Hoeck v. Timme et al
ORDER re: 1 Application for Writ of Habeas Corpus, filed by David B. Hoeck on September 19, 2013, is DENIED and this action is DISMISSED WITH PREJUDICE. It is FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The Cou rt 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., by Judge William J. Martinez on 4/21/2014. (evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-02575-WJM
DAVID B. HOECK,
RAE TIMME, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Applicant, David B. Hoeck, has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction
in the District Court of Mesa County, Colorado. Respondents have filed an Answer
(ECF No. 19), and Applicant has filed a Reply (ECF No. 21). Having considered the
same, along with the state court record, the Court will deny the Application.
On July 18, 2008, Mr. Hoeck was convicted by a jury of possession of a
scheduled II controlled substance (cocaine) with intent to distribute in Mesa County
District Court Case No. 07CR1572. (ECF No. 12-1, at 8). He was sentenced the same
day to an eighteen-year prison term with the Colorado Department of Corrections. (Id.
The Colorado Court of Appeals affirmed Mr. Hoeck’s conviction on direct appeal
in People v. Hoeck (Hoeck I), No. 08CA1829 (Colo. App. Dec. 10, 2009) (unpublished
decision). (ECF No. 12-4). The state appellate court summarized the relevant facts as
Officers were dispatched to [Applicant’s] house based on a
report from neighbors of a verbal disturbance. As the officers
approached the house, they heard two men arguing inside. Once
inside the fence surrounding the house, the officers could hear
without any listening device that the conversation involved
narcotics. One of the officers, Officer R., recorded approximately
ten minutes of the conversation with a portable tape recorder.
In the recording, [Applicant] made the following statements:
• “I sell for a hundred a gram and . . . eight balls for a buck 50.”
• “If they come here and that’s my customer, they’re mine.”
• “I will never sell to your customers.”
• “[Selling drugs to customers is] what pays for my bills.”
The officers then took the recording to the street crimes unit. After
reviewing the recording, an officer with that unit obtained a no-knock
search warrant for [Applicant’s] house. The next morning, officers
executed the warrant. [Applicant] and his roommate were at home and
were subsequently arrested.
The officers seized numerous items of drug paraphernalia
throughout the house and in the trash can outside. Although many of the
items seized contained only residue amounts of a substance which tested
positive for cocaine, a bag was found in the trash can outside [Applicant’s]
house containing .03 grams of cocaine and a measuring cup containing
.02 grams of cocaine was found near the bed in [Applicant’s] roommate’s
(ECF No. 12, at 2-3). The Colorado Supreme Court denied Applicant’s request for
certiorari review on April 5, 2010. (ECF No. 12-6).
Mr. Hoeck filed a motion for sentence reconsideration on August 18, 2010, which
the trial court denied on August 24, 2010. (ECF No. 12-1, at 6). Applicant did not file
Mr. Hoeck filed a motion for post-conviction relief pursuant to Colo. R. Civ. P.
35(c) on April 6, 2011, which was denied by the trial court. (Id. at 6). The Colorado
Court of Appeals affirmed the trial court’s order in People v. Hoeck (Hoeck II),
11CA1057 (Colo. App. Dec. 13, 2012) (unpublished). (ECF No. 12-9). The Colorado
Supreme Court denied certiorari review on August 26, 2013. (ECF No. 12-11).
Mr. Hoeck initiated this action on September 19, 2013. He asserts the following
claims in the Application:
(1) the trial court’s failure to suppress the taped conversation between
Applicant and his roommate violated Applicant’s constitutional rights and
the [Colorado] wiretapping and eavesdropping act (ECF No. 1, at 2-3);
(2) the evidence was insufficient to support Applicant’s conviction (id. at 4);
(3) the trial court abused its discretion by allowing a prosecution witness to
opine about what quantity of drugs constitutes a distributable amount (id.
(4) the trial court abused its discretion by imposing an aggravated range
sentence (id. at 6);
(5) the no-knock warrant was not supported by reasonable justification, in
violation of the Fourth Amendment (id. at 6);
(6) trial counsel committed numerous errors that cumulatively constituted
ineffective assistance of counsel, by failing to: (a) properly investigate and
prepare for trial; (b) interview and call critical alibi witnesses; (c)
investigate Applicant’s competency; (d) explore other viable defenses; (e)
keep Applicant apprised of the case; (f) consult with an expert witness
concerning Applicant’s mental condition; (g) adequately litigate a motion to
suppress; (h) have the drugs independently weighed and tested; and, (i)
have an expert analyze the recording of Applicant’s conversation with his
roommate (id. at 7-8);
(7) trial counsel was ineffective by failing to adequately litigate a Fourth
Amendment claim (id. at 8-11);
(8) trial counsel was ineffective by failing to investigate Applicant’s
competency (id. at 11-13);
(9) trial counsel was ineffective by failing to consult with expert witnesses
concerning Applicant’s competency (id. at 13-14);
(10) trial counsel was ineffective by failing to have the drugs independently
weighed and tested (id. at 15);
(11) trial counsel was ineffective by failing to have an expert review the
recording of Applicant’s conversation with his roommate (id.);
(12) trial counsel was ineffective by failing to explore other viable defenses
(id. at 15-17);
(13) trial counsel was ineffective by failing to apprise Applicant of the
progress of the case (id. at 17-18);
(14) trial counsel was ineffective by failing to interview and present
character witnesses at the sentencing hearing (id. at 18);
(15) the trial court’s Fourth Amendment findings and conclusions
constituted an abuse of discretion (id. at 18-20);
(16) the trial court abused its discretion by failing to have Applicant’s
competency evaluated (id. at 20);
(17) the trial court abused its sentencing discretion by imposing different
sentences on Applicant and the co-defendant (id. at 20-21); and,
(18) counsel was ineffective due to a conflict of interest regarding
applicant’s religious beliefs (id. at 21).
On October 16, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to
file a preliminary response addressing the affirmative defenses of timeliness and
exhaustion of state court remedies. In the preliminary response, Respondents
conceded that the Application was timely under the one-year limitation period set forth
in 28 U.S.C. § 2244(d)(1). (ECF No. 12, at 4-4). Respondents further conceded that
Mr. Hoeck exhausted state remedies for part of claim 1, claims 2, 5, 6, part of claim 7,
claim 9, part of claim 10, part of claim 11, and part of claim 12. Respondents argued,
however, that Applicant did not exhaust state court remedies for claims 8 and 14
because he failed to present those claims to the Colorado Supreme Court in a petition
for certiorari review. Respondents also contended that the remainder of Mr. Hoeck’s
claims were procedurally defaulted and that some of the claims presented issues of
state law only that were not remediable under 28 U.S.C. § 2254.
In a previous Order, the Court dismissed the following claims for failure to
present federal issues cognizable under § 2254: the allegations in claim 1 challenging
the trial court’s failure to suppress the taped conversations between Applicant and his
roommate as a violation of the Colorado wiretapping and eavesdropping act; claim 3;
and, claim 4. The Court also dismissed claims 16 and 17 as procedurally barred. The
Court ordered Respondents to file an Answer, within thirty (30) days, to the exhausted
claims (part of claim 1, claims 2, 5, 6, part of claim 7, claims 8 and 9, part of claim 10,
part of claim 11, part of claim 12 and claims 13, 14 and 15) and to address whether the
unexhausted ineffective assistance of counsel allegations in the remainder of claims 7,
10, 11, and 12, and in claim 18, have substantial merit under Martinez v. Ryan,
, 132 S.Ct. 1309 (2012). The Court addresses Applicant’s remaining 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
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.
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). Pro se status does not entitle Applicant to an application of
different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
A. Claims One and Fifteen
Remaining for merits disposition is Applicant’s allegation in claim one that the trial
court’s failure to suppress the taped conversations between Applicant and his
roommate violated the Fourth Amendment. In claim fifteen, Applicant challenges the
trial court’s Fourth Amendment findings and conclusions in denying his motion to
The Fourth Amendment protects against unreasonable search and seizure and is
generally enforced through the exclusionary rule. See, e.g., Illinois v. Gates, 462 U.S.
213, 254 (1983); Stone v. Powell, 428 U.S. 465, 482-87 (1976). In Stone, the Supreme
Court limited federal habeas review for alleged Fourth Amendment violations based on
the Court’s determination that any additional contribution gained from consideration of
search-and-seizure claims of state prisoners on collateral review is small in relation to
the associated costs. 428 U.S. at 493-94. The Court held that “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at his trial.” Stone,
428 U.S. at 494.
The Supreme Court has not defined precisely the phrase “opportunity for full and
fair litigation.” See Gamble v. State of Oklahoma, 583 F.2d 1161, 1164 (10th Cir. 1978).
In Gamble, the Tenth Circuit determined that the phrase:
includes, but is not limited to, the procedural opportunity to raise or
otherwise present a Fourth Amendment claim. It also includes the
full and fair evidentiary hearing contemplated by Townsend [v.
Sain, 372 U.S. 293 (1963)]. Furthermore, it contemplates
recognition and at least colorable application of the correct Fourth
Amendment constitutional standards.
Id. at 1165. “Thus, a federal court is not precluded from considering Fourth Amendment
claims in habeas corpus proceedings where the state court willfully refuses to apply the
correct and controlling constitutional standards.” Id.
The Fourth Amendment does not protect “[t]he risk of being overheard by an
eavesdropper or betrayed by an informer or deceived as to the identity of one with
whom one deals.” Hoffa v. United States, 385 U.S. 293, 303 (1966) (internal quotation
omitted). This is because such a risk “is probably inherent in the conditions of human
society. It is the kind of risk we necessarily assume whenever we speak.” Id. See also
Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes to
the public, even in his own home or office, is not a subject of Fourth Amendment
protection.”). Thus, “when a law enforcement officer is able to detect something by
utilization of one or more his senses while lawfully present at the vantage point where
those senses are used, that detection does not constitute a ‘search’ within the meaning
of the Fourth Amendment.” 1 W. LaFave, Search and Seizures: A Treatise on the
Fourth Amendment § 2.2, p.395 (3d ed. 1996). See also United States v. Llanes, 398
F.2d 880, 884 (2nd Cir. 1968) (rejecting defendant’s argument that officer who stationed
himself in apartment hallway and eavesdropped on defendant’s conversation violated
his right to privacy; “conversations carried on in a tone of voice quite audible to a person
standing outside the home are conversations knowingly exposed to the public”). Accord
United States v. Hessling, 845 F.2d 617, 629 (6th Cir. 1988) (recognizing that “there is
no reasonable expectation of privacy in a conversation that can be heard without the
assistance of an artificial device,” and affirming district court’s refusal to suppress
testimony about conversations overheard through common door between adjoining
motel rooms); United States v. Burns, 624 F.2d 95, 100 (10th Cir. 1980) (holding that
officer’s unaided eavesdropping outside of motel room’s hallway door did not violate the
Fourth Amendment; “to the extent [the occupants of a motel room] converse in a fashion
insensitive to the public, or semipublic, nature of walkways adjoining such rooms,
reasonable expectations of privacy are correspondingly lessened.”).
In this case, Applicant filed a motion to suppress the tape-recorded conversation.
(State Court R., Court File, at 27-28). Following a hearing, the trial court denied the
motion, finding that Applicant had no legitimate expectation of privacy in the
conversation with his roommate because he was speaking loudly enough that persons
outside his home could easily hear what he and his roommate were arguing about.
(2/1/08 Hrg. Tr., at 82-84).
On appeal, the Colorado Court of Appeals applied the following Fourth
In determining whether the Fourth Amendment warrant requirement
applies, the threshold issue is whether a particular governmental activity is
a “search” within the meaning of the Fourth Amendment. Its applicability
depends on whether the person invoking its protection can claim a
justifiable, reasonable, or legitimate expectation of privacy that has been
invaded by governmental action. People v. Hart, 787 P.2d 186, 187 (Colo.
“[W]hen a police officer overhears a conversation without the aid of
any listening device, from a vantage point at which he is legally present,
the officer’s use of his sense of hearing does not constitute a Fourth
Amendment search.” Id.
(Hoeck I, ECF No. 12-4, at 5).
The state appellate court found that the following evidence presented at the
suppression hearing supported the trial court’s finding that Applicant had no reasonable
expectation of privacy in his conversation with his roommate:
One of the officers who responded to [Applicant’s] house [Officer
Valdez] testified at the suppression hearing that (1) he approached
[Applicant’s] house in response to a report of a verbal disturbance from
that residence; (2) as he approached, he could hear the conversation from
the corner of the driveway, approximately twenty-five yards from
[Applicant’s] house; (3) the gate to the fence in the front yard was open;
(4) as he approached the front door, he heard that the conversation
involved narcotics and was an “argument about customers”; and (5)
Officer R[ojo] recorded the conversation from the porch eight to ten feet
from the window while keeping the recording device close to his body.
Thus, the officers were legally on [Applicant’s] property and were able to
hear the conversation outside the house clearly and unassisted by any
artificial listening device. Accordingly, [Applicant] had no reasonable
expectation of privacy with regard to the conversation. See Hart, 787 P.2d
at 187 (no reasonable expectation of privacy exists in a conversation that
can be heard without the assistance of an artificial listening device); see
also [Llanes, 398 F.2d [at] 884]; United States v. Jackson, 588 F.2d 1046,
1054 (5th Cir. 1979)(defendant in his motel room “assumed the risk of
being overheard by an eavesdropper and therefore had no justifiable
expectation of privacy as to their criminal conversations”).
(Id. at 6-7; see also State Court R., 2/1/08 Hrg. Tr.).
The Colorado Court of Appeals’ factual findings, which are supported by the
record of the suppression hearing, are presumed correct. Applicant bears the burden to
refute the findings with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Applicant asserts in his Reply that the state appellate court’s factual finding that “Officer
R. recorded the conversation from the porch eight to ten feet from the window while
keeping the recording device close to his body” is contrary to Officer Rojo’s statements
in his police report. (ECF No. 21, at 2). It is unclear from the state court record whether
the trial court considered Officer Rojo’s police report in ruling on the motion to suppress.
The federal habeas court does not consider information that was not presented to the
state courts. See Cullen, 131 S.Ct. at 1398. To the extent the state trial court
considered the non-testifying officer’s police report in deciding that the Fourth
Amendment was not implicated by the tape recording, there is nothing in that report to
clearly contradict the state appellate court’s factual findings. (See ECF No. 1-6, at 1).
Officer Rojo states only that Officer Valdez “motioned for [him] to bring [the digital voice
recorder] closer to the window, which [he] did.” (Id.). In any event, Officer Rojo could
hear the conversation without the aid of any listening device (id.), which was consistent
with the testimony of Officer Valdez at the suppression hearing.
The Court finds that the state court proceedings sufficed to provide Applicant with
an opportunity for full and fair litigation of his claim. See Smallwood v. Gibson, 191 F.3d
1257, 1265 (10th Cir.1999) (holding that petitioner was not entitled to habeas review of
Fourth Amendment claim where petitioner’s trial counsel informed the trial court of the
factual basis for a Fourth Amendment claim, appellate counsel presented the issue to
the state appellate court on direct appeal, and the state courts “thoughtfully considered
the facts underlying petitioner's Fourth Amendment claim” but rejected it on the merits
by applying appropriate Supreme Court precedents). The state courts relied on Fourth
Amendment precedent in resolving Applicant’s claim through federal and state case law
applying constitutional standards. See State Court R., 2/1/08 Hrg. Tr., at 28 (citing
People v. Terrazas-Urquidi, 172 P.3d 453 (Colo. 2007) (citing Fourth Amendment
principles and People v. Spies, 615 P.2d 710, 712 (Colo. 1980), citing Rakas v. Illinois,
439 U.S. 128 (1978), for the proposition that critical inquiry under Fourth Amendment is
whether the defendant had a legitimate expectation of privacy in the invaded place); see
also Hoeck I (ECF No. 12-4, at 6-7) (citing federal and state case law, including Hart,
787 P.2d at 187 (citing Smith v. Maryland, 442 U.S. 735 (1979) (recognizing that the
applicability of the Fourth Amendment depends on “whether the person invoking its
protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’
that has been invaded by governmental action.”) (internal citations omitted)). Claims
One and Fifteen will be dismissed.
For his second claim, Applicant asserts that the evidence was insufficient to
support his conviction because the prosecution “failed to present any evidence that he
possessed a distributable amount of cocaine or any evidence from which the jury could
infer that he intended to distribute the .02 or .03 gram of cocaine substance found in his
home.” (ECF No. 1, at 4).
A constitutional challenge to the sufficiency of the evidence is governed by
Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction
as a matter of due process if, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Coleman v. Johnson,
, 132 S.Ct. 2060,
2064 (2012) (quoting Jackson, 443 U.S. at 319) (emphasis in the original). The Court
looks at both direct and circumstantial evidence in determining the sufficiency of the
evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). A federal
habeas court’s review under Jackson is “sharply limited, and a court faced with a record
of historical facts that supports conflicting inferences must presume-even if it does not
affirmatively appear in the record-that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” Turrentine v. Mullin, 390
F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted). The Court “may
not weigh conflicting evidence nor consider the credibility of witnesses,” but must
“‘accept the jury's resolution of the evidence as long as it is within the bounds of
reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Grubbs v.
Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
In applying Jackson, the Court looks to state law to determine the substantive
elements of the offense. See Jackson, 443 U.S. at 324 n.16; Valdez v. Bravo, 373 F.3d
1093, 1097 (10th Cir. 2004).
The Colorado Court of Appeals applied a state law standard similar to the
Jackson standard (ECF No. 12-4, at 10), and rejected Applicant’s claim on the following
Section 18-18-405(1)(a) & (2)(a)(I)(A), C.R.S. 2009, provide that “it
is unlawful for any person knowingly to . . . possess, or to possess with
intent to . . . distribute a controlled substance” and that “any person who
violates any of the provisions of subsection (1) . . . commits . . . [a] class 3
felony; except that a person commits a class 4 felony if such violation is
based on the possession of a controlled substance listed in schedule II.”
Cocaine is a schedule II controlled substance. § 18-18-204(2)(a)(IV),
We conclude the evidence sufficiently supports the jury’s verdict
because, despite the small quantity involved, (1) it was undisputed
[Applicant] possessed .05 grams of cocaine; (2) [Applicant’s] roommate
testified at trial the voices on the recording were his and [Applicant’s]; (3)
[Applicant’s] statements in the recording indicated his intent to sell
cocaine; and (4) the officers seized numerous items commonly used in
distributing narcotics, including coin baggies, digital scales, a crack pipe,
straight razors, pieces of paper with lists of phone numbers, and various
items containing cocaine residue found throughout [Applicant’s] residence.
Cf. Richardson v. People, 25 P.3d 54, 55 (Colo. 2001)(“if the amount of
controlled substance that the defendant allegedly possessed is less than a
usable quantity, then the People must produce other evidence supporting
an inference that the defendant knew he possessed the substance”).
Moreover, the trial court instructed the jury on the lesser included
offense of possession of a schedule II controlled substance, which the jury
implicitly rejected in finding [Applicant] guilty of possession with intent to
We therefore conclude the evidence was sufficient to support
(Hoeck I, ECF No. 12-4, at 10-12).
Applicant does not point to any clear and convincing evidence to rebut the state
court’s factual findings which are presumed correct and are supported by the state court
record. (State Court R., 7/16/08 and 7/17/08 Trial Tr.). Instead, he argues that the .02
gram found in a measuring cup and the .03 gram found in a trash can outside his home
were not distributable amounts of cocaine. (ECF No. 1, at 4). However, the
prosecution’s expert witness in drug investigations, drug terminology, and distribution
quantities, testified that any amount of a drug that is distributed to someone else is a
distributable amount and what is a usable amount depends on the needs of a specific
user. (State Court R., 7/17/08 Trial Tr., at 103, 113-14, 132). Furthermore, the jury did
not base its verdict solely on the amount of cocaine found in Applicant’s home. The
evidence also included baggies containing residual amounts of cocaine and the drug
paraphernalia seized by police officers during a search of the Applicant’s residence,
Applicant’s statements to his roommate during the tape-recorded conversation in which
he expressed his intent to sell cocaine, and the expert’s opinion, based on the taperecorded conversation, that Applicant was involved in distributing cocaine (id. at 117).
Viewed in the light most favorable to the prosecution, the totality of the evidence
supported the jury’s conclusion beyond a reasonable doubt that Applicant possessed
with intent to distribute a Schedule II controlled substance – cocaine. The Court thus
finds that the state appellate court reasonably applied the Jackson standard in
determining that there was sufficient evidence presented at Applicant’s trial to support
his conviction. Applicant cannot prevail on his second claim.
C. Claim 5
In claim five, Applicant asserts that the no-knock warrant was not supported by
reasonable justification, in violation of the Fourth Amendment. Specifically, he
maintains that the officer’s statement concerning Applicant’s violent criminal history was
false and unsubstantiated, and that a no-knock entry was not justifiable solely on the
basis that drug evidence may be destroyed if the officers were required to knock and
announce their presence. (ECF No. 1, at 6-7).
The “‘knock and announce’ principle forms a part of the reasonableness inquiry
under the Fourth Amendment.” Wilson v. Arkansas, 514 U.S. 927, 929 (1995). “In order
to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking
and announcing their presence, under the particular circumstances, would be
dangerous or futile, or that it would inhibit the effective investigation of the crime by, for
example, allowing the destruction of evidence.” Richards v. Wisconsin, 520 U.S. 385,
394 (1997). “This showing is not high.” Id. “What the knock-and-announce rule has
never protected, however, is one’s interest in preventing the government from seeing or
taking evidence described in a warrant.” Hudson v. Michigan, 547 U.S. 586, 594 (2006).
As such, “[r]esort to the massive remedy of suppressing evidence of guilt is unjustified,”
id. at 599, and “the exclusionary rule is inapplicable.” Id. at 594.
Again, Applicant may not obtain relief from this federal habeas court if the State
provided him with an opportunity for full and fair litigation of the Fourth Amendment
claim. Stone, 428 U.S. at 494.
Before trial, Applicant filed motion to suppress the evidence seized from his
home pursuant to a search warrant on the ground that there was insufficient evidence to
establish the reasonable suspicion necessary to justify a “no knock” entry into his
residence. (State Court R., Court File, at 40-42). The trial court denied the motion,
concluding that the affidavit in support of the search warrant was supported by probable
cause and that there were sufficient exigent circumstances to support the no-knock
authorization, based on specific factual allegations in the affidavit to indicate that police
officers might reasonably be in danger if they were to knock and announce their
presence before entering Applicant’s home. (Id. at 108-111).
In Hoeck I, the Colorado Court of Appeals analyzed Applicant’s claim as follows:
Generally, the Fourth Amendment requires law enforcement
officers to knock and announce their presence when executing a warrant.
People v. Russom, 107 P.3d 986, 991 (Colo. App. 2004). “To justify a
no-knock entry, the police must have an objectively reasonable suspicion
that knocking and announcing their presence, under the particular
circumstances, would be dangerous or futile or that it would inhibit the
effective investigation of a crime by, for example, allowing the destruction
of evidence.” Id. at 990-91. The showing required for no-knock
authorization is not high. Id. at 990.
Because the warrant alleged specific facts indicating the officers
might reasonably be in danger if they were required to knock and
announce their entry and the drug evidence involved could be easily
destroyed or hidden, we conclude there were sufficient exigent
circumstances to justify the no-knock authorization. The affidavit alleged
(1) [Applicant] had an outstanding warrant from Illinois with an associated
caution he was “armed and dangerous”; (2) [Applicant] had an extensive
criminal history including aggravated battery, battery to a police officer,
resisting and obstructing a police officer, and narcotics offenses; (3)
[Applicant’s] roommate had a felony no bond warrant indicating he
absconded from the Department of Youth Corrections while on parole; and
(4) there was reason to believe that, based on the audio recording of
defendant’s conversation with his roommate, both [Applicant] and his
roommate were selling cocaine and possibly marijuana inside [Applicant’s]
Moreover, violation of the knock-and-announce rule does not
require exclusion of the evidence seized. See Hudson v. Michigan, 547
U.S. 586, 594 (2006) (“What the knock-and-announce rule has never
protected, however, is one’s interest in preventing the government from
seeing or taking evidence described in a warrant.”).
We therefore conclude the trial court did not err in declining to
suppress evidence obtained as a result of the no-knock warrant.
(ECF No. 12-4, at 8-10).
Applicant does not challenge the legality of the search warrant, only the
justification for the no-knock entry. The Court finds that Applicant was afforded a
“procedural opportunity to raise or otherwise present” his Fourth Amendment claim in
the state trial and appellate courts, and that the state courts recognized and made a
colorable application of the correct Fourth Amendment standards–i.e., Hudson– in
refusing to suppress the evidence seized pursuant to the search warrant. See Gamble,
583 F.2d at 1165. Accordingly, claim five will be dismissed.
D. Claim 6
In claim six, Applicant contends that defense counsel committed numerous errors
that cumulatively constituted ineffective assistance of counsel. Specifically, counsel
failed to: (a) properly investigate and prepare for trial; (b) interview and call critical alibi
witnesses; (c) investigate Applicant’s competency; (d) explore other viable defenses; (e)
keep Applicant apprised of the case; (f) consult with an expert witness concerning
Applicant’s mental condition; (g) adequately litigate a motion to suppress; (h) have the
drugs independently weighed and tested; and (i) have an expert analyze the recording
of Applicant’s conversation with his roommate.
Cumulative error is present when the “cumulative effect of two or more
individually harmless errors has the potential to prejudice a defendant to the same
extent as a single reversible error.” Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir. 2002)
(quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir.1990) (en banc)). “A
cumulative-error analysis merely aggregates all the errors that individually have been
found to be harmless, and therefore not reversible, and it analyzes whether their
cumulative effect on the outcome of trial is such that collectively they can no longer be
determined to be harmless.” Id. (quoting Rivera, 900 F.2d at 1470). On federal habeas
review, a cumulative error analysis applies only to cumulative constitutional errors.
Young v. Sirmons, 551 F.3d 942, 972 (10th Cir. 2008).
There is a split in the Circuit Courts of Appeal as to whether the need to conduct
a cumulative-error analysis is clearly established federal law under § 2254(d)(1). See
Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012). The Tenth Circuit has
indicated, however, that in the context of ineffective-assistance claims, “for AEDPA
purposes, the cumulative-error inquiry is clearly established federal law. Id.; see also
Littlejohn v. Trammell, 704 F.3d 817, 869 (10th Cir. 2013) (recognizing that “[a]though
we have never expressly held . . . that cumulative-error analysis is clearly established
federal law, we have long conducted cumulative-error analyses in our review of federal
habeas claims.”) (collecting cases). This Court need not resolve the issue because
under the deferential AEDPA standard of review, Applicant is not entitled to relief.
In Applicant’s state post-conviction proceeding, the Colorado Court of Appeals
rejected the claim of cumulative error on the ground that “[n]one of [Applicant’s] many
contentions of error rise to the level of reversible error, either separately or
cumulatively.” (ECF No. 12-9, at 15).
As discussed, infra, this Court has applied the AEDPA standard of review to each
of the ineffective assistance of counsel claims that form the basis of Applicant’s
cumulative error claim (claims 7-14) and has concluded that the Colorado Court of
Appeals’ resolution of the claims comported with applicable federal law. See Section
III.E. Based on those conclusions, the Court further finds that the state appellate court’s
resolution of Applicant’s cumulative error claim was also consistent with federal law.
Claim 6 therefore will be dismissed.
E. Claims Seven through Fourteen
In claims seven through fourteen, Applicant asserts the ineffective assistance of
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
Applicant’s claim fails on one. Id. at 697.
For his seventh claim, Applicant asserts that trial counsel was ineffective by
failing to adequately litigate a Fourth Amendment claim. The exhausted portions of this
claim are Applicant’s allegations that counsel failed to establish that the testifying officer
committed perjury with regard to his reason for being at Applicant’s house; failed to
present police reports; and, failed to adequately investigate the issue. Applicant has
procedurally defaulted the portion of his claim asserting that counsel was ineffective in
failing to attack the search warrant. (See ECF No. 16, at 8-9). Under Martinez,
Applicant’s lack of counsel in the state post-conviction proceeding will excuse his
procedural default if his allegation is “substantial.” 132 S.Ct. at 1318. A claim that “does
not have any merit or . . . is wholly without factual support” is not substantial. Id. at
a. exhausted portions of claim seven
The Court first addresses Applicant’s allegations that defense counsel failed to
establish that the testifying officer committed perjury with regard to his reason for being
at Applicant’s house; failed to present police reports; and, failed to adequately
investigate the issue. Specifically, Applicant contends that counsel should have
investigated and presented evidence to rebut the police officer’s testimony that the
officers were at his house to “check on the welfare of a female who had allegedly been
involved in a verbal altercation with a man with a bat.” (ECF No. 1, at 8). Applicant
maintains that this testimony was false because the woman “had been picked up by
police and transported to Colorado West Mental Health, prior to officers coming to
[Applicant’s] house to check on her welfare.” (Id.).
The Colorado Court of Appeals applied the Strickland standard (ECF No. 12-9, at
3), and rejected Applicant’s claim on the following grounds:
Failure to present witness testimony or other evidence will not
support a claim of ineffective assistance of trial counsel if the defendant is
unable to demonstrate prejudice. See People v. Dillard, 680 P.2d 243, 245
(Colo. App. 1984).
On direct appeal, the division in Hoeck I concluded that [Applicant]
had no reasonable expectation of privacy in the conversation recorded by
officers. The division noted, among other things, that the officer
approached [Applicant’s] house to investigate a verbal disturbance; the
argument could be heard twenty-five yards away from the house; the gate
to the yard was open; and, as he approached the front door, the officer
could hear that the argument or conversation involved narcotics. See
[Applicant] argues that his counsel should have presented evidence
that at the time the officers approached the house, they knew that a
female who had been involved in the disturbance had already left the
residence. We note, however, that the officers could have investigated
even if they knew that a female had left. See People v. Baker, 813 P.2d
331, 333 (Colo. 1991) (police do not infringe on an occupant’s privacy
rights by knocking on the door of a residence for the purpose of
investigating a crime).
Further, in rejecting the claim, the trial court concluded that it could
discern no prejudice from the purported failure to introduce such evidence.
The court reasoned that “[t]he mere fact that the female involved in the
initial disturbance had left is irrelevant.”
We agree, and thus, the additional information would not have
changed the outcome of the suppression hearing.
(Hoeck II, ECF No. 12-9, at 4-5).
The state appellate court’s decision was a reasonable application of Strickland.
The evidence Applicant wanted counsel to present at the suppression hearing was not
relevant to the issue of whether the police had a legitimate reason for being at the
premises, which was to investigate a report of a verbal disturbance. (See ECF No. 124, at 2). Moreover, Applicant does not point to any evidence in the state court record to
show that the officers who responded to the disturbance were aware that the woman
had left the residence. Absent such knowledge, the evidence would have no
impeachment value. Accordingly, the exhausted portions of claim seven are without
merit and will be dismissed.
b. procedurally defaulted portion of claim seven
Applicant also contends that trial counsel was ineffective in failing to challenge
the search warrant. He asserts that “[p]olice used false statements to obtain the noknock warrant when they stated that [he] had an outstanding warrant with an armed and
dangerous caution. Defense counsel could easily have read the police reports and
found that this was a false statement.” (ECF No. 1, at 11). As discussed above, this
allegation is procedurally barred unless it is substantial (meritorious).
A search warrant that contains false statements must be voided if: (1) the
statements were made knowingly and intentionally, or with reckless disregard of the
truth; and, (2) without the statements the corrected affidavit does not support a finding
of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States v.
Garcia-Zambrano, 530 F.3d 1249, 1254 (10th Cir. 2008).
The alleged false statements were relevant only to justify the no-knock entry.
(State Court R., Court File, at 37-38). The exclusionary rule does not apply to a
violation of the knock-and-announce rule. See Hudson, 547 U.S. at 594. Because
Applicant has failed to demonstrate that the officer’s affidavit did not support a finding of
probable cause for the search, the defaulted portion of claim seven lacks merit and will
be dismissed as procedurally barred.
In claim eight, Applicant asserts that trial counsel was ineffective in failing
to investigate his competency. In support, he alleges that as a result of being physically
assaulted by three adult males on July 21, 2007, he suffers from psychological
conditions, including short-term memory loss, sleep disorder, poor vision in both eyes,
severe anxiety, post-traumatic stress disorder (PTSD), post-concussion syndrome, and
agoraphobia. (ECF No. 1, at 11).
A criminal defendant has a federal due process right not to be tried while
mentally incompetent. Drope v. Missouri, 420 U.S. 162, 172 (1975). A defendant is
competent to stand trial if he has (1) “a rational as well as factual understanding of the
proceedings against him,” and (2) “sufficient present ability to consult with his lawyer
with a reasonable degree of understanding.” Dusky v. United States, 362 U.S. 402
(1960) (per curiam); see also Godinez v. Moran, 509 US 389, 396 (1993). Evidence of
a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on
competence to stand trial, as well as defense counsel’s assessment, are all relevant in
assessing competency. See Drope, 420 U.S. at 180; Medina v. California, 505 U.S.
437, 450 (1992). See also United States v. Cornejo–Sandoval, 564 F.3d 1225, 1234-35
(10th Cir. 2009).
In Hoeck II, the Colorado Court of Appeals applied the Strickland standard (ECF
No. 12-9, at 3), and rejected Applicant’s claim on the following grounds:
Next, we reject [Applicant’s] claim that his trial counsel was
ineffective for failing to investigate [Applicant’s] competency to stand trial.
The law presumes that a defendant is competent to stand trial, and
thus, the burden to prove incompetency rests with the accused. People v.
Palmer, 31 P.3d 863, 866 (Colo. 2001). A defendant’s competence is a
question of fact, and the trial court’s ruling is reviewed for an abuse of
discretion. See id. at 865-66.
Here, in his postconviction filings, [Applicant] complains of
short-term memory loss, anxiety, post-traumatic stress disorder (PTSD),
post-concussive syndrome, agoraphobia, and other conditions, which he
claims resulted from a physical assault that occurred prior to his arrest. He
describes an incident in which he could not assist or cooperate with
counsel, but instead ran in panic from a conference room. However, he
does not claim that the inability to cooperate and assist persisted beyond
this incident. Finally, he makes a bare assertion that he was “unable to
testify or to confront adverse witnesses” as a result of his PTSD.
The trial court rejected the claim, finding that the record
conclusively showed that [Applicant] was competent to stand trial. The
court concluded that [Applicant’s] pro se filings and his participation in
court hearings demonstrated that he understood the nature of the
proceedings and was fully capable of assisting in his defense. See id. at
870 (concluding that the record showed the defendant was able to
understand the proceedings and assist in his defense, despite claims of
amnesia); People v. Price, 240 P.3d 557, 563 (Colo. App. 2010) (trial court
was under no duty to suspend proceedings and determine the defendant’s
competency where counsel failed to establish a “bona fide doubt” as to the
[Applicant] did not allege facts that show that he was incapable of
understanding the nature and course of the proceedings against him, of
participating or assisting in his defense, or of cooperating with his defense
counsel. See Price, 240 P.3d at 561 (stating competency standard).
Under these circumstances, the trial court did not err in rejecting his claim.
(ECF No. 12-9, at 5-7).
In his federal Application, Applicant relies heavily on injuries he sustained in July
2007, approximately one year before his trial. (ECF No. 1, at 1; ECF No. 12-1, at 8).
However, defense counsel and the state trial court were able to observe Applicant
during the several months leading up to trial, and, based on these observations, as well
as Applicant’s pro se filings, it was reasonable for the Colorado Court of Appeals to
conclude that Applicant “understood the nature of the proceedings and was capable of
assisting with his defense.” (ECF No. 12-9, at 7). Further, the single, isolated incident
where Applicant ran out of the courtroom in a panic while meeting with counsel is not,
by itself, sufficient to call into question his competency.
In addition, Applicant did not present any medical evidence to defense counsel at
or before trial that would have alerted counsel to an issue concerning Applicant’s
competency. “The presence of some degree of mental disorder in the defendant does
not necessarily mean that he is incompetent . . . .”. See Miles v. Dorsey, 61 F.3d 1459,
1472 (10th Cir. 1995). The cases upon which Applicant relies either do not support his
claim or are factually distinguishable. See United States v. Brown, 326 F.3d 1143, 1148
(10th Cir. 2003) (concluding that expert testimony failed to establish how defendant’s
PTSD was related to, or tended to negate the specific intent element of the charged
crime); Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (concluding that counsel
was ineffective in failing to investigate the defendant’s competency to enter a guilty plea
where counsel was aware that the defendant had been committed previously to mental
institutions, but did not request a psychiatric evaluation or conduct any other
investigation); Becton v. Barrett, 920 F.2d 1190 (4th Cir. 1990) (same); Williamson v.
Ward, 110 F.3d 1508, 1518 (10th Cir. 1997) (concluding that defense counsel should
have pursued a competency determination where counsel “knew of his client's history of
mental problems, knew that he was being medicated, perhaps over-medicated,
observed his client's bizarre behavior, knew that he had previously been determined
incompetent, and knew that he had been awarded disability benefits on the basis of his
Applicant has failed to rebut the state courts’ factual findings that he was
competent to stand trial, and, therefore, did not suffer any prejudice as a result of trial
counsel’s failure to investigate his competency. See 28 U.S.C. §2254(e)(1); Huricks v.
Thaler, No. 08-51050, 417 F. App’x 423, 428 (5th Cir. March 11, 2011) (unpublished)
(concluding that habeas petitioner did not establish prejudice resulting from his trial
counsel’s alleged failure to investigate his competency where petitioner failed to rebut
state courts’ factual findings that he was able to consult with his lawyer with a
reasonable degree of rational understanding, and that petitioner had a rational and
factual understanding of the proceedings based on petitioner’s participation in court
proceedings). The Court finds that the state appellate court’s determination of
Applicant’s claim comported with Strickland and was reasonable based on the evidence
presented in the state court proceedings. Applicant therefore cannot prevail on claim
For his ninth claim, Applicant contends that trial counsel was ineffective in failing
to consult with expert witnesses concerning his competency. In support of his claim,
[U]pon being sentenced to the department of corrections, [Applicant] was
finally able to get the medical and mental health attention he had been
seeking. Medical and health experts would have testified that [he] was not
able to assist in his own defense, and unable to take the stand in his own
defense. They would also have testified that [his] injuries caused him to be
unable to think rationally or exercise adult judgment and that he lacked the
culpable mental state of knowingly, for the required mens rea of the
offense. Medical and mental health records would have proved that [he]
suffered from these issues and that he was not competent to stand trial or
at the time of the alleged offenses.
(ECF No.1, at 13).
However, in presenting his claim to the state courts, Applicant did not identify any
mental health experts that would have supported his claim of incompetency. Applicant
made the following contention in his opening brief on appeal in the state post-conviction
[Trial counsel] was made fully aware of [Applicant’s] physical condition
and on-going psychological trauma, however, he did not consult with any
expert psychiatrists or neurologists for [Applicant’s] defense in relation to
his psychological ability to stand trial under the conditions he continued to
suffer from. . . . At the time of occurrence of the alleged crimes in this
case, [Applicant] suffered from psychological disorders of PCS, PTSD and
Agoraphobia, all of which are clinically recognized psychological disorders
which involve a person’s reaction to severe stresses and physical
(ECF No. 12-8, at 10).
The Colorado Court of Appeals applied the Strickland standard (ECF No. 12-9, at
3), and rejected the ineffective-assistance-of-counsel claim based on the following
[Applicant] next contends that his counsel was ineffective for failing
to consult with an expert concerning his post-concussive syndrome,
PTSD, and agoraphobia. We disagree.
Failure to employ an expert witness will not support a claim of
ineffective assistance of trial counsel if the defendant is unable to
demonstrate prejudice. See Dillard, 680 P.2d at 245. Whether to call an
expert witness is generally a tactical decision within the discretion of trial
counsel. See People v. Bradley, 25 P.3d 1271, 1275-76 (Colo. App.
Here, [Applicant] argues that, without consulting an expert, counsel
was “unable to rationally determine technical and evidentiary strategy” or
to “properly prepare for cross examination of the prosecution’s witnesses,
or [prepare] for presentation of rebuttal of physical evidence.” However,
he provides no facts or context for these assertions.
The court rejected the claim. On appeal, [Applicant] does not
explain how consultation with an expert would have changed the result of
any proceeding. As such, there is no showing of prejudice from counsel’s
purported failure to consult an expert.
(Hoeck II, ECF No. 12-9, at 7-8).
The state appellate court’s decision was consistent with Strickland. As discussed
in Section III.E.2, supra, the fact that Applicant suffers from certain psychological
disorders does not necessarily render him incompetent to stand trial. See Miles, 61 F.3d
at 1472. Applicant does not allege that he informed counsel, at or before trial, of the
name of any mental health provider who had questioned Applicant’s mental
competency. Applicant’s reliance on the purported opinions of prison mental health
staff, which were not made known to the state courts, do not afford him a basis for
federal habeas relief. See Cullen, 131 S.Ct. at 1398 (stating that “evidence introduced
in federal court has no bearing on § 2254(d)(1) review”). And, the state courts’ findings
that Applicant’s participation in court hearings and his pro se pre-trial filings
demonstrated that he understood the nature of the proceedings and was fully capable of
assisting in his defense was reasonable in light of the evidence before the state courts.
Finally, Applicant’s own statements, made during the tape-recorded conversation with
his roommate, established his knowing possession of cocaine and intent to distribute.
Claim nine thus will be dismissed.
In claim ten, Applicant asserts that trial counsel was ineffective by failing to have
the drugs independently weighed and tested. He maintains that “[i]ndependent testing
could have shown that the weights were incorrect, and that the substances were not a
controlled substance.” (Id.). Applicant has procedurally defaulted the portion of his
claim addressing the nature of the substance. (ECF No. 16, at 13).
In Hoeck II, the Colorado Court of Appeals applied the Strickland standard (ECF
No. 12-9, at 3), and analyzed the claim as follows:
[Applicant] maintains that trial counsel was ineffective for failing to
reweigh and independently test the cocaine found during the search of his
home. We disagree.
[Applicant] does not state what such testing would reveal. And
while he argues that the police recovered only cocaine “residue,” a division
of this court has already concluded that there was sufficient evidence to
support the verdict. See Hoeck I. Further, the trial court concluded that,
because of the overwhelming evidence of [Applicant’s] intent to sell drugs,
any failure to have the drugs reweighed or retested did not result in
prejudice. See Dunlap v. People, 173 P.3d 1054, 1092 n.41 (Colo. 2007)
(no prejudice found in light of overwhelming evidence of guilt).
On appeal, [Applicant] presents no argument regarding the trial
court’s conclusions, but only repeats the assertions he made in his motion.
Thus, [Applicant] has not shown prejudice from any failure by counsel to
reweigh or test the cocaine.
(ECF No. 12-9, at 8-9).
Under § 18-18-405(2), C.R.S., it is unlawful for any person knowingly to
manufacture, dispense, sell, or distribute, or to possess with intent to manufacture,
dispense, sell, or distribute, a controlled substance. The amount of the controlled
substance is not an element of the offense. However, “where there is not evidence of a
usable quantity, the People must present other evidence regarding the defendant’s
knowledge to justify the jury’s consideration of that element.” Richardson, 25 P.3d at
58. In this case, there was significant evidence of Applicant’s knowledge, including: (1)
his roommate’s testimony that the voices on the recording were his and Applicant’s; (2)
Applicant’s statements in the recording indicated his intent to sell cocaine; and, (3) the
officers’ seizure of numerous items commonly used in distributing narcotics, including
coin baggies, digital scales, a crack pipe, straight razors, pieces of paper with list of
phone numbers, and various items containing cocaine residue found throughout
[Applicant’s] residence. Applicant does not explain what the reweighing would have
shown, or how it would have refuted the other evidence of guilt, so as to demonstrate
prejudice resulting in counsel’s alleged shortcomings. Accordingly, the Court finds that
the state appellate court’s rejection of Applicant’s ineffective assistance of counsel
allegations was a reasonable application of Strickland.
The Court further finds that Applicant’s procedurally defaulted allegation in claim
10 that “[i]ndependent testing could have shown . . . that the substances were not a
controlled substance” (ECF No. 1, at 15) lacks merit because the allegation is
conclusory. Conclusory assertions are insufficient to support an ineffective assistance
of counsel claim. See Cummings v. Sirmons, 506 F.3d 1211, 1228-29, 33-34 (10th Cir.
2007) (allegations based on unsubstantiated assertions of fact are not sufficient to
satisfy Strickland). As such, the procedurally barred portion of claim 10 is not
substantial. See Martinez, 132 S.Ct. at 1318.
Claim ten will be dismissed in its entirety.
In claim eleven, Applicant asserts that trial counsel was ineffective by
failing to have an expert review the recording of his conversation with his roommate.
Specifically, Applicant contends that counsel failed to obtain a distinguishing voice
exemplar and failed to challenge “the reliability of the recording, the chain of custody
and the destruction of the original recording.” (Id.). Applicant has procedurally defaulted
the portion of his claim challenging the reliability of the record and chain of custody.
(ECF No. 16, at 14-15).
The Colorado Court of Appeals applied the Strickland standard (ECF No.
12-9, at 3), and rejected this claim on the following grounds:
[Applicant] next argues that his counsel was ineffective for failing to
submit the audio recording for an independent voice analysis. In support,
he claims that the prosecution relied on a copy of the recording, and that
no evidence was presented to demonstrate that it was his voice on the
recording. We are not persuaded.
[Applicant’s] roommate testified at trial that both his voice and
[Applicant’s] voice were on the recording. [Applicant] does not contend
that a voice expert could have contradicted this testimony. Further, the
police could have gotten their search warrant based on the recording
regardless of whose voices were recorded.
Under the circumstances, [Applicant] has not shown that a voice
analysis would have changed the outcome of the case.
(Hoeck II, ECF No. 12-9, at 9-10).
The Court finds that the state appellate court’s analysis was consistent with
Strickland. Applicant has never alleged that a voice analysis would show that the
second voice on the tape belonged to someone else. As such, his allegation is
conclusory and fails to demonstrate that he was prejudiced as a result of counsel’s
alleged inadequate performance. See Cummings, 506 F.3d 1233-34; see also Boyle v.
McKune, 544 F.3d 1132, 1138 (10th Cir. 2008) (prejudice not shown from counsel's
failure to call witnesses where applicant could not show what helpful testimony the
witnesses would have provided).
Applicant’s procedurally defaulted allegation that counsel was ineffective for
failing to challenge the chain of custody of the recording of Applicant’s statements is not
substantial, under Martinez, because Applicant does not explain specifically how the
chain of custody was deficient. Again, conclusory allegations cannot support an
ineffective assistance of counsel claim. See id.; see also United States v. Fisher, 38
F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance claim fails “where [petitioner's]
allegations are merely conclusory in nature and without supporting factual averments”).
Claim Eleven will be dismissed in its entirety.
In claim twelve, Applicant contends that trial counsel was ineffective by
failing to explore other viable defenses. Specifically, Applicant maintains that counsel
did not investigate Applicant’s state of mind and competency, alibi and corroborating
defense witnesses, and alternate suspects. (ECF No. 1, at 16). The Court has
concluded that the portion of claim twelve challenging counsel’s failure to explore
alternate suspects is procedurally barred.1 (ECF No. 16, at 15-16).
The Colorado Court of Appeals applied the Strickland standard (ECF No.
12-9, at 3), and rejected some of Applicant’s allegations on the following grounds:
[Applicant] contends that his attorney failed to investigate and
present a defense that (1) he had been physically assaulted before his
arrest and suffered from psychological trauma, (2) he had been to church
and had made a telephone call on the night the officers arrived at his
In the February 3, 2014 Order to Dismiss in Part, the Court mistakenly stated that Applicant
failed to exhaust state remedies, and procedurally defaulted, his allegation that counsel failed to explore
alibi witnesses. (ECF No. 16, at 15-16). The February 3, 2014 Order is corrected to reflect that Applicant
exhausted his claim concerning counsel’s failure to investigate alibi witnesses, but procedurally defaulted
his claim that counsel failed to investigate alternate suspects.
home, and (3) his roommate initially told police that the drugs and drug
paraphernalia did not belong to [Applicant].
The trial court concluded that [Applicant] had not shown that these
facts would have made a difference at trial in light of the overwhelming
evidence of [Applicant’s] guilt. See People v. Barefield, 804 P.2d 1342,
1346 (Colo. App. 1990) (court may consider strength of the case in
determining whether there was a reasonable probability of producing a
different result at trial).
We agree with the court’s assessment, and conclude that
[Applicant] has not shown prejudice from his counsel’s choices.
(Hoeck II, ECF No. 12-9, at 10-11).
The Court fully addressed Applicant’s allegations that counsel failed to
investigate Applicant’s state of mind and competency in the discussion of claims 8 and
9 and concluded that the allegations lack merit. Further, Applicant’s assertion that
defense counsel failed to investigate corroborating defense witnesses is without merit
because Applicant’s roommate testified for the defense at trial that the drug
paraphernalia in the house belonged to him, a fact that he told police officers at the time
of his arrest. (State Court R., 7/17/08 Trial Tr., at 147-150). Applicant has not identified
any other favorable defense witnesses, or the substance of their purported testimony.
Moreover, Applicant has failed to show how the alleged deficiencies by counsel
prejudiced him in light of the evidence seized from Applicant’s residence and Applicant’s
own inculpatory statements in the tape-recorded conversation. See Peterson v. Timme,
509 F. App’x 830, 932 (10th Cir. Feb. 6, 2013) (unpublished) (rejecting the petitioner’s
claim that trial counsel's failure to call and subpoena witnesses and surveillance tapes
constituted ineffective assistance of counsel because petitioner did not assert any
specific exculpatory evidence that would have changed the outcome of his
proceedings). Accordingly, the Court finds that the state appellate court’s resolution of
his claim was a reasonable application of Strickland.
b. procedurally defaulted allegation
The Court further finds that Applicant’s procedurally defaulted contention that
counsel was ineffective in failing to investigate an alternative suspect defense is without
merit. Applicant alleges that “counsel knew that there was defense evidence in the form
of . . . alternate suspects, yet counsel did not investigate them or present them on
behalf of his client, which the trial record shows.” (ECF No. 1, at 16).
In Colorado, “[a] defendant may prove his innocence by establishing the guilt of
an alternate suspect.” People v. Perez, 972 P.2d 1072, 1074 (Colo. App. 1998).
“However, evidence that another person had an opportunity to commit the crime for
which defendant is being tried is not sufficient. The defendant must prove that the other
person committed some act directly connecting that person with the charged crime.” Id.
Applicant does not identify an alternate suspect or specify an act committed by
the alternate suspect directly connecting that individual to the crime. As such,
Applicant’s allegations are conclusory and, consequently, insubstantial under Martinez.
Claim twelve will be dismissed in its entirety.
For claim thirteen, Applicant asserts that trial counsel was ineffective by
failing to apprise him of the progress of the case. Specifically, Applicant claims that
counsel failed to review discovery with Applicant, who because of a vision impairment,
was unable to read; and, failed to discuss viable defenses, alibi witness statements, trial
strategy and trial readiness with Applicant. (ECF No. 1, at 17).
In Hoeck II, the Colorado Court of Appeals applied the Strickland standard (ECF
No. 12-9, at 3), and addressed this claim as follows:
[Applicant] maintains that counsel failed to properly communicate
with him regarding trial strategy and other matters prior to trial. Further, he
complains that the trial court erred in failing to appoint new counsel to
represent him in a hearing on the issue when the matter was brought to
the court’s attention.
The trial court rejected the claim, noting that it had already
addressed the issue in a hearing held before trial. The court noted that,
following the hearing, the court had concluded that there was no
breakdown of communication and that [Applicant] simply disagreed with
counsel’s tactics and trial strategy. The court further rejected [Applicant’s]
claim that it should have appointed additional counsel to assist him at his
On appeal, [Applicant] fails to indicate how the purported
communication problems impacted the case, other than to make a
conclusory statement that the communication problems affected the trial’s
Under these circumstances, the court did not err in rejecting the claim.
(ECF No. 12-9, at 12-13).
The state appellate court’s determination that Applicant failed to demonstrate
prejudice as a result of counsel’s alleged deficient performance comports with
Strickland. Again, Applicant’s conclusory assertion that “[t]he issue of communications
between [Applicant] and his counsel did affect the fairness of his trial,” (ECF No. 1, at
18), is insufficient to demonstrate that the outcome of his trial would have been different
absent the alleged communication problems, or if he had been appointed substitute
counsel. See Cummings, 506 F.3d 1233-34; Fisher, 38 F.3d at 1147. Claim thirteen
will be dismissed.
In claim fourteen, Applicant contends that trial counsel was ineffective by
failing to interview and present character witnesses at the sentencing hearing.
The Colorado Court of Appeals applied the Strickland standard (ECF No. 12-9, at
3), and rejected this claim on the following grounds:
[Applicant] argues that his counsel was ineffective at sentencing
because he did not present any character witnesses and did not prepare
[Applicant] for allocution. We are not persuaded.
In rejecting [Applicant’s] argument, the [sentencing] court stated:
Here, the Court imposed a sentence within the aggravated
range because [Applicant] had nine prior felony convictions
and committed another felony while he was out on bond in
this case. Even if defense counsel had called character
witnesses to testify on [Applicant] behalf, it is highly unlikely
that the Court would have imposed a lesser sentence. As
such, the failure to call these witnesses did not result in
On appeal, [Applicant] does not specifically identify any character
witnesses who would have testified on his behalf. Further, the prosecution
had already agreed to dismiss habitual charges against [Applicant]. The
charges were dismissed because of [Applicant’s] cooperation with law
enforcement in connection with the assault of another individual, and the
prosecution opposed further sentencing concessions because [Applicant]
had a lengthy criminal record.
The court, in sentencing [Applicant], considered defense counsel’s
arguments regarding [Applicant’s] injuries, his cooperation with law
enforcement, his efforts to help others, and the small amount of drugs
actually found in the search of his home. However, the court noted the
serious nature of the charges, the circumstances of the crime, the
compelling evidence of defendant’s guilt, and [Applicant’s] extensive
criminal history, which the court described as “the biggest prior record I’ve
seen with regard to felony convictions.” The court also noted that
[Applicant] would have faced a forty-eight-year sentence had he been
charged as an habitual offender.
Further, contrary to any suggestion that [Applicant] was denied his
right of allocution, the sentencing transcript reveals that [Applicant] spoke
about his family, his plans to finish his college education, the care he had
given to his children, his efforts to help others, and his religious
convictions. [Applicant] does not indicate what additional comments he
would have made when addressing the court had he been prepared by
Under the circumstances, [Applicant] has not shown that his
counsel’s purported inadequate representation at sentencing resulted in
any prejudice to [Applicant].
(Hoeck II, ECF No. 12-9, at 12-13).
The state appellate court’s factual findings are presumed correct, are supported
by the record of the sentencing proceeding (see generally State Court R., 7/18/08
Sentencing Tr.), and are unrebutted by Applicant. Because Applicant does not identify
any character witnesses that he would have called, or the substance of the witness’s
testimony and how it would have resulted in a reduced sentence in light of his extensive
felony record, his claim is conclusory. See Cummings, 506 F.3d 1233-34; Fisher, 38
F.3d at 1147; see also Boyle, 544 F.3d at 1138. Claim fourteen will be dismissed.
For his eighteenth and final claim, Applicant asserts that his trial counsel was
constitutionally ineffective due to a conflict of interest regarding Applicant’s religious
beliefs. Specifically, Applicant contends that “counsel refused to see [him] on any other
day than the weekly Sabbath, even after he was told that this was a day [that he] could
not work, nor have anyone do any manner of work for him, in violation of the First
Amendment.” (ECF No. 1, at 21). Applicant procedurally defaulted this claim in the
state courts and must therefore show that the claim is substantial to excuse the
procedural bar. See Martinez, 132 S.Ct. at 1318.
In his opening brief on appeal in Hoeck II, Applicant argued the following:
This conflict arose over Mr. Esplin’s refusal to go to the county jail to meet
with Mr. Hoeck except between Friday sunset and Saturday sunset, which
Mr. Hoeck did specifically inform Mr. Esplin were holy days in which Mr.
Hoeck had to observe and could not work on, nor have anyone work for
him on. He asked Mr. Esplin not to come meet with him between Friday at
sunset through Saturday at sunset, however, Mr. Esplin disregarded
Hoeck’s request and his First and Fourteenth Amendments constitutional
rights of freedom to practice his religious beliefs and continued to attempt
to see Mr. Hoeck from Friday sunset to Saturday sunset. Mr. Hoeck
refused to meet with Mr. Esplin and as a result Mr. Hoeck was provided
IAC and denied conflict-free counsel by Mr. Esplin due to his refusal to
meet with and interview Mr. Hoeck at any other time. Mr. Esplin used this
conflict of interest to undermine the attorney-client relationship by not
properly investigating Mr. Hoeck’s case, defenses, potential witnesses,
and allowed this conflict of interest with Mr. Hoeck’s religious beliefs as an
issue to deny Mr. Hoeck the loyal and zealous advocacy owed.
(ECF No. 12-8, at 22).
The state court record reflects that before trial, Applicant filed pro se a motion
requesting new counsel and the state trial court held a hearing. During the hearing, the
court invited Applicant to explain all of the bases for his motion, but Applicant did not
mention that counsel insisted on meeting with Applicant only on a holy day. (State
Court R., 2/22/08 Hrg. Tr.). Further, the state court record demonstrates that counsel
met with Applicant at least once before trial. In Applicant’s pro se motion seeking new
counsel, Applicant stated, “I told my attorney when he went over discovery with me that
police violated the law and he said they didn’t without checking into it.” (State Court R.,
Court File, at 20) (emphasis supplied). In addition, during the colloquy between
Applicant and the trial court during the hearing on Applicant’s motion, Applicant told the
court: “I know there’s witnesses on this next one [i.e. trial]2 coming up and he said to me
when he visited me that he didn’t remember hearing about these guys, and I don’t even
know if he’s had them interviewed or anything.” (State Court R., 2/22/08 Hrg. Tr., at 7)
The federal courts of appeal have eschewed any requirement that counsel meet
with a criminal defendant a minimum number of times before trial. See, e.g., United
States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988) (there is no established “minimum
number of meetings between counsel and client prior to trial necessary to prepare an
attorney to provide effective assistance of counsel.”); Moody v. Polk, 408 F.3d 141, 148
(4th Cir. 2005)(same); Schwander v. Blackburn, 750 F.2d 494, 499-500 (5th Cir. 1985)
(reiterating that “brevity of consultation time between a defendant and his counsel,
alone, cannot support a claim of ineffective assistance of counsel.”) (internal quotation
marks and citation omitted); see also Jones v. Conway, 442 F.Supp.2d 113, 126
(S.D.N.Y.2006) (noting that “there is no set rule for the number of times counsel must
meet with a defendant,” and that the petitioner failed to establish prejudice because the
record revealed “that petitioner's trial counsel was active and effective in presenting a
strong defense on petitioner's behalf”). The real issue is whether trial counsel
effectively prepared the defendant for trial. See United States v. Chavez–Marquez, 66
F.3d 259, 262 (10th Cir. 1995).
Applicant has not pointed to any facts to show how the outcome of his trial was
Respondents state that the same counsel represented Applicant in a previous trial in 07CR1604,
and Applicant complained about counsel’s not investigating witnesses in that case. (ECF No. 19, at 52
n.3). See also State Court R., 2/22/08 Hrg Tr., at 3, 5, and 8.
affected by counsel’s unavailability to meet with him on days other than a holy day.
Further, Applicant’s allegations in his opening brief to the state appellate court that
counsel failed to properly investigate Applicant’s case, defenses and potential witnesses
and denied “the loyal and zealous advocacy owed” to him are conclusory. See
Cummings, 506 F.3d 1233-34; Fisher, 38 F.3d at 1147; see also Boyle, 544 F.3d at
Finally, Applicant’s claim does not appear to implicate the First Amendment. The
First Amendment, made applicable to the states by the Fourteenth Amendment, bars
the state from making laws prohibiting the free exercise of religion. U.S. Const. amends.
I and XIV § 1. Applicant has not provided any authority to support the proposition that
court-appointed counsel’s unavailability to meet with a criminal defendant on days other
than a holy day violates the defendant’s First Amendment free exercise rights. Indeed,
the courts have held in other contexts that the conduct of court-appointed defense
counsel is not state action regulated by the First and Fourteenth Amendments. See
Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that private counsel
appointed by court to represent an indigent litigant is not a state actor subject to liability
under 42 U.S.C. § 1983); see also see also Ellibee v. Hazlett, No. 04-3128, 122 F.
App’x. 932, 934 (10th Cir. Dec.13, 2004) (unpublished) (“Neither public defenders
performing their ‘traditional functions as counsel to a defendant in a criminal proceeding’
nor private attorneys act under color of state law.”) (quoting Polk County, 454 U.S. at
The Court finds no merit to claim eighteen. The claim therefore will be dismissed
as procedurally barred.
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1), filed by David B. Hoeck, on September 19, 2013, is
DENIED and this action is DISMISSED WITH PREJUDICE. 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 this 21st day of April, 2014.
BY THE COURT:
William J. Martínez
United States District Judge
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