Ashley v. Travis Trani, et al

Filing 27

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS: The 4 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED. This case is DISMISSED WITH PREJUDICE. There is no basis on which to issue a certificate of appealability un der 28 U.S.C. § 2253(c); and leave to proceed in forma pauperis on appeal is DENIED without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. By Judge Robert E. Blackburn on 11/25/2014. (alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-00239-REB
MARK R. ASHLEY,
Applicant,
v.
TRAVIS TRANI, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Blackburn, J.
This matter is before me on the pro se Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (“the Application”) [#4]1 filed by Applicant Mark
R. Ashley. Respondents filed an Answer [#21], and Mr. Ashley filed a Reply [#26].
After reviewing the pertinent portions of the record in this case, including the
Application, the Answer, the Reply, and the state court record, I conclude that the
Application should be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Ashley is challenging the validity of his conviction and sentence in Denver
District Court case number 02CR1772. The relevant factual background and procedural
history were discussed comprehensively by the Colorado Court of Appeals on appeal

1

[#4] 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.

from the denial of a postconviction motion.
In October 2001, Ashley approached the female
victim, who was using a pay phone outside a convenience
store. He put a knife to her throat and forced her to walk
behind the store to an unlit area. The victim told Ashley she
would give him whatever money she had if he would let her
go. Ashley took $20 from the victim and sexually assaulted
her.
After the assault, the victim contacted the police, who
took her to the hospital where medical personnel prepared a
rape kit, including swabs of her vagina and mouth. The
police also collected her clothing.
The police did not find any DNA evidence from the
swabs, but four months after the assault, it identified semen
on the victim’s underwear. The lab tested the semen and
found DNA. The police compared the DNA with profiles
stored in the national Combined DNA Index System (CODIS)
and found that it was consistent with Ashley’s DNA. Ashley’s
DNA was in CODIS because he had four prior felony
convictions, including a conviction for sexual assault.
After the DNA identification, an investigator compiled
a photographic lineup including a picture of Ashley. The
victim identified Ashley without hesitation from the lineup.
This was the third photographic lineup she had reviewed. In
the two previous lineups (which did not include Ashley), she
did not identify anyone as her assailant.
In March 2002, Ashley was charged with sexual
assault, three sexual assault aggravators, second degree
kidnapping, and aggravated robbery.
The trial court appointed the Office of the Public
Defender to represent Ashley, and Cyrus Callum was
selected to be the lead attorney on the case. Sometime
prior to trial, Karen McGovern from the Public Defender’s
Office joined Callum as co-counsel for Ashley.
At a motions hearing in August 2002, Callum
requested (and was granted) a continuance of the trial
because he had still not received the DNA evidence from the
police lab. In November 2002, during another motions
2

hearing, Ashley personally addressed the court and made
the following oral “Motion for Ineffective Counsel”:
Ashley: Your Honor, . . . I’m requesting Motion
for Ineffective Counsel. . . . Mr. Callum is not
taking enough interest in this case on my
behalf. He has promised to correspond with
me through the mail when I was in DOC
[Department of Corrections] facility, which he
did not do. Promise me visits in the county jail
to discuss discovery from the motion filed two
months, which, once again, he has not
corroborated with me in any way whatsoever.
Your Honor, ‘till this date Mr. Callum has made
no attempt to meet or speak with me
concerning the issues I’m faced with. I am
pleading with the Court that the Court will
assist me with counsel that can better
represent me and defend me in receiving a fair
trial.
The Court: I vaguely remember we went
through this once before and I’m going to deny
your motion. I know Mr. Callum, because of
his motion, to some extent, I guess, [is] still
trying to get everything together, and I know he
also, last time, said he had somebody who was
working with an expert on DNA or somebody
who has more knowledge on that particular
issue . . . .
Ashley: I was supposed to start trial.
Shouldn’t that stuff already been here already,
ready to go? . . . I have to waive my right [to a
speedy trial] because, you know, you guys ain’t
ready or whatever.
Callum: Let’s go to trial. Let’s go to trial.
Ashley: I don’t want to go to trial with you.
Callum: I don’t want to go to trial with you
neither, but let’s go to trial.

3

Ashley: Conflict of interest. . . . . He just said, I
don’t want to go to trial.
Callum: Not under this circumstance, Judge. .
. . [W]e just got the [DNA evidence] Thursday.
. . . It takes them time to put a case together
that has DNA. . . . If he wants to go to trial, it’s
his right, but I don’t want to. And if that’s what
he’s complaining about, I’m only –
Ashley: I’m complaining about no
communication. . . .
Callum: At this point, we have not been in a
place where we can sit down and talk because
we have not had the DNA stuff until Thursday.
Ashley ultimately agreed to waive his right to a speedy trial
so that his counsel could investigate the DNA evidence.
Approximately two months before trial, Callum filed a
motion to exclude the DNA evidence, challenging the
reliability of the testing and results. He also filed a motion to
suppress evidence of the victim’s identification of Ashley
from the photographic lineup. The trial court denied these
motions at a pretrial hearing in January 2003.
The trial court held a final pretrial status conference
on February 24, 2003, the day before trial began. The
transcript of that pretrial conference reflects that McGovern
advised the court that one week earlier, she met in private
with Ashley to notify him of and discuss a plea offer from the
prosecution. Ashley told the court that he “just walked out”
of the meeting with McGovern because he was angry that
McGovern was not concerned about him. McGovern
confirmed that Ashley had walked out of the meeting.
However, at the postconviction hearing in 2010, Ashley
testified differently, stating that, at the meeting in question,
McGovern never told him that there was a plea offer, and
that she had become angry and walked out on him.
At the conference the day before trial, Ashley also
complained again to the trial court regarding his counsel:
Ashley: [M]y public defenders are not . . .
4

representing me. I have not spoke to none of
them at all. They have not seen me. They
have made – they both made incomplete
statements to me. [Callum] stated in
November he didn’t have no desire to deal with
this case. [McGovern] came to see me last
week and . . . I was talking about the issues of
my life and she said straight up, she didn’t
care. You know, . . . that’s impropriety
statements they both have made against me.
Callum: Don’t have a comment.
The Court: What are you asking for?
Ashley: I’m asking for alternative counsel.
The Court: Not going to do that. The other
alternative, you represent yourself.
Ashley: . . . I can’t represent myself. I’m not
saying that.
The Court: Then we’ll start trial tomorrow
morning and if ya’ll [sic] ready to proceed?
Ashley: Your Honor, how do you start trial with
somebody who – I have been locked up for a
year now. They haven’t come to see me,
haven’t came up with defense strategy or
nothing.
The Court: Well, I’m not going to discuss your
case. That’s not –
Ashley: . . . I’m not asking you to discuss it.
I’m just saying . . . I have a case here –
The Court: I – you can raise that on appeal.
I’m not going – what you told me is you don’t
like how they prepared your case.
Ashley: I’m not saying that. I’m saying they
don’t like me or they’re the ones with the
conflict of interest.
5

The Court: Do ya’ll have a conflict of interest?
McGovern: I don’t think so.
The court indicated that trial would proceed the next day.
On the first day of trial, the court informed the jury
venire of the charges and Ashley’s not guilty plea. Prior to
voir dire and outside the presence of the venire, Ashley once
again voiced concerns about his representation:
[Ashley]: I would like to say I don’t agree in
which way my public defenders are taking this
case. And also . . . I would like to file, a motion
to dismiss.
The Court: . . . I believe Mr. Ashley . . . this
motion relates to the same motion that was
made on the record yesterday, and sounds
very similar to the issues you brought up on
that day. . . .
[Ashley]: [T]his pertains to the same thing.
The Court: Sure. Anything else that you’d like
to say at this time?
[Ashley]: No, sir.
The Court: Okay. Your motion is denied.
As pertinent to this appeal, during his opening
statement, Callum stated as follows:
[W]e’re not going to get up here and say that
[Ashley] wasn’t there. His semen was on her
panties. . . . [A]nd you’ll see a photograph of
the driveway with some semen on the
driveway. So we’re not going to come in here
and say he wasn’t there. He was there. But
there was no intercourse. None. . . .
He may have attempted sexual assault, but
you have to consider where the semen is. . . .

6

You said that you could listen to the evidence
and could convict a person of what they did,
and only what they did. . . . [W]e’ll be asking
you to do that. To convict him of only what he
did, and no more.
Ashley did not advise the trial court that he disagreed with
this trial strategy.
During trial, a forensic analyst testified for the
prosecution that the semen found in the victim’s underwear
contained DNA consistent with Ashley’s, and that the
probability that the semen belonged to someone other than
Ashley was less than 1 in 57,724 quadrillion. The analyst
further testified that the genetic material found on the
pavement at the scene also matched Ashley’s, and that the
probability that it belonged to someone else was less than 1
in 211,000. A police officer then testified that the victim had
positively identified Ashley from a photographic lineup.
During the trial court’s Curtis advisement, Ashley
asked, “If I did testify, does that mean they’re able to bring
up all my past felonies . . . in front of the jury?” The trial
court advised Ashley that the prosecution could bring up the
fact that he had prior felony convictions. Ashley then
confirmed his knowing and voluntary decision not to testify.
During Callum’s closing argument, in acknowledging
the evidence adverse to Ashley, he made the following
statements:
This is not a whodunit. We never said it was a
whodunit. We told you from the beginning he
was involved. This is a “what did he do”? . . .
Mr. Ashley ejaculated on her panties that were
down around her ankles, down around her
knees, even before he had an opportunity to
have intercourse with her.
That’s why. That’s why the semen is down
there. That it didn’t run down her hips. That’s
why it’s here and not on her. Because he
didn’t get a chance. . . .

7

I’m going to ask you to disregard your feelings
and to follow the law, and convict Mr. Ashley of
what he did and only of what he did. Convict
him of attempted sexual assault. Convict him
of kidnapping without the sexual assault,
because there’s no sexual assault. This was
an attempt. . . . And find him not guilty of
robbery.
Again, however, Ashley did not indicate to the trial court that
he disagreed with counsel’s trial strategy reflected in these
statements.
During the prosecution’s rebuttal closing argument,
Ashley interrupted and said, “I’m sorry. I didn’t tell this man
nothing that I said, that I committed this crime. I’m innocent.
. . . I’m innocent of these charges.” The trial court sent the
jury to the jury room, and the following exchange occurred:
[Ashley]: How can you go up and say that I did
these things? You’re my attorney. You’re
supposed to be fighting for my rights. . . . You
actually told them that I did it. I told you all
along that I’m innocent of these charges . . . .
The Court: I gave you the opportunity to take
the stand if you wanted to. And you decided
that you did not want to take the stand. You
cannot make statements to the jury at this time.
...
[Ashley]: I have been telling all along I didn’t
agree with what these people are talking about.
. . . That’s why I have been trying to get
alternative counsel, because these people they
think – they didn’t come up and tell me they’re
going to come up and say I actually did that
crime. That’s what I’ve been trying to tell you,
sir. . . .
We never communicated. . . .
The Court: Obviously you disagree with the
way they’re going. Just because there’s a
disagreement with how they choose to defend
8

you and what you believe they should do is not
incompetency of counsel.
These comments by Ashley during the prosecution’s rebuttal
closing argument were the first time he expressly stated to
the court that he disagreed with his counsel’s trial strategy
and wanted, instead, to pursue a total innocence defense.
Ashley continued to assert that his counsel was
incompetent and had violated his constitutional rights by
telling the jury that he was “guilty.” The trial court again
rejected Ashley’s arguments, and brought the jury back into
the courtroom.
After the prosecution resumed its rebuttal, Ashley
asked to leave the courtroom, stating again the he was
innocent. He was escorted out of the courtroom.
The jury found Ashley guilty as charged of two counts
of second degree kidnapping, sexual assault, and robbery.
The court sentenced him to an indeterminate term of fiftyfour years to life in the Department of Corrections.
Ashley appealed his conviction and sentence on
various grounds. He did not, however, appeal the trial
court’s decision denying his request for substitute counsel.
A division of this court vacated one of the kidnapping
convictions and the associated sentence, but affirmed the
judgment in all other respects. People v. Ashley, (Colo.
App. No. 03CA1222, Mar. 9, 2006) (not published pursuant
to C.A.R. 35(f)).
In June 2007, Ashley filed a timely Crim. P. 35(c)
motion seeking postconviction relief, based on various
allegations of ineffective assistance of counsel. In July
2009, Ashley’s appointed postconviction counsel filed a
supplemental Crim. P. 35(c) motion. As pertinent here,
Ashley argued in the supplement that his trial counsel had
violated his constitutional rights by forcing him “to choose
between counsel or an innocence based defense.”
The postconviction court held an evidentiary hearing
in December 2010. Ashley testified that he had met only
twice in private with Callum, and that Callum had never told
him what theory of defense he would be pursuing at trial. He
9

asserted that during approximately ten court appearances,
Callum never spoke to him. Ashley also testified that he had
told Callum that he was innocent, that he had not been at the
scene of the crime, that it was “impossible” that his DNA was
found at the scene, and that his “recollection” was that at the
time of the crime he was at home with his wife. He also
testified that his trial counsel had never notified him that the
prosecution had made a plea bargain offer. Finally, Ashley
asserted that he had wanted to testify at trial that he was
innocent.
Ashley’s wife also testified at the hearing. She
testified that, while she could not remember precisely the
night of the crime, she “would have noticed if [Ashley was]
gone that night,” and that she did not “recall him ever being
gone during the night during that month.” She stated that
Ashley was “pretty much” home twenty-four hours a day at
the time of the crime due to a back injury. Finally, she
explained that, while she had not provided a statement to the
police regarding Ashley’s alibi, she had tried to talk to Callum
about it “on several occasions,” but was rebuffed. Neither
Ashley nor the prosecution called Callum or McGovern to
testify at the hearing.
After the close of evidence, postconviction counsel
argued that Callum “effectively pled [Ashley] guilty to a
lesser offense against his will by making a judicial admission
in his opening and closing argument.” The following colloquy
then occurred:
The Court: But let’s forget – the opening
statement left doors open. Based on the
evidence that was presented by the People,
what other credible [closing] argument could –
with the defendant choosing not to testify,
could the defense have made?
[Defense counsel]: I don’t think they could
have made another credible argument. And I
concede that, Your Honor. But the fact of the
matter is that . . . the defense lawyer chose not
to proceed with any other theory, chose not to
investigate the case, and chose basically to
stipulate to the DNA evidence without
[Ashley’s] permission.
10

The Court: But on a 35(c) hearing, typically if
you want to say that the lawyer is ineffective by
failing to investigate, you present the
investigation that should have been done. . . .
[T]he only evidence that’s been presented is
basically the defendant’s own statement, which
was available and he chose not to present in
the original trial.
[Defense counsel]: Correct. And also his
wife’s statement that he was home. And – and
that’s all . . . at this time.
After hearing argument from both parties, the
postconviction court then made a comprehensive oral ruling,
denying Ashley’s motion and making detailed findings of fact
and conclusions of law.
After reciting the facts and procedural history of the
case, the court began its analysis by making the following
credibility determinations.
First, the Court finds the defendant’s testimony
to be not particularly credible on most issues. .
. . [M]uch of it contradicts what is in the
transcript. For example, his statements that he
was never told about an offer . . . his
statements regarding the lawyers not
discussing whether or not he . . . [would] testify
at trial, when he told Judge Mullins that they
advised him it would not be good. . . .
Ms. Ashley’s testimony, similarly, was not
particularly strong or credible.
The postconviction court also found, as pertinent
here, that Callum’s opening statement had not precluded
Ashley from testifying as to his innocence, nor did it infringe
on Ashley’s right to enter a plea; and that Callum’s closing
argument was a proper strategic choice that presented “the
only argument that would have been professionally
reasonable.” With respect to Ashley’s contentions that trial
counsel had failed to adequately investigate an alibi defense
or possible challenges to the DNA evidence, the
postconviction court found that (1) neither Ashley nor his
11

wife’s testimony would have been “particularly credible in
light of the overwhelming evidence presented at trial,
including the DNA and the statistical values given to that
DNA,” and (2) Ashley had failed to establish any prejudice in
counsel’s failure to dispute the overwhelming DNA evidence.
With respect to Ashley’s assertion that counsel had a conflict
of interest, the postconviction court found that the trial court
properly determined there was no such conflict.
People v. Ashley, No. 10CA2460, slip op. at 1-15 (Colo. App. 2013) ([#13-11] at 2-16).
Mr. Ashley asserts three claims for relief in the Application. He contends in claim
1 that he was denied the effective assistance of counsel because: (a) there was a
complete breakdown in communication with counsel; (b) counsel admitted Mr. Ashley
was guilty during opening his statement and closing argument; and (c) counsel failed to
investigate more thoroughly and challenge the DNA evidence. Mr. Ashley contends in
claim 2 that he was denied due process because the victim’s out-of-court identification
of him was based on an impermissibly suggestive photo array. Mr. Ashley contends in
claim 3 that his sentence was aggravated based on facts not found by the jury in
violation of his right to a trial by jury under Apprendi v. New Jersey, 530 U.S. 466
(2000).
II. STANDARDS OF REVIEW
I must construe the Application and other papers filed by Mr. Ashley liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
12

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). Mr. Ashley 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
Mr. Ashley seeks to apply a rule of law that was clearly established by the Supreme
Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). Clearly established federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
13

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.
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. Furthermore,
[E]valuating whether a rule application was unreasonable
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requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal quotation marks and citation
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.
In addition, “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

15

2254(d)(2) allows the 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 Mr. Ashley 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)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see
also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious effect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.”
Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)).
“Grave doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual

16

equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435. The Court
make this harmless error determination based upon a review of the entire state court
record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
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
Cir. 2004).
III. MERITS OF APPLICANT’S CLAIMS
A. Claim 1
The Court first will address the ineffective assistance of counsel claims. It was
clearly established when Mr. Ashley was convicted that a defendant has a Sixth
Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed
questions of law and fact. See id. at 698.
To establish that counsel was ineffective under Strickland Mr. Ashley must
demonstrate both that counsel’s performance fell below an objective standard of
reasonableness and that counsel’s deficient performance resulted in prejudice to his
defense. See id. at 687. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. There is “a strong presumption” that counsel’s performance
falls within the range of “reasonable professional assistance.” Id. It is Mr. Ashley’s
burden to overcome this presumption by showing that the alleged errors were not sound
strategy under the circumstances. See id. “For counsel’s performance to be

17

constitutionally ineffective, it must have been completely unreasonable, not merely
wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999). Furthermore, “because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009).
Under the prejudice prong Mr. Ashley must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 131 S. Ct. at
792 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable.”). In determining whether Mr. Ashley has established prejudice, the Court
must look at the totality of the evidence and not just the evidence that is helpful to Mr.
Ashley. See Boyd, 179 F.3d at 914.
Finally, conclusory allegations that counsel was ineffective are not sufficient to
warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir.
2001). If Mr. Ashley fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697.
1. Complete Breakdown in Communication
Mr. Ashley contends in claim 1(a) that he was denied the effective assistance of
counsel because there was a complete breakdown in communication with counsel. The
Colorado Court of Appeals applied the two-part Strickland test and reasoned as follows
in rejecting this claim:

18

Ashley contends that there was a “complete
breakdown in communication” between him and his trial
counsel, resulting in a conflict of interest and in counsel’s
pursuing an improper defense strategy without discussing it
with Ashley and contrary to his wishes. Specifically, at the
postconviction hearing, Ashley claimed that he was not
aware of the defense theory of he case until the opening
statement at trial, and would not have consented to it, had
he known. The record refutes Ashley’s contentions.
Substitution of counsel may be warranted when there
is a total breakdown in communication between counsel and
the defendant. People v. Kelling, 151 P.3d 650, 656 (Colo.
App. 2006). However, good communication does not
guarantee effective assistance of counsel, and bad, or even,
no communication does not necessarily equate to ineffective
assistance of counsel. Id. at 655 (citing United States v.
Lott, 310 F.3d 1231, 1252-53 (10th Cir. 2002)). Further, the
right to counsel guarantees only competent representation
and does not necessarily include a meaningful attorneyclient relationship. People v. Arguello, 771 P.2d 87, 91
(Colo. 1989); People v. Hodges, 134 P.3d 419, 425 (Colo.
App. 2005), aff’d, 158 P.3d 922 (Colo. 2007).
If a trial court has a reasonable basis for believing that
the lawyer-client relationship has not deteriorated to the
point where counsel is unable to give effective assistance in
the fair presentation of a defense, it is justified in refusing to
appoint new counsel. Schulteis, 638 P.2d at 15.
Further, a reversal of a conviction is not required
where a defendant has placed on the record his or her
reasons for dissatisfaction with counsel, those reasons
would not qualify as good cause for substitution of counsel,
and the defendant has not identified other reasons for
dissatisfaction that would have been elicited through further
inquiry by the trial court. Kelling, 151 P.3d at 654.
The postconviction court found that Ashley’s
testimony regarding his allegations of a breakdown in
communication was not credible and was contradicted by the
record. It also found that the trial court had consistently and
correctly determined that there was no conflict of interest.
We must defer to the postconviction court’s credibility
determinations, Dunlap, 173 P.3d at 1062, and we also
19

conclude that the record supports its factual findings that
there was not a complete breakdown in communication here.
See Hodges, 134 P.3d at 425-26.
The record shows that any early lack of
communication between Ashley and counsel was justified
because Callum had not yet received the DNA evidence and,
therefore, could not definitively form a theory of the case to
discuss with Ashley until he had access to and was able to
evaluate that evidence. The record shows that when it was
available, counsel then delivered the discovery to Ashley for
his review as well.
The record also shows that McGovern met with
Ashley the week before trial regarding a plea offer from the
prosecution. At the pretrial conference the day before trial,
Ashley confirmed this meeting, stating that he walked out
because McGovern said she was not concerned about his
personal problems. To the extent Ashley testified at the
postconviction hearing that McGovern never presented a
plea offer to him and had herself walked out on the meeting
without discussion, we defer to the postconviction court’s
determination that this testimony was not credible and was
refuted by the record.
Moreover, contrary to Ashley’s contention, the record
also indicates that he was aware of trial counsel’s defense
strategy at the pretrial conference. At that conference, he
specifically stated that his problem with his counsel was not
“how they prepared his case,” thereby implying that he was
aware of counsel’s defense strategy; his only complaint was
that his counsel did not like him. The next day, prior to voir
dire, he implied again that he was aware of the defense
strategy but made no specific complaint about it and simply
asked one more time for the court to dismiss his counsel for
the same reasons he stated the day before (his counsel did
not “like” him). That Ashley may not have been happy with
the defense strategy or did not agree with it does not
demonstrate a complete breakdown in communication with
his counsel, because any such disagreements pertained to
matters of strategy and tactics that did not provide good
cause for substitution of counsel. See Kelling, 151 P.3d at
653; Hodges, 134 P.3d at 425.
While Ashley asserts that counsel came to see him at
20

the jail only twice, he also testified that he had approximately
ten court appearances with counsel. Although Ashley
claimed at the postconviction hearing that he never spoke to
counsel during those ten appearances, we again defer to the
postconviction court’s finding that his testimony was “not
particularly credible on most issues.” See Dunlap, 173 P.3d
at 1062.
In sum, we discern no error in the postconviction
court’s denial of Ashley’s Crim. P. 35(c) motion on the
ground that there was no complete breakdown in
communication with his trial counsel constituting ineffective
assistance of counsel.
([#13-11] at 23-28 (footnote omitted).)
Mr. Ashley does not cite any contradictory governing law set forth in Supreme
Court cases or any materially indistinguishable Supreme Court decision that would
compel a different result with respect to claim 1(a). Therefore, he fails to demonstrate
the decision of the Colorado Court of Appeals rejecting claim 1(a) was contrary to
clearly established law. See House, 527 F.3d at 1018. To the extent Mr. Ashley now
contends he actually is challenging the trial court’s failure to appoint substitute counsel
in addition to trial counsel’s effectiveness, the Court notes that such a claim is
procedurally barred. See Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998)
(federal courts “do not review issues that have been defaulted in state court on an
independent and adequate state procedural ground, unless the default is excused
through a showing of cause and actual prejudice or a fundamental miscarriage of
justice.”). The Colorado Court of Appeals specifically determined that state law
prohibited Mr. Ashley from challenging the trial court’s denials of his requests for
substitute counsel in the postconviction proceedings because such a claim could have
been, but was not, raised on direct appeal. (See [#13-11] at 23.) Mr. Ashley fails to
21

excuse his procedural default by showing either cause and prejudice or a fundamental
miscarriage of justice. Therefore, the Court will not consider the merits of any claim
challenging the trial court’s failure to appoint substitute counsel.
Mr. Ashley also fails to demonstrate that the decision of the Colorado Court of
Appeals rejecting claim 1(a) was an unreasonable application of clearly established
federal law. Mr. Ashley does challenge certain factual findings made by the state court,
including the findings regarding when counsel received the DNA evidence and whether
he was aware prior to trial of the defense strategy counsel intended to pursue. Mr.
Ashley also challenges the state court’s finding regarding his credibility, a finding that is
like a finding of fact. See Morris v. Ulibarri, 513 F. App’x 777, 778 (10th Cir. 2013).
The Court presumes the state court’s factual findings and credibility determination are
correct and Mr. Ashley bears the burden of rebutting the presumption by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1). He has not met this burden because
his conclusory allegations to the contrary are not clear and convincing evidence.
In light of the state court’s factual determinations, and, in particular, the
determination that Mr. Ashley’s factual allegations and testimony were not credible, the
state court’s legal conclusion that Mr. Ashley’s right to effective assistance of counsel
was not violated as a result of a complete breakdown in communication with counsel is
not unreasonable. Mr. Ashley is not entitled to habeas relief with respect to claim 1(a)
because he fails to demonstrate that the state court’s ruling 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.
2. Admission of Guilt
22

Mr. Ashley contends in claim 1(b) that he was denied the effective assistance of
counsel because counsel admitted he was guilty during his opening statement and
closing argument. More specifically, Mr. Ashley contends that counsel’s statements
were the functional equivalent of a forced guilty plea. The Colorado Court of Appeals
applied the two-part Strickland test and reasoned as follows in rejecting this claim:
Ashley contends that his trial counsel effectively
admitted his guilt during opening statement and closing
argument, thereby depriving him of his constitutional rights to
plead not guilty and to testify as to his complete innocence of
all charges. We are not persuaded.
During his opening statement, Callum put Ashley at
the scene of the crime, acknowledging that Ashley’s semen
was on the victim’s underwear. He stated that Ashley “may”
have attempted a sexual assault, but that the evidence
would show that he did not commit sexual assault.
At the postconviction hearing, the court rejected
Ashley’s argument that these statements were “tantamount
to defense [counsel] entering a plea of guilty on the
defen[dant]’s behalf but without his permission”:
The Court finds, based on the sections it read
of the opening statement, that the opening
statement . . . was much more benign than the
opening statement that was the subject of
review in the Bergerud case.
There’s nothing in that opening statement that
committed the – the defense to a particular
position. It didn’t - - for example, in Bergerud
where the defense counsel questioned the
defendant’s ability to even provide testimony, it
had nothing of that sort.
It really challenged primarily whether or not a
sexual assault had occurred. So that the Court
finds that it left open to the defendant his right
to assert his own . . . other defenses or provide
testimony that would not be discounted during
23

the defense case.
Further, the Court finds that the defendant
chose not to testify, not because of the way
that the case had been proceeding . . . .
The defendant did not testify, and it’s clear
from his statements today and from the record,
because he had a prior conviction for sexual
assault and . . . understood how devastating
that would be in impeaching his credibility.
With respect to the closing argument, the trial
transcript reflects that counsel conceded that Ashley had
deposited semen in the victim’s underwear and on the
pavement at the scene of the crime. However, he vigorously
argued that the evidence showed that Ashley had not
committed either sexual assault or burglary. Counsel argued
that, at most, Ashley had committed only the lesser included
offense of attempted sexual assault and second degree
kidnapping (without a sexual assault).
The postconviction court found that the statements in
counsel’s closing argument constituted the “only argument
that would have been professionally reasonable” based on
“the record before the jury . . . the testimony before the jury .
. . the evidence and without the defendant’s testifying and
providing another defense.”
The postconviction court expressly found that
counsel’s decision to argue a lesser included offense was a
tactical and strategic decision that was not violative of the
two-pronged Strickland test. See Arko, 183 P.3d at 558
(decision whether to request lesser included defense
instruction is a tactical decision made by counsel).
We conclude that the postconviction court’s findings
and conclusions regarding both the opening statement and
closing argument are supported by the record, and that
counsel’s actions did not constitute ineffective assistance,
nor did they prejudice Ashley pursuant to the second prong
of the Strickland test.
We note that the supreme court has set a high bar for
what constitutes an effective admission of guilt by counsel.
24

To violate a defendant’s trial rights, the disputed statements
must constitute a judicial admission, defined as “a formal,
deliberate declaration which a party or his attorney makes in
a judicial proceeding for the purpose of dispensing with proof
of formal matters or of facts about which there is no real
dispute.” Bergerud, 223 P.3d at 700 (quoting People v.
Bertagnolli, 861 P.2d 717, 720 (Colo. 1993)). An actual
plea of guilty “is more than a confession which admits that
the accused did various acts; it is itself a conviction; nothing
remains but to give judgment and determine punishment.”
Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo.
2011) (quoting Boykin v. Alabama, 395 U.S. 238, 242
(1969)); see also Arko, 183 P.3d at 558 (distinguishing
between a decision to plead guilty and a decision whether to
request a lesser offense instruction). Given that the jury
instructions at trial still held the prosecution to its required
burden of proof on all charges, we question whether either
the opening statement or the closing argument constituted
an effective guilty plea.
In any event, a review of the entire record reflects in
five ways that counsel’s performance and strategy was
reasonable and that Ashley cannot demonstrate prejudice
from counsel’s concessions during either opening statement
or closing argument.
First, we note that the postconviction court found that
Ashley’s testimony at the postconviction hearing was not
credible. Accordingly, to the extent Ashley testified that he
disagreed with counsel’s trial strategy, and told them so, we
must defer to the court’s credibility determinations. And, of
course, as discussed above, all of Ashley’s complaints about
his counsel (both before and during trial) had to do with a
lack of communication. As noted, the record reflects that the
first time Ashley expressly articulated any disagreement with
counsel’s strategy was when he interrupted the
prosecution’s rebuttal closing, which, in our view, was, at
best, self-serving and came way too late in the proceedings.
This fact, alone, distinguishes this case from Bergerud,
where the record was clear and undisputed that the
defendant openly and expressly disagreed with defense
counsel’s strategy and consistently voiced his preference for
a different defense theory.
Second, the opening statement did not otherwise
25

preclude Ashley from testifying as to his innocence. Rather,
although counsel made concessions regarding Ashley’s
being at the scene of the crime, he nevertheless left the door
open for Ashley to testify and provide an alternative
explanation as to what occurred or to testify that he had an
alibi or other excuse. However, the record clearly supports
the postconviction court’s finding that Ashley chose not to
testify because he did not want his past felony convictions
presented to the jury – not because he felt that the opening
statement had rendered his decision to testify a nullity.
Furthermore, the closing argument as well could not have
impinged Ashley’s right to testify because Ashley had
already decided not to testify for wholly unrelated reasons.
Third, counsel was aware that there was
overwhelming evidence placing Ashley at the scene of the
crime and showing that he had ejaculated on the victim’s
underwear, including (1) there were astronomical odds
against there being any mistake that Ashley’s DNA was at
the scene of the crime; (2) the victim had made a positive
identification of Ashley in the photographic lineup; and (3)
Ashley had not provided any alternative explanation for the
adverse evidence admitted against him at trial. Further,
counsel was faced with a situation where Ashley would be
subject to an indeterminate sentence to life if convicted of
sexual assault, whereas an attempt conviction would protect
him from such a sentence.
Given these circumstances, we conclude it could not
have been ineffective assistance for Ashley’s counsel to
concede that Ashley was present at the scene of the crime,
that he had some sort of contact with the victim short of a
completed sexual assault, that he caused her underwear to
be removed, that he ejaculated on her underwear, and that
he moved her to a location behind the store where his DNA
was found on the pavement.
Fourth, the record also supports the postconviction
court’s finding that, based on the evidence admitted at trial,
Callum reasonably argued for a conviction on a lesser
offense of attempted sexual assault at closing, thereby
fulfilling his truth-seeking obligation to the court. See
Bergerud, 223 P.3d at 694 (“‘decisions of trial strategy’
available to defense attorneys are . . . bound on the one side
by fundamental choices given directly to the defendant . . .
26

and on the other by the requirements of honesty and
integrity imposed on officers of the court”); see also Davis,
871 P.2d at 777-78 (“In view of the limited options available
to [defense counsel] . . . we are convinced that [counsel’s]
summation was the product of sound trial strategy.
Accordingly, [counsel’s] representation at this stage of the
proceedings fell within the range of professionally competent
assistance required by Strickland.”).
Again, given the overwhelming evidence by [sic]
Ashley’s guilt, we perceive no basis for concluding that his
counsel provided ineffective assistance by arguing in closing
argument for conviction on lesser crimes, particularly where
the record shows that Ashley had not insisted on a total
innocence defense. See Arko, 183 P.3d at 558; Dunlap,
173 P.3d at 1079-80 (defense counsel’s strategy to maintain
credibility with the jury by admitting during closing argument
the horror of the charged crime and the defendant’s
responsibility was a perfectly reasonable tactical choice); cf.
Bergerud, 223 P.3d at 692.
Fifth, because there was such overwhelming evidence
of Ashley’s guilt, we further conclude that Ashley did not
(and cannot) demonstrate prejudice under the second prong
of Strickland, because there was no reasonable probability
of a different outcome at trial even without the concessions
made by defense counsel during opening statement and
closing argument. See Dunlap, 173 P.3d at 1068-69; see
Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only
weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record
support.”).
In sum, we conclude the postconviction court did not
err in ruling that trial counsel did not provide ineffective
assistance of counsel that prejudiced Ashley by pursuing the
challenged defense strategy in opening statement or closing
argument, and did not, in pursuing such strategy, improperly
impinge on Ashley’s constitutional rights to enter a plea and
testify in his defense.
([#13-11] at 28-37 (footnotes omitted).)
Mr. Ashley fails to demonstrate the state court’s rejection of claim 1(b) was
27

contrary to clearly established law because he again fails to cite any contradictory
governing law set forth in Supreme Court cases or any materially indistinguishable
Supreme Court decision that would compel a different result with respect to claim 1(b).
See House, 527 F.3d at 1018. Mr. Ashley does contend that counsel’s statements
admitting his guilt to lesser crimes demonstrate counsel abandoned him and failed to
subject the prosecution’s case to meaningful adversarial testing. A limited exception to
Strickland’s two-part test applies in situations that “are so likely to prejudice the
accused that the cost of litigating their effect in the particular case is unjustified.”
United States v. Cronic, 466 U.S. 648, 658 (1984). One situation in which prejudice
under Strickland will be presumed is when “‘counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.’” Bell v. Cone, 535 U.S. 685, 696
(2002) (quoting Cronic, 466 U.S. at 659). However, an attorney’s strategic decision to
concede certain points or even guilt of a lesser offense is the not the equivalent of a
complete failure to subject the prosecution’s case to meaningful testing. See Haynes v.
Cain, 298 F.3d 375, 381 (5th Cir. 2002) (concluding “strategic or tactical decisions are
evaluated under Strickland’s traditional two-pronged test” because “Cronic is reserved
only for those extreme cases in which counsel fails to present any defense”). Thus, the
state court’s decision is not contrary to clearly established federal law.
Mr. Ashley also fails to demonstrate that the state court’s rejection of claim 1(b)
was an unreasonable application of clearly established federal law. The Court has little
to add to the state court’s thorough analysis set forth above. In short, the Court agrees
the evidence against Mr. Ashley was overwhelming and, in light of such overwhelming

28

evidence, counsel’s strategic decision to concede guilt to lesser offenses was not
deficient performance and did not prejudice Mr. Ashley. See, e.g., Haynes, 298 F.3d at
382-83 (petitioner could not establish prejudice under Strickland stemming from
counsel’s strategic concession, against petitioner’s wishes, of facts amounting to
second degree murder because evidence of guilt was overwhelming). In any event, the
state court’s rejection of claim 1(b) certainly 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. 786-87. As a result, Mr. Ashley is not
entitled to relief on claim 1(b).
3. Failure to Investigate and Challenge DNA Evidence
Mr. Ashley contends in claim 1(c) that he was denied the effective assistance of
counsel because counsel failed to investigate more thoroughly and challenge the DNA
evidence. The Colorado Court of Appeals applied the two-part Strickland test and
reasoned as follows in rejecting this claim:
With respect to Ashley’s contention that his trial
counsel did not make adequate pretrial investigations to
challenge the DNA evidence, the postconviction court found
that, “even if the defense should have gone that course, no
prejudice has been established,” given that “there’s no
evidence that’s been presented to the court today to say that
this DNA was not the defendant’s . . . or there’s been no
expert presented to say that this was an unreliable test and
unreliable evidence.”
We perceive no error in the postconviction court’s
findings. Furthermore, the record shows that Callum did
investigate the DNA evidence, engaging an expert to assist
him in reviewing the evidence. He also filed a motion to
suppress the DNA evidence, specifically challenging the
reliability of the DNA testing. Because this challenge was
29

unsuccessful, we conclude that Callum made a
professionally reasonable strategic decision not to challenge
the DNA evidence at trial, given its accepted scientific
accuracy, and given that he and McGovern did not want to
open the door to any evidence that Ashley’s DNA was in the
CODIS system.
([#13-11] at 39-40.)
Mr. Ashley fails to demonstrate the state court’s rejection of claim 1(c) was
contrary to clearly established law because he again fails to cite any contradictory
governing law set forth by the Supreme Court or any materially indistinguishable
Supreme Court decision that would compel a different result with respect to claim 1(c).
See House, 527 F.3d at 1018.
Mr. Ashley also fails to demonstrate that the state court’s rejection of claim 1(c)
was an unreasonable application of clearly established federal law. Mr. Ashley
contends only that the victim’s failure to identify him at his preliminary hearing should
have prompted counsel to further investigate the DNA evidence, an argument that
addresses the first prong of the Strickland analysis. However, this contention is belied
by the state court’s factual determination that counsel did, in fact, investigate the DNA
evidence, a factual determination the Court presumes to be correct under § 2254(e)(1).
Mr. Ashley also fails to demonstrate the state court’s determination that counsel made a
strategic decision not to challenge the DNA evidence at trial is an unreasonable
application of the deficient performance prong of the Strickland analysis. See
Strickland, 466 U.S. at 690 (counsel’s “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.”). Finally, Mr. Ashley does not even address the fact that the state
30

court also rejected claim 1(c) due to his failure to demonstrate prejudice under
Strickland, which was based on the failure to present any evidence that would have
resulted from additional investigation of the DNA evidence. In the absence of any
evidence of prejudice, Mr. Ashley cannot demonstrate the state court’s rejection of claim
1(c) 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. As a result, Mr. Ashley is not entitled to relief on claim 1(c).
B. Claim 2
Mr. Ashley contends in claim 2 that he was denied due process because the
victim’s out-of-court identification of him was based on an impermissibly suggestive
photo array. In this context, “due process concerns arise only when law enforcement
officers use an identification procedure that is both suggestive and unnecessary.” Perry
v. New Hampshire, 132 S. Ct. 716, 724 (2012) (summarizing relevant standards clearly
established in prior Supreme Court decisions). Furthermore, even if law enforcement
officers use a suggestive and unnecessary identification procedure, the resulting
identification need not be suppressed unless, based on the totality of the circumstances,
“improper police conduct created a substantial likelihood of misidentification.” Id. at
724-25 (internal quotation marks omitted).
The Colorado Court of Appeals address the merits of claim 2 on direct appeal
and reasoned as follows in rejecting the claim:
Defendant first asserts that the trial court erred in
admitting the victim’s pretrial identification because it was
based on an impermissibly suggestive photo array. We
disagree.
31

In reviewing a trial court’s ruling on the
constitutionality of pretrial identification, we defer to the trial
court’s findings of fact, but may afford different weight to
those facts and reach a different legal conclusion in light of
the legal standard. People v. Borghesi, 66 P.3d 93 (Colo.
2003); Bernal v. People, 44 P.3d 184 (Colo. 2002).
A pretrial identification procedure violates a
defendant’s due process rights if it is so impermissibly
suggestive as to give rise to a substantial likelihood of
irreparable misidentification. People v. Monroe, 925 P.2d
767 (Colo. 1996); People v. Wilford, 111 P.3d 512 (Colo.
App. 2004) (cert. granted May 16, 2005).
The defendant has the burden of demonstrating that
the photo array is impermissibly suggestive. If the defendant
fails to meet this burden, no further inquiry is necessary. If
the defendant meets this burden, the prosecution must then
show that the identification was nevertheless reliable under
the totality of the circumstances. Simmons v. United
States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed.2d 1247
(1968); Bernal v. People, supra.
To determine whether the photo array is
impermissibly suggestive we consider the size of the array,
the manner in which it was presented, and the details of the
photographs themselves. United States v. Wiseman, 172
F.3d 1196 (10th Cir. 1999); United States v. Sanchez, 24
F.3d 1259 (10th Cir. 1994); People v. Borghesi, supra.
A photo array with as few as six photos is not a per se
due process violation, but the fewer the photos, the closer
the array must be scrutinized for impermissibly suggestive
irregularities. United States v. Sanchez, supra; People v.
Borghesi, supra.
When the number of photos is not so small as to
make the presentation itself unfairly suggestive, and there is
nothing in the manner of presentation that renders the
procedure surrounding the identification suggestive, the
inquiry is whether the array was so limited that the defendant
was the only one to match the victim’s description of the
perpetrator. Bernal v. People, supra. However, police do
not have to provide an array containing only carbon copies
32

of the defendant’s picture; all that is required is that “the
photos are matched by race, approximate age, facial hair,
and a number of other characteristics.” People v. Webster,
987 P.2d 836, 839 (Colo. App. 1998) (quoting People v.
Borrego, 668 P.2d 21, 23 (Colo. App. 1983).
Defendant contends the photo array was
impermissibly suggestive because police told the victim that
there had been a DNA match, the victim was “excited” to
come to the police station to make the identification, the
array had only the minimum of six photos, and his was the
only one with a yellowish hue. We do not agree.
Here, because the array contained six photos, its size
is not alone problematic. The record reveals nothing
suggestive about the manner of presentation of the array,
either. The detective who administered the presentation did
not encourage the victim to make an identification and did
not say anything to otherwise influence her decision.
The fact that the victim knew there had been a DNA
match and was eager to view the photo array does not alter
our conclusion. See People v. Walford, 716 P.2d 137
(Colo. App. 1985) (an otherwise properly conducted lineup is
not constitutionally infirm where a witness knows only that a
suspect has been arrested and has been included in the
lineup). In any event, the detective gave the victim an
admonition to address any heightened expectation she may
have had that the perpetrator was included in the photo
array:
This group may or may not contain a picture of
the person who committed the crime now being
investigated. The fact that the photos are
being shown to you should not cause you to
believe that the guilty person has been caught.
You do not have to identify anyone. It is just as
important to free innocent persons from
suspicion as it is to identify those who are
guilty.
Regarding the details of the photographs themselves,
an array that includes a photo that is unique in a manner
directly related to an important identification factor may be
impermissibly suggestive. See Bernal v. People, supra
33

(concluding that photo array was impermissibly suggestive
where witnesses described the perpetrator as Hispanic, and
the defendant’s photograph was the only one showing a man
with stereotypically Hispanic features). However, differences
in shade and tone do not render an otherwise proper photo
array impermissibly suggestive. People v. Borghesi,
supra.
....
Here, the victim described the suspect as an AfricanAmerican man, approximately 200 pounds, with a round
face, double chin, and medium to dark complexion. All the
photos in the array appear to fit this description. None of
these features were uniquely highlighted by defendant’s
photo, and the photos were matched by race, approximate
age, facial hair, hair length, and complexion. In addition, the
detective gave another admonition addressing the factor
defendant contends rendered the array impermissibly
suggestive: “Pay no attention to whether the photos are in
color or black and white or any other difference in the type or
style of the photographs. You should study only the person
shown in the photographs.”
We therefore conclude the array was not
impermissibly suggestive and the trial court did not err in
admitting the out-of-court identification.
([#13-5] at 3-8.)
Mr. Ashley does not cite any contradictory governing law set forth by the
Supreme Court or any materially indistinguishable Supreme Court decision that would
compel a different result with respect to claim 2. Therefore, he fails to demonstrate the
state court’s decision with respect to claim 2 was contrary to clearly established law.
See House, 527 F.3d at 1018.
Mr. Ashley also fails to demonstrate the state court’s rejection of claim 2 was an
unreasonable application of clearly established federal law. Mr. Ashley does assert that
the victim was told the suspect’s picture was in the photo array. However, pursuant to §
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2254(e)(1), the Court presumes that the state court’s factual determinations are correct
and Mr. Ashley bears the burden of rebutting the presumption by clear and convincing
evidence. He has not met this burden. The state court record confirms, as the
Colorado Court of Appeals found, that although the victim was aware of a DNA match in
her case, she was not told the suspect’s picture was in the photo array she was shown.
The Court also presumes the state court’s other factual determinations regarding the
photo array are correct. In light of these presumptively correct factual determinations,
the Court cannot conclude that the state court’s ruling 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. As a result, Mr.
Ashley is not entitled to relief with respect to claim 2.
C. Claim 3
Mr. Ashley contends in claim 3 that his sentence was aggravated based on facts
not found by the jury in violation of his right to a trial by jury under Apprendi v. New
Jersey, 530 U.S. 466 (2000). The Supreme Court held in Apprendi that, “[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490. The Supreme Court subsequently
clarified “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence
a judge may impose solely on the basis of the facts reflected in the jury verdict or
admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303 (2004).
The Colorado Court of Appeals on direct appeal determined that Mr. Ashley’s

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Apprendi claim lacked merit.
Here, the trial court imposed an aggravated range
sentence because defendant had five prior felony
convictions and admitted at sentencing that he was on
parole for a felony at the time he committed the instant
offense. Either of these factors justifies the trial court’s
imposition of an aggravated range sentence. See Lopez v.
People, supra (affirming aggravated range sentence based
on defendant’s prior convictions); People v. Scott, __ P.3d
__ (Colo. App. No. 04CA2207, Nov. 3, 2005) (affirming
aggravated range sentence based on defendant’s admission
that he was on parole for a felony at the time he committed
the instant offense).
The record belies defendant’s contention that the trial
court also relied on impermissible factors in imposing an
aggravated range sentence. But even if it had, defendant’s
sentence would stand nevertheless. See Lopez v. People,
supra (an aggravated range sentence is constitutional if the
trial court relied on any permissible factor, even if it also
considered impermissible ones).
([#13-5] at 17-18.)
Mr. Ashley does not cite any contradictory governing law set forth by the
Supreme Court or any materially indistinguishable Supreme Court decision that would
compel a different result with respect to claim 3. Therefore, he fails to demonstrate the
state court’s decision with respect to claim 3 was contrary to clearly established law.
See House, 527 F.3d at 1018.
Mr. Ashley also fails to demonstrate the state court’s rejection of claim 3 was an
unreasonable application of clearly established federal law. Pursuant to § 2254(e)(1),
the Court presumes that the state court’s factual determinations are correct and Mr.
Ashley bears the burden of rebutting the presumption by clear and convincing evidence.
He has not met this burden. The state court record confirms, as the Colorado Court of
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Appeals found, that Mr. Ashley’s sentence was aggravated based on his prior felony
convictions and his own admission that he was on parole at the time he committed the
relevant crimes. In light of these facts and admissions, the state court’s legal
conclusion that no Apprendi violation occurred is not an unreasonable application of
clearly established federal law. See United States v. Booker, 543 U.S. 220, 244
(2005) (reaffirming the holding in Apprendi that “[a]ny fact (other than a prior
conviction) which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be admitted
by the defendant or proved to a jury beyond a reasonable doubt.”) (emphasis added).
Mr. Ashley’s conclusory assertion that the trial court improperly relied on other facts in
his presentence report does not alter this conclusion or demonstrate the state court’s
ruling 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. As a result, Mr. Ashley is not entitled to relief with respect
to claim 3.
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. Ashley 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
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for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Mr. Ashley files a notice of appeal, he also must pay the full appellate filing fee or file a
motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth
Circuit within thirty days in accordance with Fed. R. App. P. 24.
IV. ORDERS
THEREFORE, IT IS ORDERED as follows:
1. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 [#4] filed by Applicant Mark R. Ashley is DENIED;
2. That this case is DISMISSED WITH PREJUDICE;
3. That there is no basis on which to issue a certificate of appealability 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 at Denver, Colorado, November 25, 2014.
BY THE COURT:

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