Boetger v. Burnell et al

Filing 40

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS by Judge Philip A. Brimmer on 6/16/15. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Docket No. 1], filed by Michael A. Boetger on March 4, 2014, is denied a nd this action is dismissed with prejudice. It is further ORDERED that no certificate of appealability shall issue because Applicant hasnot made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Fed. R. Gover ning Section 2254 Cases 11(a); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000). It is further ORDERED that leave to proceed in forma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this or der would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). IfApplicant files a notice of appeal he must also pay the full $505.00 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. (kpreu)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-00675-PAB
MICHAEL A. BOETGER,
Applicant,
v.
ACTING WARDEN BURNELL, Buena Vista Correctional Facility, and
JOHN SUTHERS, the Attorney General of the State of Colorado,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant Michael A. Boetger has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction
in the District Court of Teller County, Colorado. Respondents have filed an Answer
[Docket No. 35], and Applicant has filed a Reply [Docket No. 38]. Having considered
the same, along with the state court record, the Court will deny the Application.
I. BACKGROUND
Applicant’s September 2007 trial resulted in a hung jury in Teller County District
Court Case No. 06CR185. Docket No. 10-2 at 8. In Decem ber 2007, Applicant
pleaded guilty to the charge of sexual assault on a child by one in a position of trust. Id.
at 8-9. Before sentencing, Applicant filed, pro se, two letters requesting that he be
allowed to withdraw his guilty plea pursuant to Colo. Crim. P. Rule (“Crim. P.”) 32(d).
Id. at 11-12. The state district court appointed counsel who filed an amended Crim. P.
32(d) motion. Id. at 12-13. Following an evidentiary hearing, the state court denied the

motion. State Court R., 6/16/08 Hrg. Tr. The state court then sentenced Applicant to
an indeterminate prison term of eight years to life in the Colorado Department of
Corrections. Docket No. 35-3, 8/11/08 Hrg. Tr.
The Colorado Court of Appeals affirmed the state district court’s order denying
Applicant’s Crim. P. 32(d) motion. See People v. Boetger, No. 08CA2011 (Colo. App.
Aug. 26, 2010) (unpublished) (Boetger I).
In February 2012, Applicant filed, pro se, a Crim. P. 35(c) motion, seeking to set
aside his guilty plea, which the district court denied. The Colorado Court of Appeals
affirmed the district court’s order in People v. Boetger, 12CA688 (Colo. App. Dec. 26,
2013) (unpublished) (Boetger II). Docket No. 10-8. The Colorado Supreme Court
denied Applicant’s petition for certiorari review on November 3, 2014. Docket No. 22-1.
On March 4, 2014, Mr. Boetger filed his federal application under 28 U.S.C.
§ 2254 asserting 12 claims for relief. Docket No. 1. In the Pre-Answer Response,
Respondents conceded the timeliness of the Application under 28 U.S.C. § 2244(d)(1)
of the AEDPA. Docket No. 10, at 6-8. Respondents arg ued, however, that claims 2, 5,
9, 10, and 11 were not cognizable on federal habeas review. Id. at 14, 29-30.
Respondents further maintained that the remaining federal claims were procedurally
barred. Id. at 12, 15-29, 30-32.
In a February 26, 2014 Order, the Court dismissed Applicant’s claims on the
grounds asserted by Respondents, except for the following: claims 1, 3, part of claim 6
(asserting that Applicant’s plea agreement violated due process because the trial court
failed to inform him that he was essentially agreeing to a life sentence of incarceration

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with only the possibility of parole and to explain the meaning and nature of an
indeterminate sentence); part of claim 4 (asserting that Crim. P. Rule 32(d) counsel was
ineffective), and part of claim 12 (cumulative error concerning the exhausted allegations
of claims 1, 3, 4, and 6). Docket No. 34.
The Court reviews Applicant’s remaining claims below under the AEDPA
standard of review.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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, 98-99 (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 98. Thus,

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“[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 99. Even “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still m ust be met by showing there was no
reasonable basis for the state court to deny relief.” Id. at 98. 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). T herefore, 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 court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the court must answer under § 2254(d)(1) is whether the
applicant seeks to apply a rule of law that was clearly established by the Supreme
Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). Clearly established federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. Furthermore,

4

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
issue the writ simply because that court concludes in its independent judg ment that the
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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, 562 U.S. at 101 (internal quotation marks omitted). In conducting this analysis,
the court “must determine what arguments or theories supported or . . . could have
supported[ ] the state court's decision” and then “ask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding
in a prior decision of [the Supreme] Court.” Id. Moreover, “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 562 U.S. at 88 (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.
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Richter, 562 U.S. at 102.
The court reviews claims asserting factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002).
Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court
must presume that the state court's factual determinations are correct and the petitioner
bears the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]ef erence does not by
definition preclude relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting MillerEl v. Cockrell, 537 U.S. 322, 340 (2003)).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However,
a pro se litigant's “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts
that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle

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Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002).
III. ANALYSIS
A. Clearly Established Federal Law
Plaintiff’s remaining claims challenge the validity of his plea agreement and the
effectiveness of his attorneys’ representation.
Due process of law requires that a guilty plea must be knowing, voluntary and
intelligent. Boykin v. Alabama, 395 U.S. 238, 242 (1969); Brady v. United States, 397
U.S. 742, 748 (1970). To enter a plea that is knowing and voluntary, a defendant must
have “a full understanding of what the plea connotes and of its consequence.” Boykin,
395 U.S. at 244. A defendant must be “fully aware of the direct consequences” of the
plea. Brady v. Maryland, 397 U.S. 742, 755 (1970) (internal quotation marks and
citation omitted).
When a defendant enters a guilty plea on the advice of counsel, the defendant
may attack the voluntariness of the plea by showing ineffective assistance of counsel.
Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).
To prevail on a claim of ineffective assistance of counsel, an applicant must
show both that (1) his counsel’s performance was deficient (i.e., that identified acts and
omissions were outside the wide range of professionally competent assistance), and (2)
he was prejudiced by the deficient performance (i.e., that there is a reasonable
probability that but for counsel’s unprofessional errors the result would have been
different). Strickland v. Washington, 466 U.S. 668 (1984).

8

“A court considering a claim of ineffective assistance must apply a ‘strong
presumption’ that counsel’s representation was within the ‘wide range’ of reasonable
professional assistance.” Harrington v. Richter, 562 U.S. at 104 (quoting Strickland,
466 U.S. at 689). “With respect to prejudice, . . . ‘[a] reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. (quoting Strickland,
466 U.S. at 694). “The likelihood of a different result must be substantial, not just

conceivable.” Strickland, 466 U.S. at 693. A habeas petitioner who alleges that he
received ineffective assistance of counsel in connection with his entry of a guilty plea
must demonstrate that, but for counsel’s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill, 474 U.S. at 58-60.
“Surmounting Strickland’s high bar is never an easy task.” Richter, 562 U.S. at
105 (quoting Padilla, 559 U.S. at 371). “Establishing that a state court’s application of
Strickland was unreasonable under §2254(d) is all the more difficult.” Id. “When
§2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
B. Claims One and Six
In claim one, Applicant asserts that his “plea was involuntary and unknowing due
to his attorney’s false representations and assurances.” Docket No. 1 at 10. According
to Applicant, his “attorney misrepresented the consequences of the plea, he himself
was ignorant of consequences, and [counsel] assured [Applicant] that upon com pletion
of a few ‘classes’ he would be released in 6-8 years.” Id. The remaining allegation in

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claim six is that Applicant’s plea agreement violated due process because the trial court
failed to inform him that he was essentially agreeing to a life sentence of incarceration
with only the possibility of parole; explain the meaning and nature of an indeterminate
sentence; and explain that a parole violation for a sex offender could result in
reincarceration for the remainder of his natural life. Id. at 14; see also Docket No. 10-2
at 42-46.
1. State District Court Proceedings
At the providency hearing, the state district court advised Applicant of the
sentencing consequences of the plea agreement:
There’s an agreement that Mr. Boetger will be sentenced to an
indeterminate sentence at the Colorado Department of Corrections. The
minimum sentence there would be in the range of from six to eight years,
the maximum term could be the remainder of Mr. Boetger’s natural life. If
released on parole, he’ll be required to serve a minimum of 20 years of
parole, and the parole period could extend to the remainder of his natural
life.
Docket No. 35-2, Providency Hrg. Tr., at 3; see also Docket 35-1, Plea Agreement, at
15. The trial court also explained to Applicant the meaning of an indeterminate
sentence:
Under normal circumstances, upon conviction, you could be sentenced to
a term -- a minimum term of four years up to a maximum term of the
remainder of your natural life. That is the “indeterminate” term.
Id. at 12. The court further informed Applicant that, if he was released on parole, the
period of parole could extend to the remainder of his natural life. Id. at 13. Applicant
told the state district court that he had reviewed and understood the terms of the plea

10

agreement and had discussed it with his attorney. Id. at 4-5. When the court asked
Applicant if he had any questions, Applicant responded in the negative. Id. at 13.
Applicant then pleaded guilty to the charge of sexual assault on a child, a victim under
the age of 15, by one in a position of trust and provided the court with a factual basis for
the plea. Id. at 14-15. The state district court found that Applicant’s plea was knowing,
intelligent, and voluntary. Id. at 15.
Applicant subsequently filed a motion to withdraw his guilty plea pursuant to
Crim. P. 32(d), and the state district court held an evidentiary hearing. Applicant
testified that his counsel assured him that he would be released after serving six to
eight years if he completed sex offender classes in prison. State Court R., 6/16/08 Hrg.
Tr. at 10-12. Three attorneys who represented Applicant during his first trial and the
plea proceeding testified at the hearing that they explained indeterminate sentencing to
the Applicant and that none of them assured Applicant of release after serving six to
eight years in prison. Id. at 17-21; 33; 40-42; 50.
2. State Appellate Court Proceeding
In Boetger I, the Colorado Court of Appeals resolved Applicant’s challenge to the
validity of his plea agreement on the following grounds:
At an evidentiary hearing on defendant’s motion, the court heard
testimony from defendant, his plea counsel, and two other attorneys from
plea counsel’s firm who had participated in the case (one of whom had
represented defendant at a trial on the original charges that had ended in
a mistrial due to a hung jury).
Based on this testimony, as well as the court’s review of the written
plea agreement and the transcript of the providency hearing (which had
been conducted before a different judge), the court determined that
defendant had not (1) demonstrated that plea counsel provided ineffective
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assistance; or (2) carried his burden of demonstrating “a fair and just
reason to withdraw his guilty plea.” Accordingly, the court denied the
motion and imposed sentence.
On appeal, defendant’s primary argument is that the court abused
its discretion by not accepting his testimony indicating that he relied on
plea counsel’s erroneous assurance that he would be paroled in six to
eight years. We disagree. The written plea agreement, the transcript of
the providency hearing, and the testimony of defendant’s three former
attorneys all support the trial court’s finding that defendant fully
understood that an indeterminate sentence could result in life
imprisonment. Further, it was the trial court’s prerogative, as the finder of
fact, to credit plea counsel’s testimony in which he unambiguously denied
having assured defendant “that he would be out in six to eight years.”
See People v. Downey, 994 P.2d 452, 455 (Colo. App. 1999) (when the
trial court serves as fact finder, the weight and credibility to be given the
testimony of witnesses are within its province), aff’d, 25 P.3d 1200 (Colo.
2001).
...
Finally, defendant argues that the court should have allowed him to
withdraw his guilty plea because neither his attorneys nor the court
explicitly advised him that he could be sentenced to life imprisonment if he
were to be released on parole and then reincarcerated f ollowing a parole
revocation. This claim is unconvincing because the transcript of the
providency hearing reflects that the court advised defendant his “parole
could also extend to the remainder of your natural life.” We conclude this
statement constituted a sufficient advisement concerning the
consequences of parole revocation because “[t]here is no logical
understanding of the term ‘parole’ which does not contemplate the
possibility that a parole violator will be reincarcerated for the balance of
the parole period.” People v. Jones, 957 P.2d 1046, 1048 (Colo. App.
1997) (the possibility of reincarceration for a parole violation is a collateral
consequence of a plea for which no affirmative advisement is required).
For the foregoing reasons, we cannot say the trial court abused its
discretion by refusing to allow defendant to withdraw his guilty plea.
Docket No. 10-3 at 4-6, 8-9.

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3. Analysis
a. Sentencing Ramifications of Guilty Plea
The transcript of the providency proceeding in the state district court supports the
state appellate court’s finding that Applicant understood the sentencing provisions of
the plea agreement. “Solemn declarations in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). And “the representations of the
defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings
made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings.” Id. at 73-74.
Although Applicant testified at the Crim. P. 32(d) evidentiary hearing that counsel
misrepresented the term of incarceration, the state district court was not persuaded by
this testimony, but instead credited the testimony of Applicant’s former attorneys that
they never assured Applicant he would be released from prison in six to eight years and
that they explained the nature of indeterminate sentencing to him. Under the
deferential AEDPA standard of review, a state court’s credibility determinations are
presumed to be correct and must be rebutted by clear and convincing evidence. See
Clayton v. Jones, 700 F.3d 435, 442 (10th Cir. 2012); Morris v. Ulibarri, No. 12-2160,
513 F. App’x 777, 778 (10th Cir. March 20, 2013) (unpublished); a ccord Rice v. Collins,
546 U.S. 333, 341-42 (2006) (“Reasonable minds reviewing the record might disagree
about the prosecutor’s credibility, but on habeas review that does not suffice to
supersede the trial court’s credibility determination.”). Applicant’s self-serving

13

statements, which the state district court did not believe, do not undermine the state
court’s factual findings.
Moreover, Applicant fails to establish that he was prejudiced as a result of any
erroneous advice by defense counsel as to his probable release date. “[D]ef ense
counsel's failure to advise, or its furnishing of erroneous advice, regarding the
consequences of a guilty plea generally does not cause the defendant prejudice if the
defendant is correctly informed of the consequences by the trial court or other sources
prior to entering the plea.” Schumacher v. Ortiz, 405 F. App’x 290, 293 (10th Cir. Dec.
15, 2010) (unpublished). As discussed above, both the plea agreement and the state
district court judge informed Applicant that he would be sentenced to a minimum range
of 6-8 years in prison and a maximum term of life. Docket No. 35-1 at 15; State Court
R. 12/3/07 Hrg. Tr., at 3. Because Applicant was apprised of the sentencing
consequences of his guilty plea, his assertion that he would not have pleaded guilty but
instead proceeded to trial if he knew he was facing a possible life sentence does not
suffice to demonstrate prejudice. See, e.g., United States v. Gordon, 4 F.3d 1567,
1571 (10th Cir. 1993) (“Given the fact that Defendant pleaded guilty even after being so
informed by the court, his mere allegation that, but for original counsel’s failure to inform
him about the use of relevant conduct in sentencing, he would have insisted on going to
trial, is insufficient to establish prejudice.”); United States v. Hamilton, 510 F.3d 1209,
1216 (10th Cir. 2007) (“In light of the court’s careful explanation of the plea’s
consequences and [the defendant’s] testimony that he understood those
consequences, [the defendant’s] allegation that he would have gone to trial but for his

14

attorney’s failure to advise him of the career-offender provision is insufficient to
establish prejudice.”).
The Court finds that the Colorado Court of Appeals’ determination of Applicant’s
claims challenging the validity of his guilty plea was not contrary to, or an unreasonable
application of, Boykin, Brady, or Hill. Accordingly, Applicant is not entitled to federal
habeas relief on his allegations that his plea was constitutionally infirm because he did
not know and understand the sentencing consequences.
b. Insufficient Advisement Concerning Parole
Applicant also contends that the trial court failed to advise him of the unlikelihood
that he would ever be paroled and that, if parole was revoked, he could be
reincarcerated for the remainder of his life. The Court finds that the state appellate
court’s determination of these issues was not contrary to, or an unreasonable
application of, federal law. Under Brady, the district court is required to advise the
defendant of the direct consequences of a plea. However, the Supreme Court has
never held that the trial court, or defense counsel, has an obligation to advise the
defendant of the parole consequences of his guilty plea. See Bustos v. White, 521
F.3d 321, 325 (4th Cir. 2008) (recognizing that “no Supreme Court precedent
establishes that parole ineligibility constitutes a direct, rather than a collateral,
consequence of a guilty plea.”); see also Hill, 474 U.S. at 56 (“We have never held that
the United States Constitution requires the State to furnish a defendant with information
about parole eligibility in order for the defendant’s plea of guilty to be voluntary . . .”).

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The Tenth Circuit has held that “[c]onsequences of a guilty plea unrelated to the
length and nature of the federal sentence are not direct consequences.” United States
v. Hurlich, 293 F.3d 1223, 1231 (10th Cir. 2002); see also Sanchez v. United States,
572 F.2d 210, 211 (9th Cir. 1977) (holding that revocation of parole is a collateral
consequence of a guilty plea), cited with approval in Harris v. Allen, 929 F.2d 560, 562
(10th Cir. 1991).
In Padilla v. Kentucky, the Supreme Court recognized that there is a
disagreement among the courts of appeal about how to distinguish between direct and
collateral consequences of a guilty plea. Padilla, 559 U.S. 356, 364 n.8 (2010) (citing
Roberts, Ignorance is Effectively Bliss: Collateral Consequences, Silence, and
Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 119, 124, n.15 (2009)).
However, Padilla did not resolve that conflict. See id.; see also Chairdez v. United
States, 133 S.Ct. 1103, 1110 (2013) (recognizing that “[b]efore Padilla, we had declined
to decide whether the Sixth Amendment had any relevance to a lawyer’s advice about
matters not part of a criminal proceeding.”). Instead, the Court in Padilla issued a
narrow holding that defense counsel has an obligation to advise his client that a guilty
plea would make him subject to automatic deportation pursuant to federal statutes and
that the failure to provide such advice constituted ineffective assistance of counsel. 559
U.S. at 374.
The Court finds that, because there is no clearly established Supreme Court law
requiring a trial court to advise a defendant of the discretionary parole consequences,

16

or parole revocation consequences, of a guilty plea, Applicant’s claim fails under 28
U.S.C. § 2254(d)(1). See Hatch, 527 F.3d at 1018.
The Court further finds that the Colorado Court of Appeals’ determination was
not unreasonable in light of the evidence presented in the state court proceeding. See
28 U.S.C. § 2254(d)(2). Both the plea agreement and the state district court informed
Applicant that, if he were paroled, the duration of parole could be for the remainder of
his natural life. A logical extension of this advisement is that, if parole was revoked,
Applicant might be incarcerated for the remainder of his natural life.
Accordingly, Applicant is not entitled to federal habeas relief for claims one and
six.
C. Claims Three and Four
In claims three and four, Applicant asserts that his plea counsel and Crim. P.
32(d) counsel rendered constitutionally ineffective assistance (“IAC claims”). Docket
No. 1, at 10-12.
1. Claim Three
Mr. Boetger asserts that he was forced to plead guilty because his trial counsel
was not prepared for trial.
At the providency hearing, the state district court gave Applicant two
opportunities to express dissatisfaction with his counsel’s trial preparation efforts, but
he did not do so. First, Applicant responded in the af firmative when the state district
court asked if had been satisfied with the legal advice and representation he had

17

received. Docket No. 35-2 at 6. The following colloquy then occurred between the
state court and Applicant:
THE COURT: One of the things we often have to deal with, Mr. Boetger
— and I want to be honest with you about that — is that people have
“buyer’s remorse” once they go through a plea agreement like this, and
you need to understand that if we go forward this afternoon and you
acknowledge that you’ve been satisfied with the representation that you
have received, in my view, you would not be able to come back at a later
time and allege that you did not receive effective representation from your
attorney. I do not want to be relitigating this matter in months or years
down the road.
Do you understand that?
THE DEFENDANT: Yeah.
THE COURT: So I ask you again, have you been satisfied with the advice
and representation that you’ve received from the Romero law firm?
THE DEFENDANT: Yeah.
Id. at 6-7.
In Boetger I, the Colorado Court of Appeals rejected the ineffective assistance of
counsel claim on the following grounds:
The record also supports the trial court’s determination that
defendant did not prove that his attorneys had performed ineffectively.
Although the court expressed concern about whether plea counsel had
thoroughly prepared for trial, defendant did not argue that he agreed to
the plea bargain and entered his plea because he thought his counsel
was not prepared for trial. Instead, he argued that his counsel gave him
erroneous advice about the likely term of incarceration. Moreover, the
court’s ultimate conclusion that defendant had not demonstrated
ineffective assistance of counsel is supported by the transcript of the
providency hearing which reflects that defendant twice expressed
satisfaction with the performance of his attorneys. These unqualified
assurances were a proper basis for the court to reject defendant’s
subsequent claim that he was coerced to plead guilty because his counsel
was unprepared for trial. See People v. Garcia, 815 P.2d 937, 941-42
(Colo. 1991) (a defendant claiming ineffective assistance of counsel must
show that, but for counsel’s alleged failings, he would not have pleaded
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guilty); People v. Lopez, 12 P.3d 869, 871 (Colo. App. 2000) (because
defendant’s allegations of ineffective assistance of counsel were refuted
by the record, the court did not abuse its discretion by denying his Crim.
P. 32(d) motion without conducting a hearing or appointing substitute
counsel).
Docket No. 10-3 at 6-7.
Applicant’s statements at the providency hearing refute his later assertion that he
only pleaded guilty because his counsel was not prepared for trial. Again, this Court
presumes the verity of Applicant’s “[s]olemn declarations in open court.” Blackledge,
431 U.S. at 74. The Court finds and concludes that the state appellate court’s
resolution of the allegations in claim three comported with Strickland. Applicant
therefore is not entitled to federal habeas relief on this claim.
2. Claim Four
The allegations remaining in claim four are that Applicant’s Crim. P. 32(d)
counsel rendered ineffective assistance by failing to adequately argue the following as
reasons to withdraw Applicant’s guilty plea: that Applicant was innocent of the charge
and that plea counsel had failed to prepare for trial. Docket No. 1 at 12.
In Boetger II, the Colorado Court of Appeals applied a state law standard similar
to the Strickland standard, see Docket No. 10-8 at 20, and resolved the claim as
follows:
Defendant argues that Crim. P. 32(d) counsel was ineffective when
she (1) failed to argue that he pleaded guilty because defense counsel
was not prepared for trial; and (2) failed to advise him to voice his
innocence as a reason for withdrawing his plea. We are not persuaded.
...
Here, defendant failed to sufficiently allege that there was
prejudice. Defendant states that (1) the issues “would have certainly
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exceeded the ‘fair and just reason’ threshold for withdrawing his plea”; (2)
he is “sure the court would have recognized the weight of these errors had
they been presented by his appointed counsel, as part of his ‘fair and just
reason’ to withdraw his plea”; and (3) they would have been meritorious.
But he does not explain why there was a reasonable probability
that the result of his Crim. P. 32(d) motion would have been different if he
had informed the court that he was innocent and had pleaded guilty
because defense counsel was unprepared for trial. Although the division
in Boetger I noted that defendant did not argue that this was the reason
he pleaded guilty, it also concluded that, if he had, his assurances to the
court during the providency hearing that he was satisfied with the
performance of his attorneys would have provided a reason to reject his
claim. Defendant also does not cite to any authority to support this
contention.
Under these circumstances, we conclude that defendant’s claim
fails as a matter of law. [State case law citation omitted]. Accordingly, we
need not determine whether his allegations regarding counsel’s
performance were sufficient to warrant a hearing. [State case law citation
omitted].
Id. at 10-12.
The Court finds that the state appellate court’s resolution of Applicant’s
allegations that Rule 32(d) counsel was ineffective in failing to argue the ineffectiveness
of plea counsel is consistent with Strickland for the reasons discussed in the analysis of
with regard to claim three above.
With regard to Rule 32(d) counsel’s failure to press a claim of actual innocence,
Applicant has failed to show how he was prejudiced. In conjunction with his IAC claim,
Applicant sought to demonstrate his innocence to the Colorado Court of Appeals by
arguing that “70% of my defense including all the evidence in my favor was never
revealed.” Docket No. 10-6, at 65. However, he failed to explain the specific nature of
any exculpatory evidence. Conclusory assertions are insufficient to support an IAC
claim. See Cummings v. Sirmons, 506 F.3d 1211, 1233-1234 (10th Cir. 2007).
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In addition, Applicant made the following argument at his sentencing hearing:
I am not a Satanist and I’ve never made [M.M.] pray to the devil for
his mom to die. I’m not or never have been into bestiality and never
exposed [M.M.] to such things. I’ve never pushed drugs on [M.M.], never
gave him a pipe trying to get him hooked on drugs. I’ve never tried to
poison my wife with flea powder and I’ve never stalked the neighbors with
a shotgun. I’ve never spanked, let alone hit [M.M.], and I never, ever had
any sort of inappropriate sexual contact with him.
Docket No. 35-3, Sentencing Hrg. Tr., at 11.
However, Applicant’s assertions of factual innocence did not specifically rebut
the charges of digital penetration, fondling, and masturbation. Indeed, at the
providency hearing, Applicant admitted a factual basis for the fondling charge to which
he pled guilty. Docket No. 35-2 at 14-15.
In sum, the Court finds and concludes that the state appellate court’s
determination that Applicant was not prejudiced by Crim. P. 32(d) counsel’s failure to
raise Applicant’s factual innocence as a basis to withdraw his plea was consistent with
Strickland. Applicant is not entitled to federal habeas relief for claim four.
D. Claim Twelve
In claim twelve, Applicant asserts that the cumulative effect of the errors in his
plea proceeding warrants habeas corpus relief. Docket No. 1 at 16.
Cumulative error is present when the “cumulative effect of two or more
individually harmless errors has the potential to prejudice a defendant to the same
extent as a single reversible error.” Duckett v. Mullin, 306 F.3d 982, 992 (10th Cir.
2002) (quoting United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en
banc)). “A cumulative-error analysis merely aggregates all the errors that individually
have been found to be harmless, and therefore not reversible, and it analyzes whether
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their cumulative effect on the outcome of trial is such that collectively they can no
longer be determined to be harmless.” Id. (quoting Rivera, 900 F.2d at 1470). On
federal habeas review, a cumulative error analysis applies only to cumulative
constitutional errors. Young v. Sirmons, 551 F.3d 942, 972 (10th Cir. 2008).
There is a split in the Courts of Appeal as to whether the need to conduct a
cumulative-error analysis is clearly established federal law under § 2254(d)(1). See
Hooks v. Workman, 689 F.3d 1148, 1194 n.24 (10th Cir. 2012). T he Tenth Circuit has
indicated, however, that in the context of ineffective-assistance claims, “for AEDPA
purposes, the cumulative-error inquiry is clearly established federal law. Id.; see also
Littlejohn v. Trammell, 704 F.3d 817, 869 (10th Cir. 2013) (recognizing that “[a]though
we have never expressly held . . . that cumulative-error analysis is clearly established
federal law, we have long conducted cumulative-error analyses in our review of federal
habeas claims.”) (collecting cases). This Court need not resolve the issue because
under the deferential AEDPA standard of review, Applicant is not entitled to relief.
The Colorado Court of Appeals did not specifically address Applicant’s
allegations of cumulative error raised in his Opening Brief in the state post-conviction
proceeding. See Docket No. 10-7 at 53-58, and see generally Docket No. 10-8.
However, because the state appellate court affirmed the trial court’s denial of
Applicant’s state post-conviction motion in its entirety, this federal habeas court affords
that decision deference. See Harrington, 131 S. Ct. at 784-85. As discussed, supra,
this Court has applied the AEDPA standard of review to each of Applicant’s remaining
claims and has concluded that the Colorado Court of Appeals’ resolution of the claims
comported with applicable federal law. As such, the Court further finds that the state
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appellate court’s rejection of Applicant’s cumulative error claim was also consistent with
federal law. See Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003) (cumulative
error claim fails where there were no constitutional errors in the petitioner’s state
criminal proceeding).
Applicant therefore is not entitled to federal habeas relief for claim twelve.
IV. ORDERS
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 [Docket No. 1], filed by Michael A. Boetger on March 4, 2014, is denied
and this action is dismissed with prejudice. It is further
ORDERED that no certificate of appealability shall issue because Applicant has
not made a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2); Fed. R. Governing Section 2254 Cases 11(a); Slack v. McDaniel, 529
U.S. 473, 483-85 (2000). It is further
ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505.00 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.

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DATED June 16, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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