have felt “cheated” if the
prosecution had not introduced evidence of applicant’s prior sexual assaults, as it
had discussed in opening statements (id. at 8); and, (iii) “[w]hat you have heard
from SM confirmation by nurse Marquez tells you this was not consensual
intercourse” (id.); and, (f) cumulative error (id.).
2) The trial court violated Applicant’s due process rights when: (a) an expert
prosecution witness who did not testify at the first trial testified at the second,
even though the expert was not endorsed properly and the defense was
unprepared for his testimony (ECF No. 21, at 8); (b) the SANE testified “as an
expert on physical trauma without having any expertise in [the] field” (id. at 9);
(c) the trial court excluded evidence that: (i) a witness, Ms. E, who testified at the
first trial that the victim’s car was stolen, had since admitted that the victim gave
Ms. E permission to use the car (id. at 9), and, (ii) the victim’s vaginal injury
could have been caused by a sexual encounter she had with another person
“within hours” of having sex with Applicant (id.); (d) the trial court erroneously
admitted another sexual assault (i) in the absence of proof that Applicant actually
committed that assault (id. at 9-10); and, (ii) that, being nearly 20 years old, was
too remote in time and unduly prejudicial (id. at 10); (e) the trial court ruled that
counsel appointed to investigate the validity of Applicant’s prior convictions,
alleged as habitual criminal counts, could not represent Applicant in the habitual
criminal adjudication (id. at 10); (f) the trial court refused to appoint new counsel
after Applicant complained “numerous times that his counsel would not listen to
him and refused to let him participate in any way in his own defense” (id.); (g) the
trial court refused to conduct a proportionality review (id. at 11); and, (h)
cumulative error (id.).
3). Trial counsel was ineffective in failing to: (a) introduce and use evidence of
the alleged victim’s clothing to prove that the victim was not dragged 10 feet
through dirt and grass, held down, and assaulted; (b) introduce the victim’s
videotaped statement to the police in which she admitted to having consented to
having sex with the Applicant; (c) investigate and use telephone records to show
that the victim and her friend were in contact with the Applicant the day of the
assault, and afterward; (d) introduce preliminary hearing transcripts to impeach
the victim’s testimony; and, (e) introduce Nurse Marquez’s prior statements into
evidence that she did not know how the victim’s injury occurred. (ECF No. 21, at
11-13).
4). Trial counsel was ineffective in failing to: (a) interview or subpoena Detective
Castro to testify at trial that he did not believe that a crime had been committed;
(b) investigate and call the victim’s friend, a known prostitute, as a witness to
testify that on the night of the assault she and the victim had been drinking and
smoking crack cocaine, and that the victim had engaged in prostitution; (c)
investigate witnesses John L. and Suzanne S. “on behalf of the petitioner[‘s]
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defense and credibility”; (d) endorse and use a criminal investigator; and, (e)
endorse a physical trauma expert to evaluate and testify about the physical
evidence. (Id. at 13-14).
5). Trial counsel was ineffective in: (a) suggesting that Applicant was guilty of
the sexual assault; (b) communicating privately with a juror; (c) failing to
impeach the victim after she committed perjury; (d) failing to impeach witness
Detective Colaizzi after he lied about not having video evidence that would have
exonerated Applicant; (e) failing to adequately cross-examine Officer Ortega
about the victim’s statements to him; (f) bringing up “the pet criminal past” to the
jury; (g) failing to make objections to certain evidence and to prosecutorial
arguments; (h) refusing Applicant access to discovery; (i) failing to advise
Applicant whether to testify on his own behalf at trial and in the habitual criminal
trial; (j) in continuing to represent Applicant even though there was a conflict-ofinterest and in failing to advise the court that a different attorney was representing
Applicant in the habitual criminal proceeding; and, (k) failing to conduct an
investigation and present mitigating evidence. (Id. at 15-17). Direct appeal
counsel was constitutionally ineffective in failing to present on appeal numerous
constitutional errors that occurred at Applicant’s trial. (Id. at 18). The evidence
to support the sexual assault conviction was insufficient because the prosecution
relied on inadmissible other acts evidence and prejudicial arguments to convict
Applicant. (Id.). The habitual criminal convictions were unconstitutionally
obtained. (Id.).
On September 23, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to file a
pre-answer response addressing the affirmative defenses of timeliness and exhaustion of state
court remedies. Respondents filed a Pre-Answer Response on November 4, 2013. (ECF No.
15). Magistrate Judge Boland thereafter directed Applicant o file an Amended Application,
which Applicant filed on January 24, 2014. (ECF Nos. 18, 21). Respondents filed an Amended
Pre-Answer Response (ECF No. 25) on January 30, 2014. In the Amended Pre-Answer
Response, Respondents conceded the timeliness of the Application under the one-year limitation
period set forth in 28 U.S.C. § 2244(d)(1). (See id. at 5-6). Respondents further conceded that
Mr. Dixon exhausted state remedies for sub-claims 1(b)(i), 1(b)(ii), 1(e)(i), and 2(c)(ii). (Id. at
21). Respondents contended, however, that the remainder of Applicant’s claims were barred

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from federal habeas review based on the doctrines of procedural default and anticipatory
procedural default. (Id. at 19-36).
In a previous Order, the Court dismissed the following sub-claims as procedurally barred:
1(a), 1(c), 1(d)(i), 1(d)(ii), 1(d)(iii), 1(e)(ii), 1(e)(iii), 2(a), 2(b), 2(c)(i), 2(c)(ii) (violation of
Sixth Amendment confrontation rights), 2(d)(i), 2(d)(ii), 2(e), 2(f), 2(g), 2(h) (except for the
allegations raised in sub-claim 2(c)(ii), which will be addressed on the merits as part of the
cumulative error claim raised in sub-claim 1(f)); and, claims 3, 4, and 5 in their entirety. (ECF
No. 37). Respondents filed an Answer to properly exhausted sub-claims 1(b)(i), 1(b)(ii), 1(e)(i),
and 1(f) (except for the allegations in sub-claim 1(d)(iii)), and 2(c)(ii) (violation of constitutional
right to present a defense). (ECF No. 34). Applicant thereafter filed a Reply. (ECF No. 42).
The Court addresses the merits of Applicant’s properly exhausted claims 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).
The court reviews claims of legal error and mixed questions of law and fact pursuant to
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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 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
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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
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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)).
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

8

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). Pro se status does not entitle a litigant
to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
III. ANALYSIS
A. Sub-claims 1(b)(i) and 1(b)(ii)
In sub-claim 1(b), Applicant asserts that his due process right to a fair trial was violated
when the Sexual Assault Nurse Examiner (SANE) who examined the victim: (i) changed her
testimony between the first and second trial, and thereby “exaggerat[ed] the severity of [her]
evidentiary medical findings” (ECF No. 21, at 5); and, (ii) “alter[ed] a diagram she had prepared
and used in the first trial,” to show “more cuts and injury’s [sic] to the victim’s labia.” (Id.).
The Tenth Circuit has summarized the case law governing § 2254 claims involving the
admission of evidence that is alleged to have been so unfairly prejudicial as to violate due
process:
In Payne v. Tennessee, 501 U.S. 808, 825 (1991), the Supreme Court held that
when a state court admits evidence that is “so unduly prejudicial that it renders
the trial fundamentally unfair, the Due Process Clause of the Fourteenth
Amendment provides a mechanism for relief.” And in Estelle v. McGuire, 502
U.S. 62, 67-68 (1991), the Court made clear that this principle holds true
regardless of whether the evidence at issue was properly admitted pursuant to
state law.
Lott v. Trammell, 705 F.3d 1167, 1190-1191 (10th Cir. 2013) (parallel citations omitted).
See also Lisenba v. California, 314 U.S. 219 (1941) (“In order to declare a denial of [due
process] we must find that the absence of [fundamental] fairness fatally infected the trial; the acts

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complained of must be of such quality as necessarily prevents a fair trial.”).
“Inquiry into fundamental fairness requires examination of the entire proceedings,
including the strength of the evidence against the petitioner . . . .” Le v. Mullin, 311 F.3d 1002,
1013 (10th Cir. 2002) (citing Donnelly v. DeChristophoro, 416 U.S. 637, 643 (1974)). Further,
“because a fundamental fairness analysis is not subject to clearly definable legal elements, when
engaged in such an endeavor a federal court must tread gingerly and exercise considerable self
restraint.” Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (internal quotation marks
omitted). Finally, a federal habeas petitioner is not entitled to relief for a constitutional violation
that occurred during a state criminal proceeding unless “the . . . error [at issue] ‘had substantial
and injurious effect or influence in determining the jury's verdict.’” Brecht v. Abrahamson, 507
U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
On direct appeal, the Colorado Court of Appeals rejected Applicant’s allegations in subclaim 1(b)(i) on the following grounds:
The SANE nurse described S.M.’s injuries similarly at both trials.
Although her testimony in the first trial was less clear as to which vaginal tears
she observed with her naked eye and which injuries were visible with the
colposcope, she did not say that she could only see the injuries with the
colposcope. That her testimony at the second trial was clearer does not mean that
she changed or exaggerated it.
(Dixon I, ECF No. 15-11, at 5).
The CCA denied relief for sub-claim 1(b)(ii) based on the following reasoning:
The SANE nurse also used the same diagram at both trials to show the location
and extent of S.M.’s injuries. Contrary to the [Applicant’s] argument that she
enhanced the diagram at the second trial, the record shows that she marked the
diagram at the first trial and testified to those markings at the second.
(Id.).

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The state appellate court’s factual findings are presumed correct and are supported by the
state court record. (See State Court R., 2/6/07 Trial Tr., at 87, 88, 92-94; 4/17/07 Trial Tr., at
25-26, 30-34). Applicant does not point to any clear and convincing evidence that the SANE
altered her testimony, or the evidence, between the first and second trials. Further, the SANE’s
testimony was probative of the extent of the victim’s injuries. Accordingly, the Court finds that
the Colorado Court of Appeals’ determination of Applicant’s claim was reasonable in light of the
evidence presented at trial. Further, Applicant has failed to show that the SANE’s testimony at
the second trial had a substantial and injurious effect on the jury’s verdict. Sub-claims 1(b)(i)
and 1(b)(ii) will be dismissed.
B. Sub-claim 1(e)(i)
In sub-claim 1(e)(i), Applicant contends that he was prejudiced at trial when the
prosecutor remarked during opening statement that the victim’s vagina was “shredded” and “torn
open from top to bottom” (ECF No. 21, at 6; see also ECF No. 15-12, at 15), and argued in
closing that SM was “ripped open the size of her thumb, some of the worst injuries that [the
SANE] has seen in her 35 plus years as a nurse.” (ECF No. 15-12, at 15).
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 , 416 U.S. at 643); 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.”).
To establish that a prosecutor's remarks were so inflammatory that they prejudiced substantial
rights, a petitioner must overcome a high threshold: he or she must demonstrate either persistent

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and pronounced misconduct or that the evidence was so insubstantial that absent the remarks, the
jury would not have convicted. Berger v. United States, 295 U.S. 78, 89 (1935). 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)).
In Dixon I, the Colorado Court of Appeals, reviewing for plain error, found no merit to
Applicant’s claim based on the following reasoning:
Among other things, the [SANE] testified that in her opinion the injuries
the victim sustained to her vaginal area resulted from “forceable intercourse”
because “there [were] three separate areas of injury,” which included a fivecentimeter laceration that “was a little longer than [she] generally saw.” She also
testified that in her thirty-five-year experience as a nurse, “[y]ou usually don’t get
tears when . . . [intercourse is] consensual.”
Anticipating this evidence, the prosecutor commented in opening
statement at the second trial, “[The victim] was torn up pretty much from top to
bottom. Her vagina was shredded by the actions of this defendant when he raped
her.” In closing argument, the prosecutor states that “[the victim] was ripped
open the size of her thumb, some of the worst injuries that [the SANE] has seen in
her 35 plus years as a nurse.” Although the prosecutors’ statements about the
evidence were not entirely accurate, they were mentioned only briefly and did not
severely embellish the SANE nurse’s testimony. As a whole, the statements did
not deprive [Applicant] of his right to a fair trial. [Internal state case law citations
omitted].
Therefore, we conclude that the prosecutors’ statements did not constitute
prosecutorial misconduct. And, even if the statements constituted error, it was
not egregious and did not so undermine the fundamental fairness of the trial as to
case serious doubt on the reliability of the judgment of conviction.
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(ECF No. 15-11, at 5-7).
The state court record reflects that the prosecutor exaggerated the SANE’s testimony on
two specific occasions - once during opening statement, and, again in closing argument. (Trial
Court R., 4/16/07 Trial Tr., at 230; 4/18/07 Trial Tr. at 103). However, the jury heard the
testimony of the SANE and was able to determine whether the prosecutor’s characterization of
that testimony was inaccurate. Further, the trial court instructed the jury to decide the case based
on the evidence presented. (State Court R., Court File, Jury Instruction No. 1, at 325-326). And,
there was significant evidence in the record – specifically the victim’s testimony, which was
corroborated by her physical injuries– to support the jury’s guilty verdict. (See 4/17/07 Trial Tr.,
at 25-33, 182-195). Accordingly, it was reasonable for the state appellate court to determine
that, in the context of the entire trial, the prosecutor’s isolated remarks did not substantially
influence the jury’s verdict. See Donnelly, 416 U.S. at 646-47 (recognizing that while
“consistent and repeated misrepresentation” of evidence “may profoundly impress a jury and
may have significant impact on the jury’s deliberations[,]” . . . “[i]solated passages of a
prosecutor’s argument, billed in advance to the jury as a matter of opinion and not evidence, do
not reach the same proportions.”). See also Wilson v. Sirmons, 536 F.3d 1064, 1117 (10th Cir.
2008) (concluding that prosecutor’s minor misstatement of the evidence in a trial where there
was overwhelming evidence of the petitioner’s guilt did not violate due process); United States
v. Batton, No. 13-8017, 527 F. Appx. 686, 689 (10th Cir. June 5, 2013) (unpublished)
(prosecutor’s misstatement of the evidence on one occasion did not influence the jury’s verdict
where abundant evidence supported the defendant’s conviction). The state appellate court’s
resolution of Applicant’s claim “was [not] so lacking in justification that there was an error well

13

understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Richter, 131 S. Ct. at 786-787.
Further, the prosecutor’s comments did not have a substantial and injurious effect on the
jury’s verdict. See Brecht, 507 U.S. at 623. As discussed above, SM’s testimony that she was
sexually assaulted was corroborated by her injuries and other witnesses testified that Applicant
had committed two similar rapes in the past. (State Court R., 4/17/07 Trial Tr., at 239-253;
4/18/07 Trial Tr., at 7-32). In light of the strength of the prosecution’s case, it is not plausible
that the prosecution’s exaggeration of SM’s injuries “tipped the scales in favor of the
prosecution.” Hoxie v. Kerby, 108 F.3d 1239, 1245 (10th Cir. 1997). Sub-claim 1(e) will be
dismissed.
C. Sub-claim 2(c)(ii)
In claim 2(c)(ii), Applicant contends that the trial court’s exclusion of evidence that the
victim had sex with her boyfriend 24-26 hours before the rape deprived him of the constitutional
right to present a defense. Applicant asserts that the excluded evidence would have established
an alternate cause of the victim’s vaginal injuries.
Before trial, the defense filed a motion to admit evidence of the victim’s prior sexual
conduct. (State Court R., Court File, at 255-57). The trial court excluded the evidence under
Colorado’s Rape Shield statute COLO. REV. STAT. (C.R.S.) § 18-3-407 (2008). (ECF No. 1511, at 8; ECF No. 15-12, at 23-24). The purposes of the Colorado rape shield statute are to
protect rape and sexual assault victims from humiliating “fishing expeditions” into their past
sexual conduct, see People v. Murphy, 919 P.2d 191, 194 (Colo. 1996); to overcome victims'
reluctance to report incidents of sexual assault; and to protect victims from “psychological or

14

emotional abuse in court as the price of their cooperation in prosecuting sex offenders.”
Colorado v. McKenna, 585 P.2d 275, 278 (1978). The statute creates a rebuttable presumption
that such evidence is irrelevant. See § 18-3-407(1), C.R.S.
A defendant's rights to due process and compulsory process include the right to present
witnesses in his or her own defense. Washington v. Texas, 388 U.S. 14, 18-19 (1967). The
Supreme Court has acknowledged that rape shield laws may implicate the Sixth Amendment
because, “[t]o the extent that [they] operate[ ] to prevent a criminal defendant from presenting
relevant evidence, the defendant's ability to confront adverse witnesses and present a defense is
diminished.” Michigan v. Lucas, 500 U.S. 145, 149 (1991). However, legitimate state interests
behind a rape shield statute such as giving rape victims heightened protection against “surprise,
harassment, and unnecessary invasions of privacy” may allow the exclusion of relevant evidence
if the state's interests in excluding the evidence outweigh the defendant's interests in having the
evidence admitted. Id. at 150-52. To determine whether a petitioner was unconstitutionally
denied his right to present relevant evidence, the federal habeas court “must balance the
importance of the evidence to the defense against the interests the state has in excluding the
evidence.” Richardson v. Embry, 122 F.3d 866, 872 (10th Cir. 1997). “[T]he state may not
arbitrarily deny a defendant the ability to present testimony that is ‘relevant and material, and . . .
vital to the defense.’” Richmond, 122 F.3d at 872 (quoting United States v. Valenzuela-Bernal,
458 U.S. 858, 867 (1982)) (further quotation omitted). The constitutional right to present a
defense is not violated unless the habeas petitioner demonstrates a denial of fundamental fairness
at trial – i.e., that the excluded evidence would have created a reasonable doubt that would not
otherwise have existed. Id.

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In Dixon I, the Colorado Court of Appeals recognized that the “right to present a defense
is fundamental, but not absolute.” (ECF No. 15-11, at 7). The state appellate court then rejected
Applicant’s claim based on the following grounds:
Here, [Applicant] sough to admit evidence of S.M.’s prior sexual conduct
that he alleged was relevant to a material issue in the case, namely an alternative
explanation for the victim’s injuries. He argued that S.M.’s injuries could have
been caused by the cumulative effect of engaging in consensual sex with her
boyfriend shortly before her encounter with [Applicant], which he alleged was
also consensual. The trial court denied the motion, relying on [People v.] Harris,
[43 P.3d 221, 225 (Colo. 2002)], and finding that such evidence was not logically
relevant to the consent issue.
We agree with the trial court that Harris is dispositive here. As in Harris,
the [Applicant’s] defense theory was consent. The supreme court found that
considering Harris’s consent theory and the nurse’s testimony that consensual
intercourse could cause an abrasion, evidence of the victim’s consensual
intercourse with her boyfriend was not logically relevant to whether Harris
forcefully sexually assaulted the victim. See Harris, 43 P.3d at 226. Likewise,
[Applicant] here was unable to preliminarily show relevance sufficient to admit
this evidence under the rape shield statute.
Further, as in Harris, [Applicant] elicited testimony from the SANE nurse
that, while not usual, vaginal injuries could be caused by consensual sex. See id.
Thus, the trial court did not err in excluding the proffered evidence.
(Id. at 8-10).
Applicant has failed to explain how evidence of the victim’s prior consensual sexual
activity was relevant to his defense that he and the victim engaged in consensual sexual
intercourse. Stated otherwise, the evidence did not tend to disprove that he sexually assaulted
the victim. Further, Applicant was not foreclosed from questioning the SANE nurse concerning
her examination findings. Because the evidence was not material, the state trial court’s
application of the Colorado rape shield statute “did not deprive [him] of significant, exculpatory
evidence.” See Romano v. Gibson, 239 F.3d 1156, 1168 (10th Cir. 2001) (citing Richmond and

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Valenzuela-Bernal, 458 U.S. at 867). Accordingly, sub-claim 2(c)(ii) is without merit and will
be dismissed.
D. Sub-claim 1(f)
Applicant asserts cumulative error in sub-claim 1(f). (ECF No. 21, at 8). Specifically, he
argued on direct appeal that if the issues raised in exhausted sub-claims 1(b)(i), 1(b)(ii), 1 (e)(i)
and 2(c)(ii) did not individually require reversal, they accumulated to require reversal. (ECF No.
15-12, at 25-30).
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 . .

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. 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.
In Dixon I, the Colorado Court of Appeals rejected the cumulative error claim on the
basis that there were “no errors in the prosecution’s presentation of the evidence and the trial
court’s refusal to admit evidence of the victim’s intimate relationship with her boyfriend, none of
the claimed errors prejudiced Applicant.” (ECF No. 15-11, at 10). Because this Court has
upheld the state appellate court’s disposition of Applicant’s claims under the AEDPA standard
of review, there were not two or more constitutional errors at Applicant’s trial that would
warrant a cumulative error analysis. As such, Mr. Dixon cannot show that the state appellate
court’s rejection of his claim was contrary to, or an unreasonable application of, federal law. See
Stouffer v. Trammell, 738 F.3d 1205, 1229 (10th Cir. 2013).

IV. ORDERS
For the reasons discussed above, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 21), filed by Robert H. Dixon, on January 24, 2014, is DENIED and
this action is DISMISSED WITH PREJUDICE. It is

FURTHER ORDERED that no certificate of appealability shall issue because Applicant
has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. §

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2253(c)(2); Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts; Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be
taken in good faith See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a
notice of appeal he must also pay the full $505 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.
Dated August 28, 2014, at Denver, Colorado.

BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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