Smith v. Bonner et al
Filing
30
ORDER: The 10 Amended Application for a Writ of Habeas Corpus is denied. This case is dismissed with prejudice. A Certificate of appealability shall not issued under 28 U.S.C. § 2253(c) and leave to proceed in forma pauperis on appeal is denied. By Judge Robert E. Blackburn on 5/12/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-03499-REB
WILLARD C. SMITH,
Applicant,
v.
BOBBY BONNER, Warden, and
CYNTHIA COFFMAN,1 Attorney General, State of Colorado,
Respondents.
ORDER ON APPLICATION FOR A WRIT OF HABEAS CORPUS
Blackburn, J.
This matter is before me on the [Amended] Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“Amended Application”) [#10]2 filed February
12, 2014, by Applicant, Willard C. Smith. Respondents answered the Amended
Application [#28], and Applicant filed a traverse [#29]. After reviewing the pertinent
portions of the record in this case including the Amended Application, the Answer, the
Traverse, and the state court record, I conclude that the Application should be denied.
1
Pursuant to Fed. R. Civ. P. 25(d), the current Attorney General for the State of Colorado,
Cynthia Coffman, has been substituted for John Suthers, the former Attorney General.
2
“[#10]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court's electronic case filing and management system (CM/ECF). I use this
convention throughout this order.
I. BACKGROUND
In 2005, Applicant was convicted by a jury of second degree murder in Otero
County District Court Case No. 04CR247.3 [# 18-1, at 3]. During trial, Applicant pled
guilty to Count 4 of the Information, charging him with possession of a weapon by a
previous offender (“POWPO” charge). [Id. at 3-4]. He was sentenced to an aggregate
prison term of 48 years with the Colorado Department of Corrections. [Id. at 3].
The Colorado Court of Appeals summarized the relevant facts on direct review of
Applicant’s convictions, in People v. Willard Clayton Smith (Smith I), No. 06CA0935
(Colo. App. April 17, 2008):
In October 2004, defendant was living in a bus parked next to a
house occupied by T.H. and her boyfriend, the victim.
On October 7, 2004, defendant went to a local bar where he drank
with T.H. and the victim. Defendant insulted T.H., and defendant and the
victim argued. During the argument, defendant threatened to kill the
victim. Defendant and the victim resolved the argument and eventually
became intoxicated. Later, defendant, T.H., and the victim left the bar
together, stopped at a liquor store to purchase beer and whiskey, and
returned home.
T.H. testified that defendant and the victim were very intoxicated,
loud, and obnoxious and she told them to leave the house. Defendant and
the victim resumed their drinking spree in defendant’s bus. Later, T.H.
observed defendant and the victim having a “heated conversation.”
Later, during dinner, T.H. asked the victim to leave the house and
with the aid of her son, locked the victim out of the house. Angry, the
victim threw a cooler at the front door, got into his truck, and drove in
circles in the yard. The next morning, the victim was gone.
T.H.’s children each testified that they heard a gunshot after they
went to bed, but did not tell anyone until a few days later.
3
State Court R., Court File, Jury Verdicts, at 214-219.
2
Over the next few days, defendant told inconsistent stories about
the victim’s disappearance, stating that the victim had “run off” with
another woman, that he had loaned the victim $50 and he had walked
away through a field, that the victim had met with a man about a
methamphetamine deal, and that he had shot the victim and “fed him to
the pigs.”
On October 9, 2004, T.H. filed a missing person’s report. The next
day, T.H.’s son found the victim’s body in a ditch near a hog pen and
telephoned the police. The victim had been shot in the head and dragged
into the ditch. The police officers found the victim’s blood in and on the
steps leading to defendant’s bus and the gun used to shoot the victim
under the bus.
Defendant was arrested on October 11, 2004. At the time of his
arrest, defendant had two small cuts on his torso. Defendant told the
police officer that “he got them from working on a car.”
On October 13, 2004, defendant gave oral and written statements
to the police. Defendant stated that on October 7, 2004, he had gone to
bed, was awakened by the sound of the victim’s truck, and got out his gun.
After looking out his window and seeing that it was the victim, defendant
sat down and laid his gun on the table. The victim then came into his bus,
sat down at the table, asked to borrow $50, and offered his truck as
collateral for the loan. When defendant refused to loan him money, the
victim took a knife out of his back pocket and swung at him. Defendant
stated that he picked up the gun and shot the victim in self-defense.
Defendant stated he dragged the victim’s body into the ditch, put the
victim’s knife back into its sheath, and placed the knife in the victim’s
truck.
[# 18-2 at 2-5].
The Colorado Court of Appeals affirmed Applicant’s convictions and sentence on
direct appeal. [Id.]. The Colorado Supreme Court denied Applicant’s petition for
certiorari review on August 18, 2008. [# 18-9].
Applicant thereafter filed a motion for state post-conviction relief, pursuant to
Colo. Crim. P. Rule 35(c). [# 18-1, at 13]. The Colorado Court of Appeals affirmed the
trial court’s order denying the motion in People v. William Clayton Smith (Smith II), No.
3
11CA1034 (Colo. App. March 21, 2013) [#18-3]. The Colorado Supreme Court denied
Applicant’s request for certiorari review on December 9, 2013. [#18-14].
Mr. Smith initiated this action on December 27, 2013. He asserts the following
claims in his Amended Application:
•
Trial counsel was ineffective in handling the POWPO charge (claims one
and two) [#10, at 10-12];
•
Trial counsel was ineffective in failing to present a defense under
Colorado’s “”make my day” statute (claim three) [Id. at 14];
•
Trial counsel was ineffective in: (a) requesting a competency evaluation
for Applicant; and, (b) thereafter failing to adequately advise Applicant
concerning the necessity and implications of waiving his right to a speedy
trial (claim four) [Id. at 15];
•
The trial court violated Applicant’s constitutional rights by failing to grant
Applicant’s request for substitution counsel (claim five) [Id. at 16];
•
Applicant’s constitutional rights were violated when the police failed to
collect and preserve a knife found at the crime scene (claim six) [Id. at 17];
and,
•
The trial court violated Applicant’s constitutional rights by denying newlyappointed sentencing counsel’s request for a continuance of the
sentencing hearing to allow him to obtain the trial transcripts (claim seven)
[Id. at 18].
Respondents concede that the Application is timely pursuant to the AEDPA oneyear limitation period, 28 U.S.C. § 2244(d)(1). [# 18, at 4-7]. Respondents further
concede that Applicant exhausted state remedies for all of his claims, except for claim
four. [Id. at 9-12]. In a May 1, 2014 Order, Senior Judge Lewis T. Babcock rejected
Respondents’ assertion of the failure to exhaust defense as to claim four. [# 21, at 3-4].
In a separate Order, Judge Babcock directed Respondents to file an Answer to the
Amended Application. [# 19].
4
I address below the merits of Applicant’s claims under the deferential AEDPA
standard of review.
II. LEGAL STANDARDS
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter,
562 U.S. 86, 131 S. Ct. 770, 784-85 (2011). In particular, “determining whether a state
court’s decision resulted from an unreasonable legal or factual conclusion does not
require that there be an opinion from the state court explaining the state court’s
reasoning.” Id. at 784. Thus, “[w]hen a federal claim has been presented to a state
court and the state court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary.” Id. at 784-85. Even “[w]here a state court’s
decision is unaccompanied by an explanation, the habeas petitioner’s burden still must
be met by showing there was no reasonable basis for the state court to deny relief.” Id.
5
at 784. In other words, the Court “owe[s] deference to the state court’s result, even if its
reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.
1999). Therefore, the court “must uphold the state court’s summary decision unless
[the court’s] independent review of the record and pertinent federal law persuades [the
court] that its result contravenes or unreasonably applies clearly established federal law,
or is based on an unreasonable determination of the facts in light of the evidence
presented.” Id. at 1178. “[T]his ‘independent review’ should be distinguished from a full
de novo review of the petitioner’s claims.” Id.
The Richter presumption is also applicable when a state-court opinion addresses
some but not all of those claims. Johnson v. Williams, 133 S. Ct. 1088, 1094-98 (2013).
For purposes of § 2254(d), when a state court rules against a defendant in an opinion
that rejects some of the defendant’s claims but does not expressly address a federal
claim, a federal habeas court must presume, subject to rebuttal, that the federal claim
was adjudicated on the merits. Id. at 1094-96. Federal habeas courts should not
assume that any unaddressed federal claim simply was overlooked because a state
court does not uniformly discuss separately every claim referenced by a defendant. Id.
The court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the court must answer under § 2254(d)(1) is whether the
applicant seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). Clearly established federal law “refers to the holdings, as opposed to the dicta,
6
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice.
Although the legal rule at issue need not have had its genesis in the
closely-related or similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law
if: (a) “the state court applies a rule that contradicts the governing law set
forth in Supreme Court cases”; or (b) “the state court confronts a set of
facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of
clearly established federal law when it identifies the correct governing
legal rule from Supreme Court cases, but unreasonably applies it to the
facts. Id. at 407-08. Additionally, we have recognized that an
unreasonable application may occur if 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
7
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). “[R]eview under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 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. See also White v. Woodall, 134 S. Ct. 1697 (2014) (citing
and quoting Richter).
The court reviews claims asserting factual errors pursuant to 28 U.S.C.
8
§ 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)).
III. MERITS OF THE CLAIMS
A. Claims One through Three
In claims one through three, Applicant contends that his trial counsel was
ineffective in violation of his Sixth Amendment rights.
To prevail on an ineffective-assistance-of-counsel (IAC) claim, 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
9
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. I need not address both prongs of the Strickland inquiry if
Applicant’s claim fails on one. Id. at 697.
1. Claims one and two
Applicant asserts in claim one that his trial counsel was ineffective in the manner
in which he handled the POWPO charge. [# 10, at 10-12]. Applicant had previously
been convicted, and sentenced to probation, for the crime of “aggravated driving with a
revoked license.”4
Specifically, Applicant asserts that trial counsel should have:
•
objected to a probation officer’s testimony that Applicant was previously
on probation in a different criminal case and had violated the terms of his
probation;
•
requested bifurcation of the POWPO charge;
•
objected to the prosecutor’s opening statement to the jury that Applicant
was a prior convicted felon.
[Id. at 10].
Applicant contends in claim two that trial counsel was ineffective when he
advised the trial court that Applicant would plead guilty to the POWPO charge during his
trial for second degree murder. [Id. at 12]. Applicant maintains that he was prejudiced
4
State Court R., 11/29/05 Trial Tr., at 30.
10
at trial by counsel’s deficient performance because the jury’s verdict finding him guilty of
second degree murder was influenced by the knowledge that Applicant had a prior
felony conviction and had violated the terms of his probation. [Id. at 11, 13].
a. procedural history in the state courts
The trial court held an evidentiary hearing on Applicant’s state post-conviction
motion (“Rule 35(c) hearing”). Applicant testified that he did not know why counsel
recommended that he plead guilty to the POWPO charge in the middle of his second
degree murder trial, and that he did not understand the trial court’s plea advisement.5
Trial counsel testified at the hearing that he recommended Applicant plead guilty
because Applicant had admitted in his written and verbal statements to police that he
possessed the weapon that killed the victim and there was “no question” that Applicant
was guilty of the POWPO charge.6 In counsel’s judgment, because the evidence
supporting the charge was overwhelming, it was important to be forthright with both the
court and the jury.7
The state district court denied Applicant’s request for post-conviction relief on the
ground that Applicant made the decision to plead guilty after an extensive plea hearing.8
In Smith II, the state appellate court affirmed the district court’s ruling on the
following grounds:
We conclude that counsel’s representation on this matter was sufficient.
As the trial court noted, ultimately, defendant is responsible for pleading
5
State Court R., 12/9/10 Hrg. Tr., at 111-112.
6
Id. at 163.
7
Id. at 163-164.
8
State Court R., Court File, at 373.
11
guilty. [People v.] Bergerud, 223 P.3d [686,], 693-94 [(Colo. 2010)] (“The
decision] . . . whether to plead guilty . . . cannot be made by defense
counsel, but rather must be made by the defendant himself.”).
Considering the evidence presented at trial against defendant, specifically
defendant’s own statements that he possessed the gun, we are unable to
conclude that the strategy of defendant’s conceding the [weapons
possession] charge in order to gain credibility with the jury and court was
necessarily flawed. Cf. People v. Rodriguez, 914 P.2d 230, 298 (Colo.
1996) (counsel was not ineffective for conceding the defendant’s
participation in events leading to the death of the victim in order to avoid
losing credibility with the jury); Davis [v. People], 871 P.2d [769,] 777
[(Colo. 1994)] (counsel was not ineffective for acknowledging the strength
of the prosecution’s case and instead focusing on reducing the
defendant’s sentence “[r]ather than attempting to ‘argue the absurd’”). And
while the timing of the guilty plea might be criticized, “[t]he constitutional
right to effective assistance of counsel ‘is not a guarantee against
mistakes of strategy or exercise of judgment in the course of a trial as
viewed through the 20-20 vision of hindsight following the return of a
verdict in a criminal case.’” [People v.] Gandiaga, 70 P.3d [523,] 525
[(Colo. App. 2002)] (quoting Dolan v. People, 168 Colo. 19, 22-23, 449
P.2d 828, 830 (1969)).
[# 18-3, at 11-12].
b. Application of AEDPA standard of review
I and find and conclude that the Colorado Court of Appeals’ resolution of
Applicant’s first and second claims challenging trial counsel’s decisions concerning the
POWPO charge was consistent with Strickland. The state appellate court’s finding that
counsel’s decisions constituted reasonable trial strategy was not “so lacking in
justification that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Richter, 131 S.Ct. at 786-87.
Furthermore, even if defense counsel had moved to sever the POWPO charge
from the second degree murder trial, the jury would have learned about Applicant’s prior
felony conviction. Applicant’s statements to the police that he possessed a gun and
12
used it to shoot the victim were admitted at trial through the testimony of the
Undersheriff. On cross examination, the defense further questioned the Undersheriff
about Applicant’s hearsay statements in order to establish self-defense.9 Under those
circumstances, evidence of Applicant’s prior felony conviction was admissible. In
People v. Kruger, 296 P.3d 294, 308 (Colo. App. 2012), the state appellate court
concluded:
W[h]ere a defendant does not testify at trial, but he or she elicits his or her
own hearsay statements through another witness, CRE 806 authorizes the
jury to hear impeachment evidence that would have been admissible if the
defendant had testified because, in such circumstances, the defendant is
in essence functioning as a witness on his or her own behalf.”)
(internal citation and quotation marks omitted). See also COLO. REV. STAT. (“C.R.S.”)
§ 13-90-101 (2014) (“[T]he conviction of any person for any felony may be shown for the
purpose of affecting the credibility of such witness.”).
And, finally, even if the prior felony would not have been admissible for
impeachment purposes, Applicant has not established any prejudice from counsel’s
failure to request bifurcation of the POWPO charge. It was undisputed that Applicant
shot the victim with a firearm he kept in his bus. The only issue at trial was whether the
shooting was legally justified. Applicant relied on his voluntary statement to the
Undersheriff to establish self defense. However, the Undersheriff’s testimony undercut
that theory10 and the jury was not persuaded. In his § 2254 Application, Applicant
merely speculates that he was prejudiced by evidence of: his prior felony conviction for
aggravated driving with a revoked license; and, his violation of probation by possessing
9
State Court R., 11/29//05 Trial Tr., at 235-249; 11/30/05 Trial Tr., at 32-39.
10
See id., 11/29/05 Trial Tr., at 215-17, 235-49; 11/30/05 Trial Tr., at 32-61; 81-100. See also
11/28/05 Trial Tr., at 234-37.
13
a firearm and testing positive for the use of marijuana and alcohol.11 However, this
information was not inherently prejudicial in a second degree murder case and “it is
well-established that . . . speculation alone cannot give rise to a ‘reasonable probability’
that the outcome of the trial would have been different.” Byrd v. Workman, 645 F.3d
1159, 1173 (10th Cir. 2011); see also United States v. Boone, 62 F.3d 323, 327 (10th
Cir. 1995) (“[A]ll that the Defendant urges is speculation, . . . [and] [a]ccordingly, he
cannot establish prejudice.”).
Accordingly, claims 1 and 2 lack merit and will be dismissed.
2. Claim three
For his third claim, Applicant contends that trial counsel was ineffective in failing
to present a defense under Colorado’s “make my day” statute because the victim’s entry
onto Applicant’s bus immediately prior to the shooting was unlawful. [# 10, at 14].
The statute states, in pertinent part:
[A]ny occupant of a dwelling is justified in using any degree of
physical force, including deadly physical force, against another person
when that other person has made an unlawful entry into the dwelling, and
when the occupant has a reasonable belief that such other person has
committed a crime in the dwelling in addition to the uninvited entry, or is
committing or intends to commit a crime against a person or property in
addition to the uninvited entry, and when the occupant reasonably
believes that such other person might use any physical force, no matter
how slight, against any occupant.
§ 18-1-704.5(2), C.R.S. (2014).
“[A]n unlawful entry means a knowing, criminal entry into a dwelling.” People v.
McNeese, 892 P.2d 304, 31 (Colo.1995). See also id. at 310 (“The legislative history
indicates that the General Assembly intended the “make-my-day” statute to apply in
11
Id., 11/29/05 Trial Tr., at 29-45.
14
situations where an intruder illegally enters a dwelling. The hearings and debates also
demonstrate that the bill was meant to deter criminals from breaking into a home to
commit a crime.”).
a. state court proceedings
At trial, several witnesses testified that Applicant and the victim had been
drinking in Applicant’s bus together earlier on the day the victim was shot.12 There was
no evidence at trial describing the victim’s entry to the bus immediately prior to the
shooting.
At the Rule 35(c) hearing, Applicant testified that the victim “barged” onto his bus
uninvited, was “out of control,” and that once on the bus, the victim pulled a knife out of
the back of his pants, at which point he and the Applicant engaged in a wrestling match
before Applicant shot him.13
Applicant’s trial counsel testified at the Rule 35(c) hearing that he did not believe
the “make my day” statute applied to Applicant’s case because Applicant did not
indicate to him or the defense investigator before trial that the victim’s entry onto his bus
was uninvited.14 Instead, Applicant told him that he and the victim had been in the bus
together drinking earlier that day.15 Counsel further testified that nothing in the
discovery suggested that the victim entered the Applicant’s bus unlawfully.16
12
State Court R., 11/28/05 Trial Tr., at 44, 72, 83, 106; 11/29/05 Trial Tr., at 58, 157.
13
Id.,12/9/10 Hrg. Tr., at 105-07, 139.
14
Id. at 158-59, 212.
15
Id.
16
Id. at 159, 204.
15
The state post-conviction court denied Applicant’s Rule 35(c) motion, concluding,
in relevant part, that the “make my day” defense was inapplicable given that there was
no evidence at trial that the victim entered Applicant’s bus unlawfully.17
In Smith II, the Colorado Court of Appeals addressed Applicant’s IAC claim as
follows:
We conclude that defendant failed to establish that counsel’s
performance on this issue was deficient, considering the conflicting
testimony about the victim’s permission to enter defendant’s bus.
This is a matter of trial strategy left to the discretion of counsel and
his decision not to argue the make my day statute, based in part on
defendant’s own account of the events that night and evidence that
tended to show that the victim was a frequent invitee, was not
outside the wide range of professionally competent assistance on
this issue. See Strickland, 466 U.S. at 689; People v. Bergerud, 223
P.3d 686, 693 (Colo. 2010) (“[T]he right to an attorney is not a right
to a mouthpiece or marionette, but rather to competent counsel
who will employ her own professional expertise in effectively
representing her client’s interests.”); see also People v. Isham, 923
P.2d 190, 196 (Colo. App. 1995) (the defendant’s own statements or
actions may influence counsel’s decision to continue or discontinue
investigation).
[# 18-3, at 6-7].
b. application of AEDPA standard of review
There was no evidence at trial to support a reasonable inference that the victim
entered the Applicant’s dwelling unlawfully at the time the victim was shot. Further,
although Applicant testified at the Rule 35(c) hearing that the victim’s entry onto his bus
was uninvited, he did not state that he gave this information to defense counsel or the
defense investigator prior to trial. As such, counsel’s strategic decision not to assert a
17
Id., Court File, at 373.
16
“make my day” defense was one of reasonable trial strategy. See Anderson v. Attorney
Gen. of Kansas, 425 F.3d 853, 859 (10th Cir. 2005) (“Whether to raise a particular
defense is one aspect of trial strategy, and informed strategic or tactical decisions on
the part of counsel are presumed correct, unless they were completely unreasonable,
not merely wrong.”) (internal quotation marks and citation omitted). Cf. Rodriguez, 914
P.2d at 295 (defense counsel’s failure to investigate or present mitigating evidence does
not constitute ineffective assistance when the essential and foundations information
required to trigger such an investigation is withheld from the defendant’s counsel by the
defendant himself).
Moreover, Applicant was not prejudiced by counsel’s failure to raise a “make my
day” defense because, under Colorado law, a “defendant is entitled to a jury instruction
stating an affirmative defense [only] if there is evidence presented to support such a
defense. . .” People v. Mossmann, 17 P.3d 165, 169 (Colo. App. 2000) (citing People v.
Fuller, 781 P.2d 647, 651 (Colo. 1989)); accord Spears v. Mullin, 343 F.3d 1215, 1251
(10th Cir. 2003) (rejecting habeas petitioner’s claim that trial counsel was ineffective in
failing to request jury instructions on certain defenses where the evidence did not
support giving the instructions under state law).
I find and conclude that the state appellate court’s resolution of Applicant’s claim
comported with Strickland. Claim three lacks merit and will be dismissed.
B. Claims Four and Five
In claim four, Applicant contends that trial counsel was ineffective in (a)
requesting a competency evaluation for Applicant; and, (b) thereafter failing to explain to
Applicant the consequences of not waiving his right to speedy trial. [# 10, at 15].
17
For his fifth claim, Applicant contends that the trial court violated his constitutional
rights by failing to grant a request for substitution counsel.
[# 10, at 16].
I address claims four and five together because they arise from the same pre-trial
motions and proceedings.
a. state district court proceedings
Less than two months before trial, defense counsel filed a motion to withdraw
based on an “irreconcilable conflict” between counsel and Applicant that “prevent[ed]
the necessary cooperation and communication . . . that must exist in order for
[defendant] to assist his attorney in the defense of these serious charges.”18 Defense
counsel maintained that Applicant was dissatisfied with his representation, believed that
counsel “sold him down the river,” and did not trust counsel’s opinion.19 Counsel also
filed a motion to determine the Applicant’s competency to proceed to trial.20
On September 14, 2005, the trial court held a hearing on defense counsel’s
motion. In Smith I, the Colorado Court of Appeals made the following factual findings in
conjunction with that hearing:
[At the hearing], the court questioned defendant about his
communication with his counsel. Defendant stated that he could
communicate with him and that he understood what he said, but his
counsel was not explaining what he wanted to know. When the court
asked defendant if the problem resulted from a “difference of opinion”
about “how the case should go,” defendant responded that he had
questions about his case and had a “hard time” trusting his counsel
because he “grits his teeth, raises his voice, and hollers at me.” Defendant
18
State Court R., Court File, at 67.
19
Id.
20
Id. at 65.
18
then indicated that he could get along with counsel if he did not raise his
voice, but was concerned it would happen again.
Defendant’s counsel stated that defendant did not believe the
advice he gave him and was raising issues that did not have anything to
do with his case.
The court denied counsel’s motion to withdraw, concluding that “it
sounds like the issues are surrounding strategy in the case and not so
much surrounding some kind of a personality conflict or communication
breakdown that’s total in nature.” The court instructed defendant to file a
motion if at some point his relationship with his counsel was “not at all
viable.”
[#18-2, at 6-7].21 The trial court then stayed the proceedings and granted counsel’s
request that Applicant undergo a competency evaluation.22
On September 20, 2005, Applicant filed, pro se, a “Motion for Removal of
Appointed Counsel,” in which he asserted that he did not trust his counsel’s judgment;
that his counsel had only met with him once; and that his counsel “snarl[s], shows his
teeth, acts mean, raises his voice, hollers and tells defendant shut up, be quiet, and
trust him.”23
Another motions hearing was held on November 10, 2005, approximately two
weeks before trial. Upon reviewing the competency evaluation, the trial court concluded
that Applicant was competent to proceed to trial.24 The court then addressed
Applicant’s motion requesting substitute counsel.25 Defense counsel pointed out the
21
See also State Court R., 9/14/05 Hrg. Tr.
22
Id.
23
Id., Court File, at 74.
24
Id., 11/10/05 Hrg. Tr., at 2-3.
25
Id. at 3.
19
competency evaluator’s additional finding in the report that Applicant was not capable of
cooperating with defense counsel.26 Defense counsel further informed the court that
Applicant wanted to make legal decisions that were within counsel’s province and
disagreed with decisions that counsel had made.27 The court stated, “[W]hen I hear the
different problems between you and [defendant], I keep hearing strategy, a difference of
opinion on strategy.”28 The trial court asked Applicant if he wished to proceed pro se.29
Applicant advised the court that he did not want to represent himself at trial and he
refused to waive his speedy trial deadline, which was 15 days hence.30 The Court told
Applicant that without waiving the state statutory speedy trial deadline, he could not be
appointed new counsel, who would require additional time to prepare for trial.31
Applicant agreed to proceed to trial with his current defense counsel.32 Counsel then
requested a short recess to discuss the issue with Applicant.33 After conferring with
counsel, Applicant remained steadfast in his decision to proceed to trial with current
counsel before the speedy trial date elapsed.34
26
Id. at 4.
27
Id., at 4-5.
28
Id. at 5.
29
Id. at 8.
30
Id. at 7-9.
31
Id.
32
Id. at 9.
33
Id. at 12.
34
Id. at 13.
20
At the Rule 35(c) hearing, both Applicant and trial counsel testified that, prior to
trial, counsel met with Applicant at the Bent County Jail to discuss his case. Their
recollections of that meeting did not coincide. Application testified that counsel met him
in the law library, and started hollering at him, which upset Applicant to the point that he
terminated the interview.35 By contrast, trial counsel testified that when he met the
Applicant at the jail, Applicant was obstinate, denied any responsibility for the victim’s
death, and refused to discuss his use of alcohol and drugs to the extent that “he was
just denying . . . reality.”36 Based on that interaction, counsel determined that Applicant
was unable to assist with his defense and asked the trial court to have Applicant
evaluated.37
Trial counsel also testified at the Rule 35(c) hearing that in addition to the
meeting at the jail, he met with Applicant a few times at the courthouse to discuss the
case and that counsel’s defense investigator submitted reports to counsel describing
the investigator’s meetings with Applicant, witness interviews, and a crime scene visit.38
b. application of AEDPA to claim four
In Smith II, the Colorado Court of Appeals affirmed the state district court’s
denial of post-conviction relief on the following grounds:
We are unable to conclude that counsel’s decision to order a
competency evaluation of defendant was outside the wide range of
professionally competent assistance. While the choice to have
defendant evaluated may have harmed their already distressed
35
Id., 12/9/10 Hrg. Tr., at 69-73.
36
Id., at 183, 189-91.
37
Id.
38
State Court R., 12/9/10 Hrg. Tr., at 158, 167-68.
21
relationship, counsel testified that he believed defendant was
unable to assist in his own defense. Having defendant evaluated
was a strategic choice available to, and made by, counsel in this
case. Bergerud, 223 P.3d at 693 (“‘[W]hen a defendant chooses to
have a lawyer manage and present his case, law and tradition may
allocate to the counsel the power to make binding decisions of trial
strategy in many areas.’”) (quoting Faretta v. California, 422 U.S.
806, 820 (1975)); People v. McCormick, 181 Colo. 162, 167, 508
P.2d 1270, 1273 (1973) (“Mere disagreement as to trial strategy
does not equate with ineffective assistance of counsel.”).
And although the competency report did not return the finding
that defendant could not assist in his own defense, it was made
clear that defendant was unable to cooperate in his defense, leading
credence to counsel’s suspicions. Defendant’s subsequent refusal to
waive his speedy trial rights was made of his own volition and after
discussion with the trial court. Counsel also asked for, and received, a
recess in which to discuss the waiver with defendant. While defendant
may now regret the decision he made, counsel was not ineffective in
allowing defendant to make his election. See Bergerud, 223 P.3d at
693-94 (“Decisions such as whether to plead guilty, whether to testify,
whether to waive a jury trial, or whether to take an appeal are so
fundamental to a defense that they cannot be made by defense counsel,
but rather must be made by the defendant himself.”).
[# 18-3, at 8-10].
Under Colorado law, the defense may request a competency evaluation if
counsel “has reason to believe that the defendant is incompetent to proceed.” § 16-8.5102(2)(b), C.R.S. (2014). A defendant is competent to stand trial when he
“does not have a mental disability or developmental disability that prevents [him] from
having sufficient present ability to consult with [his] lawyer with a reasonable degree of
rational understanding in order to assist in the defense . . . .” §16-8.5-101(4), C.R.S.
(2014). Even though counsel’s basis for requesting the competency evaluation was
thin, I cannot conclude that no “reasonable argument [exists] that counsel satisfied
Strickland’s deferential standard.” See Richter, 131 S.Ct. at 788.
22
Furthermore, Applicant has failed to demonstrate that he was prejudiced as a
result of undergoing a competency evaluation, or the resulting two-month delay in the
state criminal proceeding. Two weeks before trial, Applicant was given the choice of
waiving speedy trial to obtain substitute counsel, or proceeding to trial with his
appointed counsel. However, contrary to Applicant’s assertions that he did not
understand the consequences of his decision not to waive speedy trial, the state
appellate court found that both the trial court and defense counsel explained those
consequences to Applicant. These factual findings are presumed correct, are
supported by the state court record,39 and have not been rebutted by Applicant.
Moreover, Applicant’s speculation that he might have been acquitted of second degree
murder had he waived speedy trial and been represented by a different attorney at trial
is insufficient to demonstrate prejudice under Strickland. See Byrd, 645 F.3d at 1173;
Boone, 62 F.3d at 327.
I find and conclude that the Colorado Court of Appeals’ determination was a
reasonable application of Strickland. Accordingly, claim four lacks merit and will be
dismissed.
c. application of AEDPA to claim five
In Smith I, the Colorado Court of Appeals rejected Applicant’s claim that the trial
court erred in failing to appoint substitute counsel based on the following reasoning:
A defendant’s fundamental right to counsel is guaranteed by the
Sixth Amendment and is essential to a fair trial. U.S. Const. amend. VI;
People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). “The right to counsel
guarantees only competent representation, and does not necessarily
include ‘a meaningful attorney-client relationship.’” Arguello, 772 P.2d at
39
See State Court R., 11/10/05 Hrg. Tr.
23
92 (quoting in part Morris v. Slappy, 461 U.S. 1, 14 (1983)); see also
People v. Kelling, 151 P.3d 650, 653 (Colo. App. 2006) (“an indigent
defendant is entitled to effective appointed counsel”); Hodges, 134 P.3d at
425 (“the defendant does not have the right to demand a particular
attorney”); People v. Jenkins, 83 P.3d 1122, 1125 (Colo. App. 2003) (“[a]n
indigent defendant is entitled to effective appointed counsel” but not to
counsel of his choice).
...
We first conclude that the trial court did not abuse its discretion
when it found that there had not been a complete breakdown in
communication. When defendant was questioned by the court, he
admitted that he understood what his counsel told him and could
communicate with him. Further, the record supports the court’s conclusion
that the problem between defendant and his counsel was due to
disagreements over strategy. Defendant’s counsel stated that defendant
raised issues unrelated to his case, wanted to make legal decisions that
were within an attorney’s province to make, and disagreed with decisions
he had made.
The record discloses that a central disagreement between
defendant and counsel stemmed from defendant’s reluctance to
acknowledge that he had a gun and had been drinking, both facts
constituting breaches of his probation. Yet defendant was quite willing to
argue self-defense and intoxication, which seem to contradict his desire to
deny the probation violation. These concerns relate to trial tactics and as
“the captain of the ship,” counsel’s choice of tactics do not rise to the level
of a complete breakdown in communication simply because defendant did
not agree with or even understand those tactics. See Steward v. People,
179 Colo. 31, 34, 498 P.2d 933, 934 (1972) (“Defense counsel stands as
captain of the ship in ascertaining what evidence should be offered and
what strategy should be employed in the defense of the case.”); People v.
Arko, 159 P.3d 713, 723 (Colo. App. 2006) (cert. granted Apr. 30, 2007)
(“As ‘captain of the ship,’ defense counsel has broad authority regarding
the conduct of the litigation, particularly when it comes to tactical and
strategic choices.”).
Also, in denying defendant’s motion, the court properly considered
the amount of time remaining before defendant’s speedy trial deadline.
See People v. Schultheis, 638 P.2d 8, 15 (Colo. 1981) (the court may
consider the period of time that has elapsed between the date of the
alleged offense and trial).
[#18-2, at 9-12].
24
The state appellate court also rejected Applicant’s allegations that there was a
conflict of interest between him and his attorney that warranted a substitution of
counsel:
On appeal, defendant now asserts that his attorney had a conflict of
interest created by their “extreme animosity.” However, defendant must
show some record support for his contention that there was an actual
conflict of interest and that such conflict adversely affected his
representation. The existence of animosity between defendant and his
counsel is insufficient in and of itself to constitute a conflict of interest.
Further, defendant has failed to show that his trial counsel’s performance
was affected by animosity. We note that the court stated in a post-trial
hearing on defendant’s second pro se motion to substitute counsel that it
did not observe any deficiency in counsel’s performance at trial.
[Id. at 14].
Initially, I find and conclude that the state appellate court's resolution of
Applicant's claim could not have been contrary to, or an unreasonable application of
Supreme Court law. To date, the Supreme Court has not articulated a standard for
deciding a Sixth Amendment claim based on a habeas petitioner's allegation the trial
court denied his request for substitute counsel. See, e.g., Peterson v. Smith, 510 F.
App'x 356, 2013 WL 49565, at *10 (6th Cir. Jan. 3, 2013) (unpublished) (trial court's
failure to make sufficient inquiry into a defendant's request for substitute counsel cannot
be the basis for relief under AEDPA because such inquiry is not required by clearly
established Supreme Court precedent). Accord Marshall v. Rodgers, 133 S.Ct. 1446,
1450 (2013) (given that Supreme Court has never addressed how the Constitution
applies to a defendant’s request for counsel after waiving counsel, state’s test could not
be said to be “contrary to” Supreme Court case law, regardless of fact that it was
contrary to Ninth Circuit’s own test).
25
The Supreme Court has made it clear, however, that the Sixth Amendment does
not guarantee “a ‘meaningful relationship’ between an accused and his counsel.”
Morris, 461 U.S. at 14. The Supreme Court has also concluded that “the right to
counsel of choice does not extend to defendants who require counsel to be appointed
for them.” United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006) (citing Wheat v.
United States, 486 U.S. 153, 159-60 (1988)). Indeed, the Supreme Court has
“recognized a trial court’s wide latitude in balancing the right to counsel of choice
against the needs of fairness, and against the demands of its calendar.” GonzalezLopez, 548 U.S. at 151 (internal quotation marks omitted).
Based on the above authority, I find that the state appellate court’s decision was
not contrary to, or an unreasonable application, of Supreme Court law, see Hatch, 527
F.3d at 1018. Therefore, Applicant cannot prevail on claim five unless he demonstrates
that the state appellate court’s decision was unreasonable in light of the evidence
presented in the state court proceeding.
The following legal standards, articulated by the Court of Appeals for the Tenth
Circuit, inform my analysis. Substitution of counsel is not warranted unless the
defendant shows “good cause, such as a conflict of interest, a complete breakdown of
communication or an irreconcilable conflict which leads to an apparently unjust verdict.”
United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987) (§ 2255 action) (quoting
McKee v. Harris, 649 F.2d 927, 931 (2nd Cir.1981)). A complete breakdown in
communication occurs when there is a severe and pervasive conflict between the
defendant and his attorney, or evidence of minimal contact with the attorney rendering
meaningful communication impossible. See United States v. Lott, 310 F.3d 1231, 1249
26
(10th Cir. 2002). To warrant substitution counsel, the “breakdown in communication . . .
cannot be the result of a defendant's unjustifiable reaction to the circumstances of his
situation.” Romero v. Furlong, 215 F.3d 1107, 1114 (10th Cir. 2000). “A mere
‘disagreement about trial strategy does not require substitution of counsel.’” Lott, 310
F.3d at 1249 (citing United States v. Taylor, 128 F.3d 1105, 1110 (7th Cir.1997)).
The Colorado Court of Appeals’ factual findings that there was not a complete
breakdown in communication or an actual conflict of interest between Applicant and
defense counsel (based on their “extreme animosity” for each other) are presumed
correct and are supported by the state court record.40 Applicant does not point to any
clear and convincing evidence to contradict the state appellate court’s findings that
Applicant was able to communicate with his attorney, despite their differences in opinion
over trial strategy. “The Sixth Amendment provides no right to counsel blindly following
defendant's instructions.” Padilla, 819 F.2d at 956 (citing McQueen v. Blackburn, 755
F.2d 1174, 1178 (5th Cir.1985)). Moreover, when Applicant entered his guilty plea to
count 4 of the Information - possession of a weapon by a previous offender – at the
close of the prosecution’s case, and following his waiver of the right to testify on his own
behalf, Applicant told the trial court that he was satisfied with his attorney’s
representation.41 And, although the relationship between Applicant and trial counsel
was antagonistic, there is nothing in the state trial court proceedings to suggest that
40
State Court R., 11/10/05 Hrg. Tr.
41
Id., 12/1/05 Hrg Tr., at 9-10.
27
their conflicts resulted in an unjust verdict.42 As such, I find that the Colorado Court of
Appeals’ determination was reasonable in light of the evidence presented in the state
court proceeding. The allegations in claim five lack merit and will be dismissed.
C. Claim Six
For his sixth claim, Applicant contends that his constitutional rights were violated
when the police failed to collect and preserve a knife found at the crime scene. [# 10, at
17].
Under California v. Trombetta, 467 U.S. 479, 489 (1984), the State may not
destroy evidence with “an exculpatory value that was apparent before it was destroyed”
where the evidence might not be available to the defendant through other means. The
State’s failure to preserve potentially exculpatory evidence violates the Constitution only
if law enforcement authorities acted in bad faith. See Arizona v. Youngblood, 488 U.S.
51, 57-58 (1988).
In Smith I, the state appellate court determined the following with respect to the
claim:
“The Due Process Clause of the Fourteenth Amendment mandates
that the state disclose to criminal defendants favorable evidence that is
material to either guilt or punishment.” People v. Braunthal, 31 P.3d 167,
172 (Colo. 2001). When state agents can collect and preserve evidence in
the performance of their routine procedures, their failure to do so is
likened to the suppression of evidence. See People v. Greathouse, 742
P.2d 334, 337-38 (Colo. 1987); see also People v. Casias, 59 P.3d 853,
42
I note that although Applicant asserts a “conflict of interest” between him and his attorney
because of their acrimonious relationship, Applicant does not allege that his attorney engaged in multiple
or concurrent representation, so as to trigger the presumption of prejudice recognized in Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980). See Montoya v. Little, No. 11-1188, 53 F. App’x 496, 498 (10th Cir.
Nov. 20, 2002 (recognizing that Aug. 17, 2011) (unpublished) (stating that Cuyler’s presumption of
prejudice standard has not been extended by the Supreme Court outside the context of multiple
representation, citing Mickens v. Taylor, 535 U.S. 162, 176 (2002)).
28
856 n.6 (Colo. 2002) (“[i]n certain narrow situations, the failure to collect
evidence may be tantamount to the suppression of evidence”).
[I]n order to establish a due process violation for failure to preserve
potentially exculpatory evidence, the defendant must establish that: (1) the
evidence was suppressed or destroyed by the prosecution; (2) the
evidence possessed an exculpatory value that was apparent before it was
destroyed; and (3) the defendant was unable to obtain comparable
evidence by other reasonably available means. People v. Enriquez, 763
P.2d 1033, 1036 (Colo. 1988); see also Braunthal, 31 P.3d at 173;
Greathouse, 742 P.2d at 337-38.
Here, defendant has not established two of the test’s three prongs.
First, the record does not establish that the evidence was suppressed or
destroyed by the prosecution. Defendant argued at trial that he shot the
victim in self-defense after the victim threatened and cut him with a knife.
When the police officers initially collected evidence at the crime scene,
defendant explained that he received cuts while working on a car. He also
told the officers that the victim had left the premises on foot. At the time,
he said nothing to indicate that a knife or the victim’s truck was involved in
the victim’s death. Defendant’s own actions led the officers away from
discovery of the knife.
The police officers testified at trial that they did not initially collect
the knife because there was no indication that a knife was involved in the
murder and, therefore, it was not relevant to their investigation. The knife
only became relevant to their investigation two days later when defendant
confessed and claimed the victim slashed at him with a knife. The officers
then returned to the crime scene and obtained the knife from T.H. Based
on these circumstances, and because any claim that the knife might have
exculpatory value was not made known to the police at the time of their
first search and investigation, the record does not support any conclusion
that the prosecution suppressed or destroyed the evidence. See Enriquez,
763 P.2d at 1036.
Second, the record does not contain evidence that the knife had
exculpatory value. The initial test for occult blood was inconclusive.
Indeed, a technician testified that she could not determine if the knife had
any blood on it.
We acknowledge defendant’s argument that the delay in collecting
the knife allowed exculpatory evidence to be destroyed because T.H. had
an opportunity to wipe off the knife before turning it over to the police.
Defendant put the knife back into its sheath and placed it in the victim’s
truck. T.H. testified that she put the knife in a bag with some clothing and
that she did not wash or clean the knife. This does not change our view
29
that defendant has failed to establish that exculpatory evidence was
destroyed by the investigating officers.
[#18-2, at 19-21].
I find and conclude that the Colorado Court of Appeals’ decision was a
reasonable application of Trombetta and Youngblood. Again, the state appellate court’s
factual findings are presumed correct and are supported by the state court record.43
The police did not suppress the knife, but instead recovered it and made it available to
the defense after Defendant informed officers about the knife’s potential relevance to
the case. Police officers had no knowledge that a knife may have been involved in the
shooting at the time they initially collected evidence from the crime scene, before
Applicant made his voluntary statement to the Undersheriff. At that time, the knife had
only potential exculpatory value. There is nothing in the state court record to suggest
that law enforcement authorities acted in bad faith in failing to secure the knife from the
outset of the investigation, before T.H. took possession of it while cleaning out the
victim’s truck. See Youngblood, 488 U.S. at 57-58. Although Applicant asserts in his
traverse that the police initially collected the knife from the crime scene and then gave it
to a third person [# 29, at 17], this allegation is refuted by the state court record.
Moreover, once the knife was tested for the presence of blood, the test was
inconclusive. And, finally, even if T.H. tampered with the knife while it was in her
possession, unbeknownst to law enforcement officers, that conduct is not attributable to
the police.
Accordingly, claim six lacks merit and will be dismissed.
43
See State Court R., 11/28/05 Trial Tr., at 243; 11/29/05 Trial Tr., at 81-83, 139, 217-19;
11/30/05 Trial Tr., at 22-25, 48, 59, 149.
30
D. Claim Seven
For his seventh and final claim, Applicant asserts that the trial court violated his
constitutional rights by denying newly-appointed sentencing counsel’s request for a
continuance of the sentencing hearing to allow him to obtain the trial transcripts in order
to present evidence in mitigation of punishment. [#10, at 18].
1. State court proceedings
After trial, Applicant filed another pro se motion to substitute his counsel.44 The
trial court granted the motion, even though the court did not find good cause for the
substitution.45 Applicant’s sentencing counsel entered his appearance on February 7,
2006 and the court set the sentencing hearing for March 28, 2006.46 On February 23,
2006, sentencing counsel filed a motion to continue the sentencing hearing for sixty
days because he had not yet reviewed the discovery or obtained the trial transcripts.47
The trial court did not rule on the motion before the sentencing hearing.
At the March 28, 2006 sentencing, Applicant’s counsel asked the court to
address his motion for a continuance because he had not received the trial transcripts.48
Counsel confirmed that he had received the discovery.49 The sentencing court denied
the request for a continuance because counsel was not able to explain why his review
44
State Court R., Court File, at 149.
45
Id. at 160; see also id., 1/25/06 Hrg. Tr.
46
Id., 2/7/06 Hr. Tr.
47
Id., Court File, at 165.
48
Id., 3/28/06 Hrg. Tr., at 3.
49
Id. at 4.
31
of the trial transcripts was necessary in order to proceed with sentencing.50 Counsel
declined to present any evidence at the sentencing hearing because he had not
received the trial transcripts.51 The sentencing court then verified with defense counsel
that he had received a copy of the pre-sentence report and the supplemental presentence report before the sentencing hearing.52
In Smith I, the Colorado Court of Appeals rejected Applicant’s claim on the
following grounds:
We conclude that the trial court did not abuse its discretion when it
refused to continue the sentencing hearing. Although defendant had the
right to present evidence in mitigation of his punishment, see §
16-11-102(5), C.R.S. 2007; Crim. P. 32(b), and although the trial
transcripts may have been helpful to defendant’s counsel in preparing for
the sentencing hearing, he had other sources – namely, the discovery,
defendant, defendant’s trial counsel, and the presentence report –
available from which to learn of any mitigating factors. We note that
defendant’s counsel did not even talk to defendant nor review the
discovery he had in his possession prior to the sentencing hearing even
though he had more than a month and a half to do so. See Leyba v.
People, 174 Colo. 1, 5, 481 P.2d 417, 419 (1971) (no abuse of discretion
in denying a continuance where defendant’s counsel had a reasonable
period of time to prepare for trial).
Further, now that defendant has the transcripts available on appeal,
he has not pointed to a single mitigating factor which was only available in
the transcripts and not discernable from the other information which had
been provided before the hearing. See Cruthers, 124 P.3d at 888-89.
Defendant’s reliance on People v. Wright, 672 P.2d 518 (Colo.
1983), is misplaced. In Wright, the defendant was precluded from
presenting mitigating evidence in response to the presentence report
because he did not receive the report until the day of the hearing. Here,
defendant received the presentence report in a timely manner and had
more than a month and a half to prepare for the hearing.
50
Id. at 5.
51
Id. at 7.
52
Id. at 8.
32
[#18-2, at 17-18].
2. application of AEDPA standard of review
The Supreme Court has not addressed the issue of whether the Constitution
requires a continuance of the sentencing proceeding in circumstances similar to those
presented in Applicant’s case. Rather, the Supreme Court has held that a sentence
may not be based on misinformation of “constitutional magnitude.” United States v.
Tucker, 404 U.S. 443, 447 (1972).
I find and conclude that the state appellate court’s decision comported with
applicable Supreme Court law and was reasonable in light of the evidence presented in
the state court proceeding. Applicant has not pointed to any misinformation relied on by
the state sentencing court, much less misinformation of a “constitutional magnitude.”
See Tucker, 404 U.S. at 447. As such, claim seven lacks merit and will be dismissed.
IV. COA & IFP
Under 28 U.S.C. § 2253(c)(2), this Court may issue a certificate of appealability
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when a prisoner demonstrates that jurists of
reason would find it debatable that a constitutional violation occurred, and that the
district court erred in its resolution. Mr. Smith has not made a substantial showing of
the denial of a constitutional right. Therefore, a certificate of appealability is denied.
Under 28 U.S.C. § 1915(a)(3), the court certifies that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status will be denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Mr. Smith files a notice of appeal, he also must pay the full appellate filing fee or file a
33
motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth
Circuit within thirty days in accordance with Fed. R. App. P. 24.
V. ORDERS
Accordingly, it is ORDERED as follows:
1. That the Amended Application for a Writ of Habeas Corpus
2254 [# 10], filed February 12, 2014, by Applicant, Williard C. Smith, is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That a certificate of appealability SHALL NOT ISSUE under 28 U.S.C. §
2253(c); and
4. That leave to proceed in forma pauperis on appeal is DENIED without
prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal
in the United States Court of Appeals for the Tenth Circuit
Dated May 12, 2015, at Denver, Colorado.
BY THE COURT:
34
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