Linzy v. Faulk et al
Filing
36
ORDER DENYING § 2254 APPLICATION: Applicant Alex Homer Linzy's 1 Application for a Writ of Habeas Corpus is DENIED and this case is DISMISSED on the merits. No certificate of appealability will issue because Applicant has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional and procedural rulings are correct and whether the Application states a valid claim of the denial of a constitutional right. By Judge Raymond P. Moore on 10/21/2014. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge Raymond P. Moore
Civil Action No. 14-cv-00962-BNB
ALEX HOMER LINZY,
Applicant,
v.
FRANCIS FAULK, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER DENYING § 2254 APPLICATION
Applicant, Alex Homer Linzy, is in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the Correctional Facility in Limon, Colorado.
He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(ECF No. 1) challenging the validity of his convictions and sentence imposed in Denver
District Court Case No. 04CR1331. Respondents have filed an Amended Answer (ECF
No. 31), and Applicant has filed a Reply (ECF No. 30). Having considered the same,
along with the state court record, the Court will deny the Application.
I. BACKGROUND
In February 2006, Applicant was convicted by a jury in Denver District Court
Case No. 04CR1331 of second degree kidnapping, sexual assault and third degree
assault. (ECF No. 11-1, at 3-6, 18). He was adjudicated a habitual criminal and
sentenced to a 96-year prison term for the kidnapping conviction, a consecutive 48-
years-to-life term for the sexual assault conviction, and a concurrent two-year term for
the assault conviction. (Id. at 16-17).
Applicant’s convictions and sentences were affirmed on direct appeal in People
v. Linzy (Linzy I), No. 06CA0700 (Colo. App. Aug. 28, 2008) (unpublished). (ECF No. 1,
at 59). The Colorado Supreme Court denied certiorari review on January 26, 2009.
(ECF No. 11-4).
Applicant filed his first motion for post-conviction relief pursuant to Colo. R. Crim.
P. 35(c), on December 30, 2005, before his sentencing. (ECF No. 1, at 76). As
explained by the Colorado Court of Appeals:
. . . [D]efense counsel and the court explained to Linzy, and Linzy
acknowledged he understood, that Crim. P. 35(c) was not applicable until
after sentencing and the trial court therefore could not rule on Linzy’s
motion until that time.
...
On October 1, 2009, after the direct appeal was decided and the mandate
issued, Linzy moved the district court for a free copy of the trial
transcripts. One month later, he asked to amend his original 35(c) motion
and requested conflict-free counsel to pursue the 35(c) motion.
(ECF No. 1, at 76-77).
In April 2010, the state district court denied Applicant’s f irst post-conviction
motion on the merits. (ECF No. 1, at 69-71). Applicant’s motion for “Rehearing” was
denied in July 2010. (Id. at 72-74). The Colorado Court of Appeals affirmed the court’s
order in People v. Linzy, No. 10CA1050 (Linzy II) (Colo. App. Sept. 22, 2011)
(unpublished). (ECF No. 1, at 75-90). The Colorado Supreme Court denied certiorari
review on June 25, 2012. (ECF No. 1, at 91).
2
While the appeal in Linzy II was pending, Applicant filed a second motion for
state post-conviction relief on April 21, 2012. (ECF No. 11-1, at 12). The state district
court denied the motion for lack of jurisdiction because the mandate had not issued on
Applicant’s appeal of his first post-conviction motion. (ECF No. 1, at 100). After the
mandate issued on August 10, 2012, Applicant resubmitted his second Colo. Crim. P.
Rule 35(c) motion, which was denied as untimely and successive on February 4, 2013.
(Id. at 96-98). The Colorado Court of Appeals affirmed the district court’s order in
People v. Linzy (Linzy III), No. 13CA0418 (Colo. App. Feb. 27, 2014) (unpublished).
(ECF No. 1, at 99-107). Applicant did not seek certiorari review in the Colorado
Supreme Court.
Mr. Linzy filed his first Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 in this Court on November 12, 2012 in Case No. 12-cv-03063-BNB. In
response to a court order directing why the Application should not be dismissed as a
mixed petition, Mr. Linzy requested that the entire action be dismissed without prejudice
so that he could exhaust state court remedies for all of his claims. Senior Judge Lewis
T. Babcock dismissed the application without prejudice on February 21, 2013. (ECF No.
1, at 92-95).
Mr. Linzy filed his second (but not successive) § 2254 application on April 2,
2014, raising twelve claims:
(1) The trial court’s Batson ruling deprived Applicant of his Fourteenth
Amendment due process and equal protection rights (ECF No. 1, at 9-10).
(2) The prosecutor’s improper remarks during closing argument deprived
Applicant of his Fourteenth Amendment due process and equal protection
rights. (Id. at 12).
3
(3) Trial counsel was constitutionally ineffective in failing to: (a) conduct a
prompt pretrial investigation; (b) investigate an alibi defense; (c) secure
readily available exculpatory phone records; (d) consult a physician
regarding the absence of corroborating medical evidence to substantiate
the victim’s allegations; (e) file a timely motion to suppress test results; (f)
challenge the chain of custody of the prosecution’s physical evidence; (g)
object to the admission of inadmissible evidence at trial and timely request
the presence of a laboratory technician to testify at trial; and, (h) in failing
to present a proper closing argument. (Id. at 14-27).
(4) Appellate counsel was constitutionally ineffective in failing to
communicate with the Applicant. (Id. at 28).
(5) The state appellate courts applied an incorrect standard of review to
Applicant’s claim of prosecutorial misconduct. (Id. at 30).
(6) The state post-conviction court failed to enter written findings of fact
and conclusions of law in denying Applicant’s motion for post-conviction
relief. (Id. at 30).
(7) Trial and appellate counsel rendered constitutionally ineffective
assistance by failing to challenge the sufficiency of the evidence
supporting the asportation element of the kidnapping conviction. (Id. at
33).
(8) The trial court denied Applicant a fair trial by allowing the State’s
forensic expert to testify about DNA test results. (Id. at 35).
(9) Trial counsel rendered constitutionally ineffective assistance by failing
to object to the testimony of the prosecution’s forensic expert. (Id. at 39).
(10) Appellate counsel rendered constitutionally ineffective assistance by
failing to assert the issues raised in habeas claims 8 and 9 on direct
appeal, the default of which should be excused under Martinez v. Ryan,
132 S.Ct. 1309 (2012). (Id. at 45).
(11) The state district court’s failure to appoint counsel in Applicant’s first
state collateral review proceeding prevented Applicant from raising all of
his ineffective-assistance-of counsel (IAC) claims in his initial motion for
post-conviction relief. (Id. at 49).
(12) the state post-conviction court erred in determining, without an
evidentiary hearing, that Applicant’s second post-conviction motion was
time barred and successive. (Id. at 54-55).
4
In a July 16, 2014 Order, the Court dismissed claims 5, 6 and 12 for failure to
present federal issues cognizable under § 2254. (ECF No. 21, at 23). The Court
further stated that it did not construe claim 11 as a distinct claim for relief. Claims 8 and
10 were dismissed as procedurally defaulted. (Id.). The Court deferred ruling on the
applicability of a procedural bar to claims 3(c) -3(h), 7 (ineffective assistance of trial
counsel), and 9, pending the Court’s review of the state court record. (Id.). The Court
ordered Respondents to file an Answer to claims 1, 2, 3(a), 3(b), 4 and 7 (ineffective
assistance of appellate counsel) within thirty days of the July 16 Order. (Id.). The Court
further instructed Respondents to include any additional argument concerning the
merits of claims 3(c) – 3(h), 7 and 9, under Martinez.
In the July 16 Order, the Court also reserved ruling on the Respondents’
assertion that the Application is time-barred. (ECF No. 21, at 10-12). The one-year
limitation period in 28 U.S.C. § 2244(d) is not jurisdictional. See Day v. McDonough,
547 U.S. 198, 205 (2006) (stating that a statute of limitations defense is not
jurisdictional, but resembles other threshold barriers such as exhaustion of state
remedies and procedural default). There is no language in 28 U.S.C. § 2244(d) that
would prohibit this Court from bypassing the issue of timeliness if the claims asserted in
the § 2254 Application are without merit. After carefully reviewing the state court
record, the Court declines to resolve the complex issue of whether the one-year
limitation period bars the Application because the Court concludes that the Application
is subject to dismissal on the merits. See Pough v. United States, 442 F.3d 959, 965
(6th Cir. 2006) (discussing statute of limitation defense applicable to motions under 28
5
U.S.C. § 2255, and citing Aaron v. United States, 291 F.3d 708, 718 (11th Cir. 2002)
(Carnes, J., concurring) (“Sometimes it will be easier for a court to deny relief on the
merits than to figure out the issues relating to the statute of limitations. Nothing in the
statute prohibits a court from proceeding in that way”); see also Hooks v. Workman, 606
F.3d 715, 722 n. 5 (10th Cir. 2010) (noting, with apparent approval, that the district
court denied the IAC claims asserted in the amended § 2254 petition on the merits,
without resolving the statute of limitations defense advanced by Respondent).
The Court addresses the merits of Applicant’s remaining claims below.
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The court reviews claims of legal error and mixed questions of law and fact
pursuant to 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
6
applicant seeks to apply a rule of law that was clearly established by the Supreme
Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362,
390 (2000). Clearly established federal law “refers to the holdings, as opposed to the
dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases
where the facts are at least closely-related or similar to the case sub
judice. Although the legal rule at issue need not have had its genesis in
the closely-related or similar factual context, the Supreme Court must
have expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the court must determine
whether the state court’s decision was contrary to or an unreasonable application of
that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law
if: (a) “the state court applies a rule that contradicts the governing law set
forth in Supreme Court cases”; or (b) “the state court confronts a set of
facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [(10 th 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
7
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
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A] decision
is ‘objectively unreasonable’ when most reasonable jurists exercising their independent
judgment would conclude the state court misapplied Supreme Court law.” Maynard,
468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires
considering the rule's specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Richter, 131 S.Ct. at 786 (internal quotation marks omitted). In conducting this
analysis, the court “must determine what arguments or theories supported or . . . could
have supported[ ] the state court's decision” and then “ask w hether 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).
8
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 131 S.Ct. at 786 (stating that “even a strong case for relief does not mean the
state court's contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court's ruling on the claim being
presented in federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 131 S.Ct. 786–87.
The court reviews claims asserting factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002).
Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the court
must presume that the state court's factual determinations are correct and the petitioner
bears the burden of rebutting the presumption by clear and convincing evidence. “The
standard is demanding but not insatiable . . . [because] ‘[d]ef erence does not by
definition preclude relief.’” Miller–El v. Dretke, 545 U.S. 231, 240 (2005) (quoting
Miller–El v. Cockrell, 537 U.S. 322, 340 (2003)).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
9
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However,
a pro se litigant's “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts
that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle
Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002).
III. ANALYSIS
A. Claim 1
For his first claim, Applicant, an African American, asserts that the trial court’s
Batson ruling deprived him of his Fourteenth Amendment due process and equal
protection rights (ECF No. 1, at 9-10). He alleges that the prosecution’s use of a
peremptory challenge to excuse Juror C.H., who was the only African-American
prospective juror, raised an inference of purposeful discrimination. (Id. at 10-11).
Applicant claims that the trial court failed to follow the burden-shifting procedure
outlined in Batson v. Kentucky, 476 U.S. 79 (1986), to determine whether exclusion of
Juror C.H. violated his constitutional rights. (ECF No. 1, at 11-12).
In Batson, the Supreme Court held that purposeful discrimination based on the
race of a juror violates the Equal Protection Clause of the Fourteenth Amendment. 476
U.S. at 84. Batson provides a three-step analysis for determining whether a
10
peremptory strike runs afoul of this rule: (1) the defendant must present a prima facie
case by showing facts supporting an inference of discriminatory purpose; (2) if the
defendant satisfies step one, the burden shifts to the government to provide a
race-neutral justification; and (3) if the government can do this, the court then decides
whether purposeful racial discrimination nonetheless occurred. See Johnson v.
California, 545 U.S. 162, 168 (2005).
“A [race-]neutral explanation . . . means an explanation based on something
other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360 (1991).
See also Rice v. Collins, 546 U.S. 333, 338 (2006) (“Although the prosecutor must
present a comprehensible reason, ‘[t]he second step of this process does not demand
an explanation that is persuasive, or even plausible’; so long as the reason is not
inherently discriminatory, it suffices.”) (quoting Purkett v. Elem, 514 U.S. 765, 767-68,
(1995) (per curiam)). The final step involves evaluating “the persuasiveness of the
justification” proffered by the prosecutor, but “the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the opponent of the strike.”
Purkett, 514 U.S. at 768.
In Linzy I, the Colorado Court of Appeals applied the federal standards derived
from Batson, see ECF No. 1, at 62-64, and rejected Applicant’s claim on the following
grounds:
Contrary to defendant’s assertions, the trial court properly
employed the three-part test set forth in Batson. Upon defendant’s Batson
objection, the prosecution offered a number of race-neutral reasons for its
challenge, all relating to the negative experiences that several of C.H.’s
family members had had with the justice system, including her cousin’s
conviction of sexual assault, which was also charged in this case. This
11
satisfied the first two steps of Batson. See Vieyra, 169 P.3d at 211 (once
the prosecution has offered a race-neutral reason for using the
peremptory challenge, the first step of the Batson challenge becomes
moot, and the defendant is presumed to have made a prima facie case).
Thereafter, the trial court gave defendant the opportunity to rebut
the prosecution’s justification and to demonstrate that the explanation was
only a pretext. Defendant then argued:
There were several [potential jurors] that were dishonest
yesterday in chambers. We had [C.H.]. [The prosecution]
passed on her for cause. I challenged her. He resisted the
challenge and did not challenge her at that point. This is not
a race neutral selection. This is one created out of animous
[sic] violation [sic] of Batson. He wanted her yesterday. And
the only reason he doesn’t want her now is she might be on
the jury.
The fact that the court was unconvinced by defendant’s argument
does not show that the court misapplied Batson.
For these reasons, we find that the trial court did not clearly err in
rejecting defendant’s challenge under Batson.
(ECF No. 1, at 65-66).
The state court record demonstrates that the trial court applied Batson’s threepart procedure in deciding Applicant’s claim. After Applicant raised a Batson challenge,
the prosecution identified race-neutral reasons for the strike, and Applicant was allowed
to argue why those reasons were a pretext for purposeful discrimination.1
The trial
court then denied the Batson challenge, stating that “[t]he Court finds a sufficient race
neutral reason.”2
1
State Court R., 11/29/05 Trial Tr., at 108-110.
2
Id. at 110.
12
Because the state courts identified and applied the correct federal law, the only
issue before this Court is whether the state court’s determination was reasonable. On
federal habeas review, the Court presumes the state court’s factual findings, including
credibility determinations, are correct, see Saiz v. Ortiz, 392 F.3d 1166, 1180 (10th Cir.
2004), and Applicant must rebut the presumption with clear and convincing evidence.
See 28 U.S.C. § 2254(d)(2). Applicant does not point to any clear and convincing
evidence that the prosecutor’s exercise of a peremptory challenge was raciallymotivated, and there is nothing in the state court voir dire proceeding to support his
claim.3 Even if the trial court had reason to question the prosecutor’s credibility in
expressing doubt about whether Juror C.H. could be fair, that does not “compel the
conclusion that the trial court had no permissible alternative but to reject the
prosecutor’s race neutral justifications and conclude [Applicant] had shown a Batson
violation.” Collins, 546 U.S. at 341; see also Swain v. Alabama, 380 U.S. 202, 220
(1965) (“While challenges for cause permit rejection of jurors on a narrowly specified,
provable and legally cognizable basis of partiality, the peremptory permits rejection for a
real or imagined partiality that is less easily designated or demonstrable.”) (overruled on
other grounds by Batson)).
The Court thus finds that the Colorado Court of Appeals’ decision affirming the
trial court’s Batson ruling was reasonable under federal law. See Rice, 546 U.S. at 338
(federal habeas court can only grant [an applicant’s] petition if it was unreasonable to
credit the prosecutor’s race-neutral explanations for a Batson challenge.”); accord
3
See generally State Court R., 11/29/05 Trial Tr.
13
Snyder v. Louisiana, 552 U.S. 472, 477 (2008) (a court reviewing a Batson claim on
direct appeal [without the deference required by AEDPA], must defer to the state trial
judge's finding of no racial motivation “in the absence of exceptional circumstances.”
(internal quotation marks omitted)). Applicant is not entitled to relief for claim one.
B. Claim 2
In claim 2, Applicant maintains that the prosecutor’s improper remark during
closing argument violated his Fourteenth Amendment due process and equal protection
rights. (ECF No. 1, at 12). Specifically, he contends that the prosecutor’s statement
that “You can clearly hear Mr. Linzy . . .in the background [in the recording of the 911
call],” was not established by the evidence at trial and was unduly prejudicial. (ECF No.
1, at 12-14).
Habeas relief is appropriate when a prosecutor's comments “so infected the trial
with unfairness as to make the resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 180 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 643 (1974)); see also United States v. Young, 470 U.S. 1, 11 (1985)
(“Inappropriate prosecutorial comments, standing alone, would not justify a reviewing
court to reverse a criminal conviction obtained in an otherwise fair proceeding.”). In
applying this demanding standard, “it is not enough that the prosecutors' remarks were
undesirable or even universally condemned.” Darden, 699 F.2d at 1036; see also
Tillman v. Cook, 215 F.3d 1116, 1129 (10th Cir. 2000) (“not every improper or unfair
remark made by a prosecutor will amount to a federal constitutional deprivation.”).
14
“The Darden standard is a very general one, leaving courts ‘more leeway . . . in
reaching outcomes in case-by-case determinations.’” Parker v. Mathews, 132 S.Ct.
2148, 2155 (2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
In Linzy II, the Colorado Court of Appeals reached the following decision on
Applicant’s claim:
Prosecutorial misconduct that misleads a jury may be a basis to
reverse a conviction. Harris v. People, 888 P.2d 259, 264 (Colo. 1995). “In
a claim of prosecutorial misconduct, the reviewing court engages in a
two-step analysis. First, it must determine whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances and, second, whether such actions warrant reversal
according to the proper standard of review.” Wend v. People, 235 P.3d
1089, 1096 (Colo. 2010) (internal citation omitted). Because defense
counsel objected to closing statements at trial, we conduct a harmless
error review. Id.
Nothing in the prosecution’s closing argument rises to the level of
prosecutorial misconduct. Linzy points to the prosecution’s statement that
the jury could hear Linzy’s voice in the background of the 9-1-1 call. The
prosecution’s closing argument drew inferences from the trial evidence.
Witnesses testified that Linzy was present when the 9-1-1 call was made.
Thus, the jury could reasonably infer, and the prosecutor could properly
argue, that Linzy’s voice was in the background of the call. Despite Linzy’s
assertions to the contrary, nothing in the record substantiates the claim
that the prosecutor misled the jury. Therefore, we find no error.
(ECF No. 1, at 86-87).
The state appellate court determined Applicant’s claim under a state law
standard similar to the standard identified by the United States Supreme Court. Based
on testimony by the victim and a neighbor that Applicant was present when the 911 call
was made,4 it was reasonable for the prosecutor to infer for the jury that it was
Applicant’s voice heard in the background of the 911 recording. See Stouffer v.
4
State Court R., 11/29/05 Trial Tr., at 161; 12/0105 Trial Tr., at 152-54.
15
Trammell, 738 F.3d 1205, 1222, 1224 (10th Cir. 2013) (recognizing that a prosecutor
may draw fair inferences from the evidence without running afoul of the Due Process
Clause). Further, even the prosecutor’s comment was misleading, it was an isolated
remark and could not have impacted the verdict given the undisputed evidence that
Applicant was present when the 911 call was made. In addition, the trial court
instructed the jury during closing argument to “remember that what the attorneys say is
not evidence. The jury has all the evidence that they may rightly . . . consider in their
deliberations.”5
The Court finds that the state appellate court’s resolution of Applicant’s claim
was consistent with Darden and Young. Accordingly, Applicant is not entitled to federal
habeas relief for claim 2.
C. Ineffective Assistance of Trial Counsel (IAC Claims)
For his third claim, Applicant maintains that trial counsel was constitutionally
ineffective in failing to: (a) conduct a prompt pretrial investigation; (b) investigate an alibi
defense; (c) secure readily available exculpatory phone records; (d) consult a physician
regarding the absence of corroborating medical evidence to substantiate the victim’s
allegations; (e) file a timely motion to suppress test results; (f) challenge the chain of
custody of the prosecution’s physical evidence; (g) object to the admission of
inadmissible evidence at trial and timely request the presence of a laboratory technician
to testify at trial; and, (h) in failing to present a proper closing argument. (ECF No. 1, at
14-27).
5
State Court R.,12/2/05 Trial Tr., at 40.
16
Because Applicant properly exhausted state court remedies for sub-claims 3(a)
and 3(b), the Court reviews those claims under the AEDPA standards. Applicant did
not properly exhaust state remedies for sub-claims 3(c) - 3(h). He asserts that his
procedural default of those claims should be excused under Martinez because the state
post-conviction court failed to appoint counsel to represent him. As discussed in the
July 16, 2014 Order, a habeas petitioner cannot av ail himself of the Martinez exception
unless the IAC claims are substantial – i.e., have “some merit.” 132 S. Ct. at 1318.
To prevail on his claims that trial counsel was constitutionally ineffective,
Applicant must show that: (1) counsel's legal representation fell below an objective
standard of reasonableness; and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Judicial scrutiny of
counsel’s performance is highly deferential. Id. at 689. Counsel’s decisions are
presumed to represent “sound trial strategy;” “[f]or counsel’s performance to be
constitutionally ineffective, it must have been completely unreasonable, not merely
wrong.” Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999) (internal quotations omitted).
Under the AEDPA standard of review, “the question is not whether counsel's actions
were reasonable. The question is whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard.” Richter, 131 S.Ct. at 788.
Prejudice exists when there is a reasonable probability that, but for counsel’s
defective representation, the result of the proceeding would have been different.
Strickland, 466 U.S. at 693. The likelihood of a different result must be substantial, not
17
just conceivable. Id. The Court need not address both prongs of the Strickland inquiry
if Applicant’s claim fails on one. Id. at 697.
1.
Exhausted IAC claims: sub-claims 3(a) and 3(b)
In claim three, Applicant maintains that trial counsel was ineffective in failing to:
(a) conduct a prompt pretrial investigation; and (b) investigate an alibi defense. (ECF
No. 1, at 16-17).
In Linzy II, the Colorado Court of Appeals applied the Strickland standard, see
ECF No. 1, at 83-85, and rejected the IAC claims on the following grounds:
That trial counsel developed a trial strategy different from Linzy’s
does not constitute substandard performance by counsel. The record here
shows that the prosecution’s witnesses were thoroughly cross-examined
and the theory of the case was sufficiently explored, including probing the
allegedly consensual nature of Linzy’s sexual encounter with the victim.
Claiming the result may have been different if a different strategy were
followed does not prove prejudice.6 Given the nature of the evidence,
including the victim’s unequivocal testimony, Linzy has failed to show by a
reasonable probability that, even if his counsel had been ineffective, the
result of the proceeding would have been different.
In addition, contrary to Linzy’s claim, the record indicates that his
counsel conducted pretrial investigation. The defense investigator testified
at trial that he interviewed one of the doctors, investigated the area where
the victim was abducted, and viewed video from a local convenience store
to see if anyone resembling Linzy entered the night of the assault.
Because the record negates the need for an evidentiary hearing
regarding defense counsel’s effectiveness at trial, the trial court did not err
by not holding a hearing on this issue.
(ECF No. 1, at 85-86).
6
In Linzy II, the state appellate court noted: Although Linzy claims that defense counsel failed to
thoroughly investigate his alibi witness, Linzy’s own admission about the timing of the phone calls to the
potential witness renders it possible to have made the calls while the victim was still under Linzy’s control.
Thus, the decision not to call the witness could have been well-considered trial strategy. (ECF No. 1, at
85).
18
The Court finds that the state appellate court’s analysis comported with
Strickland. Applicant’s conclusory assertions that counsel failed to conduct a proper
pre-trial investigation are insufficient to demonstrate prejudice. See Cummings v.
Sirmons, 506 F.3d 1211, 1228-29, 33-34 (10th Cir. 2007) (allegations based on
unsubstantiated assertions of fact are not sufficient to satisfy Strickland); see also
United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (ineffective assistance
claim fails “where [petitioner's] allegations are merely conclusory in nature and without
supporting factual averments”). Moreover, the Colorado Court of Appeals’ factual
findings concerning the pre-trial investigation conducted by counsel are supported by
the state court record 7 and have not been rebutted by Applicant.
With regard to Applicant’s claim that counsel failed to investigate an alibi
defense, Applicant asserted in his state post-conviction motion that counsel should
have presented testimony from Applicant’s mother, and secured telephone records, to
establish the following: (1) Applicant placed a telephone call to his mother at
approximately 2:30 a.m. from a 7-Eleven located 25-30 blocks away from the house
where the sexual assault occurred; and, (2) he called the victim between 10:00 and
10:15 p.m. from the house where the sexual assault occurred. 8
The state court record reflects that trial counsel did investigate Applicant’s
asserted alibi that he made a phone call from a 7-Eleven at approximately 2:30 a.m.,
which was during the five-hour time frame the victim testified she was being held by the
7
State Court R., 12/1/05 Trial Tr., at 242-52.
8
Id., Court File, at 208-210; 219-220.
19
Applicant. The defense investigator testified that he reviewed the video surveillance
tapes and that there were two or three individuals on the tapes that could have been
the Applicant, but the investigator could not make a positive identification.9
Further, there is no reasonable likelihood that testimony from Applicant’s mother,
or the telephone records, would have changed the outcome of Applicant’s trial. The
victim testified that Applicant pulled her out of her car around 10:30 p.m. and kept her in
the house for about five hours, while he assaulted her. 10 She further testified that she
passed out twice during that time.11 As the Colorado Court of Appeals noted, the
purported “alibi” evidence is not inconsistent with Applicant making a telephone call
from the house just minutes before the crimes occurred there, nor does it preclude the
possibility that Applicant could have left the crime scene for a brief period to make a
phone call and then returned. In addition, the DNA ev idence corroborated the victim’s
testimony that Applicant sexually assaulted her. Accordingly, the Court finds that the
state appellate court’s resolution of sub-claims 3(a) and 3(b) was not inconsistent with
Strickland. Sub-claims 3(a) and 3(b) will be dismissed.
2.
Procedurally defaulted claims: sub-claims 3(c) - 3(h).
Applicant asserts that his procedural default of sub-claims 3(c) - 3(h) should be
excused under Martinez because the state post-conviction court failed to appoint
9
State Court R., 12/1/05 Trial Tr., at 242-50.
10
Id., 11/29/05 Trial Tr., at 141-50.
11
Id. at 150, 153.
20
counsel to represent him. Again, Martinez applies only if Applicant’s claims have “some
merit.” 132 S. Ct. at 1318.
a.
sub-claim 3(c)
Applicant asserts in sub-claim 3(c) that counsel was ineffective in failing to
secure telephone records to prove that, at the time of the kidnapping and assaults,
Applicant was approximately 25 blocks from the crime scene, placing a telephone call
to his mother. (ECF No. 1, at 17-20).
This claim fails on the prejudice prong of Strickland for the same reasons
discussed in the Court’s analysis of sub-claims 3(b), supra. Sub-claim 3(c) will be
dismissed.
b.
sub-claim 3(d)
Applicant contends that counsel was ineffective in failing to consult a physician
regarding the absence of corroborating medical evidence to substantiate the victim’s
allegations that Applicant forced her to have sexual intercourse. (ECF No. 1, at 21-22).
The victim’s testimony is sufficient to establish the commission of a crime. See,
e.g., Rea v. Suthers, 402 F. App’x 329, 331 (10th Cir. Nov. 12, 2010) (unpublished)
(“the testimony from the victims was plainly sufficient to establish Rea’s guilt”); see also
United States v. Samuels, 493 F.3d 1187, 1192 n. 7 (10th Cir. 2007) (noting that
“corroboration is generally not necessary for the court to find testimony credible”).
Further, a physician testified that it is possible to be sexually assaulted without any
physical evidence in the genital area.12 There was also evidence at trial that the victim
12
State Court. R., 12/1/05 Trial Tr., at 50.
21
and Applicant had consensual sexual intercourse approximately three days prior to the
sexual assault.13 The jury weighed all of this evidence and found Applicant guilty of
sexual assault. Applicant does not explain how any additional expert testimony would
have tipped the scales in his favor at trial. See Boyle v. McKune, 544 F.3d 1132, 1138
(10th Cir. 2008) (prejudice not shown from counsel's failure to call witnesses where
applicant could not show what helpful testimony the witnesses would have provided).
Accordingly, the Court finds that sub-claim 3(d) is without merit and, therefore, the claim
will be dismissed.
c.
sub-claims 3(e), 3(f), and 3(g)
In claim 3, Applicant further asserts that trial counsel should have: (e) filed a
timely motion to suppress test results on the ground that the chain-of-custody failed to
establish that the semen sample that matched the Applicant’s DNA was removed from
the victim; (f) challenged the chain of custody of the prosecution’s physical evidence,
and, (g) objected to the admission of inadmissible evidence at trial and to call the
laboratory technician to testify at trial about the rape kit test results. (ECF No. 1, at 2226). In support of his claim, Applicant relies on documents produced in pre-trial
discovery which revealed that the rape test kit results were misplaced for 27 days and
were originally labeled with an incorrect name and property number.14
The Colorado Court of Appeals has summarized the state law chain of custody
requirement as follows:
13
State Court R., 11/29/05 Trial Tr., at 187; 12/1/05 Trial Tr., at 71-72.
14
Id., Court File, at 209, 211.
22
Colo. R. Evid. 901(a) requires that an object must be identified as a
condition precedent to its admissibility. And it is also necessary to identify
an item that has been examined as one bearing the relevant connection.
Normally, to establish that connection, it is necessary to present evidence
showing a complete chain of custody of the item. People v. Sutherland,
683 P.2d 1192, 1197 (Colo.1984) (“The chain of custody of any blood
sample must be established, and failure to do so may be excused only
where circumstances provide reasonable assurances of identity and
unchanged condition of the sample.”).
If the trial court determines a complete chain of custody exists, any
imperfections in the chain go to the weight to be given to the evidence,
rather than to its admissibility. People v. Grace, 55 P.3d 165, 172
(Colo.App.2001).
Of course, it may well not be necessary in every case to establish a
chain of custody to identify the object tested by the expert. If, for example,
the expert describes an object as having the identifying marks placed on
the item or its packaging by an investigator, and there is no evidence of
any interim tampering, such identification may well be sufficient to justify
its admission. See Sutherland, 683 P.2d at 1197.
People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011).
In this case, the prosecution’s expert in forensic biology and DNA analysis
testified, and defense counsel stipulated, that a forensic scientist with the Denver Police
Department Crime Lab tested the vaginal swabs collected from the victim during the
sexual assault exam performed by medical personnel at the Denver Health Medical
Center.15 The testing revealed the presence of semen on the swabs used on the
victim’s vaginal area.16 The DNA analysis expert then extracted DNA from the semen,
15
State Court R., 11/30/05 Trial Tr., at 211, 220-23.
16
Id. at 221-22.
23
compared it to a control DNA sample taken from the Applicant, and concluded that the
DNA samples were a match.17
Evidence of the rape kit test results was properly admitted through the testimony
of the prosecution’s DNA analysis expert. Although Denver Police Department records
indicate that the rape kit test results were originally mis-labeled, the error was rectified
before the DNA analysis occurred. There is no information before the Court that the
evidence ever left the control of the Denver Police Department, or was tampered with in
any way.18 Speculation about tampering is an insufficient basis upon which to exclude
the evidence. See Sutherland, 683 P.2d at 1198 (internal citations omitted).
The Court finds that trial counsel’s failure to object to the admission of the rape
kit test results on chain of custody grounds and to call the forensic scientist to testify at
trial did not constitute deficient performance. Sub-claims 3(e), (f) and (g) thus lack
merit and will be dismissed.
d.
sub-claim 3(h)
Applicant asserts in sub-claim 3(h) that trial counsel’s closing argument was
deficient in that counsel did not: proffer a defense theory; point out gaps in the State’s
evidence; or, emphasize inconsistencies in the testimony of prosecution witnesses.
(ECF No. 1, at 27).
17
Id. at 222-23, 230, 237-38.
18
Id., Court File, at 220-224.
24
The defense theory at trial, as stated in the Jury Instructions, was that Applicant
did not kidnap or sexually assault the victim.19 And, contrary to Applicant’s assertions,
trial counsel’s closing argument did point out inconsistencies in the testimony of
prosecution witnesses. Defense counsel also emphasized that the only evidence that
Applicant sexually assaulted the victim was her testimony. Counsel contended that the
victim was not credible because she was an alcoholic who had been drinking at the
time of the alleged sexual assault. Counsel also suggested that the victim made up the
sexual assault to spite the Applicant, who was her on-again-off-again long-term
boyfriend. Trial counsel did not dispute the DNA evidence, but rather maintained that
the evidence was attributable to consensual sex between the victim and the Applicant,
which the victim testified occurred approximately three days before the assault. 20
In his federal Application, Applicant does not allege a different viable defense
theory, and he fails to articulate what specific additional arguments defense counsel
should have made during closing argument that would likely have affected the outcome
of his trial. Accordingly, the Court finds that sub-claim 3(h) is not substantial and,
therefore, the claim will be dismissed.
f.
claim 7
Applicant contends in part of claim 7 that trial counsel was ineffective in failing to
challenge the sufficiency of the evidence supporting the asportation element of the
kidnapping conviction. (ECF No. 1, at 33-35).
19
State Court R., Court File, Jury Instruction No. 20.
20
See generally State Court R., 12/2/05 Trial Tr., at 33-48.
25
Contrary to Applicant’s assertions, trial counsel did challenge the sufficiency of
the evidence to support the kidnapping charge. Counsel moved for a directed verdict at
the close of the prosecution’s case, which was denied by the trial court.21
Further, the evidence at trial was sufficient to support the kidnapping conviction.
Under Colorado law, a person commits second degree kidnapping when he or she
“knowingly seizes and carries any person from one place to another, without his
consent and without lawful jurisdiction.” COLO. REV. STAT. § 18-3-032(1).
“[T]he asportation element of second degree kidnapping is the movement by the
defendant of the victim from one place to another.” People v. Harlan, 8 P.3d 448, 477
(Colo. 2000), overruled on other grounds by People v. Miller, 113 P.3d 743, 748 (Colo.
2005); see also Apodaca v. People, 712 P.2d 467, 475 (Colo.1985) (“The statutory
definition of second degree kidnapping merely requires movement of the victim from
one place to another . . . .”) (internal quotation marks and citation omitted); People v.
Abbott, 690 P.2d 1263, 1270 (Colo.1984) (“The defendant in the present case was
charged with second degree kidnapping, and thus, ‘only movement of the victim from
one place to another was required.’”) (quoting People v. Bridges, 199 Colo. 520, 528 n.
18, 612 P.2d 1110, 1116 n. 18 (1980)) . Where the movement is not substantial, the
prosecution must prove that such movement substantially increased the risk of harm to
the victim. People v. Rogers, 220 P.3d 931, 935 (Colo. App. 2008).
The victim testified that Applicant pulled her out of her car, which was parked on
a public street; pulled her to the corner; dragged her across the street, through some
21
Id. at 230-31.
26
gravel; dragged her into the backyard of a vacant house, and then into the house,
where she was assaulted and sexually assaulted.22 The victim’s testimony about the
injuries she suffered as a result of being dragged by Applicant was corroborated by the
responding law enforcement officer and an examining physician.23
Viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found the asportation element of second degree kidnapping
beyond a reasonable doubt. See Coleman v. Johnson,
U.S.
, 132 S.Ct. 2060,
2064 (2012) (setting forth standard for determining the sufficiency of the evidence, and
quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in the original).
Although the victim’s neighbor testified that after he said good-bye to the victim at
approximately 10:15 p.m. on the night of the kidnapping, he saw the victim and the
Applicant walk down the street together,24 that testimony did not refute the victim’s
statement that Applicant pulled her out of her car at approximately 10:30 p.m. The
Court must “‘accept the jury's resolution of the evidence as long as it is within the
bounds of reason.’” Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting
Grubbs v. Hannigan, 982 F.2d 1483, 1487 (10th Cir. 1993)).
The Court finds that trial counsel’s performance was neither deficient, nor
prejudicial. Claim 7 will be dismissed.
22
State Court R., 11/29/05 Trial Tr., at 141-48.
23
Id. at 171-78, 248; 12/1/05 Trial Tr., at 58-63.
24
Id., 12/1/05 Trial Tr., at 148-150.
27
g.
claim 9
In claim 9, Applicant maintains that trial counsel rendered ineffective assistance
by failing to raise a lack-of-foundation objection to the prosecution expert’s testimony
about the rape kit test results. (ECF No. 1, at 39-40). T his claim is not substantial for
the same reasons the Court rejected sub-claims 3(e), (f) and (g). Claim 9 will be
dismissed.
D.
Ineffective Assistance of Appellate Counsel
Applicant asserts in claim 4 that direct appeal counsel was ineffective in failing to
communicate with Applicant. Applicant maintains, as part of claim 7, that appellate
counsel should have challenged the sufficiency of the evidence to support the
kidnaping conviction. (ECF No. 1, at 28, 33-35).
Claims of ineffective assistance of appellate counsel are governed by the
Strickland standard. See Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003);
Hannon v. Maschner, 845 F.2d 1553, 1558 (10th Cir. 1988). “[A]ppellate counsel who
files a merits brief need not (and should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the likelihood of success on appeal.”
Smith v. Robbins, 528 U.S. 259, 288 (2000). “Indeed, the winnowing out of weaker
arguments so that counsel may focus the court’s attention on those more likely to
prevail ‘is the hallmark of effective advocacy.” Malicoat v. Mullin, 426 F.3d 1241, 1249
(10th Cir. 2005) (quoting Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991)).
Counsel’s failure to raise a meritless issue on direct appeal does not constitute def icient
performance. Cargle, 317 F.3d at 1202.
28
In Linzy II, the Colorado Court of Appeals applied the Strickland standard, see
ECF No. 1, at 87-88, and rejected Applicant’s claims on the following grounds:
Linzy contends that appellate counsel was ineffective in failing to
communicate with him and in failing to raise a sufficiency of the evidence
challenge to his kidnapping conviction. We reject both contentions.
....
Linzy argues that appellate counsel did not consult him or contact
him regarding his appeal. However, he has failed to demonstrate how the
alleged lack of consultation prejudiced his appeal. Linzy also contends
that appellate counsel was ineffective for failing to challenge the
sufficiency of the evidence supporting his kidnapping conviction. However,
Linzy has failed to show meritorious grounds for reversal. Id. Sufficient
evidence in the record, including the victim’s testimony and evidence of
the severe scraping and bruising which experts said resulted from the
victim being dragged to the house where Linzy locked her, supports the
jury’s verdict. See People v. Thornton, 251 P.3d 1147, 1149 (Colo. App.
2010) (“When examining the sufficiency of evidence, we view the
evidence presented as a whole and in the light most favorable to the
prosecution to determine whether the evidence is sufficient to support a
conclusion by a reasonable person that the defendant is guilty beyond a
reasonable doubt.”); see, e.g., People v. Rogers, 220 P.3d 931, 935-36
(Colo. App. 2008) (movement of the victim to a place from where it was
more difficult to escape was sufficient to support kidnapping verdict).
Thus, we conclude Linzy has not shown how he was prejudiced by
appellate counsel’s conduct, and the trial court did not err by failing to hold
an evidentiary hearing.
(ECF No. 1, at 87-89).
In support of his claim that appellate counsel failed to communicate, Mr. Linzy
argued in his state post-conviction proceeding that counsel’s eight-month delay in
notifying him that the Colorado Supreme Court had denied his petition for certiorari
review caused him to file an untimely federal habeas application. (ECF No. 11-6, at 1415). However, Applicant was not prejudiced because the Court has declined to dism iss
29
his federal Application as time-barred. Accordingly, the Court finds that the state
appellate court’s resolution of claim 4 was a reasonable application on Strickland.
As for claim 7, the Colorado Court of Appeals’ determination that the evidence
was sufficient to support the second degree kidnapping conviction is substantiated by
the state court record 25 and comports with the Jackson standard. As such, appellate
counsel’s failure to challenge the sufficiency of the evidence on appeal was not
constitutionally deficient performance. See Cargle, 317 F.3d at 1202.
Claims 4 and 7 will be dismissed.
IV. ORDERS
Accordingly, it is ORDERED:
1.
Applicant Alex Homer Linzy’s Application For a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DENIED and this case is
DISMISSED on the merits.
2.
No certificate of appealability will issue because Applicant has not made a
substantial showing that jurists of reason would find it debatable whether the
jurisdictional and procedural rulings are correct and whether the Application states a
valid claim of the denial of a constitutional right.
Dated October 21, 2014, in Denver, Colorado.
BY THE COURT:
Raymond P. Moore
United States District Judge
25
See State Court R., 11/29/05 Trial Tr., at 141-46, 171-78, 248; 12/1/05 Trial Tr., at 58-63.
30
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