Brown v. Zupan et al

Filing 92

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS. IT IS ORDERED that Applicant Toney L. Brown's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") 1 is DENIED and the civil action is dismissed WI TH PREJUDICE. It is FURTHER ORDERED that each party shall bear his own costs and attorney's fees. It is FURTHER ORDERED that no certificate of appealability will issue because Applicant Toney L. Brown has not made a substantial showing of the denial of a constitutional right, pursuant to 28 U.S.C. § 2253(c). It is FURTHER ORDERED that 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 and therefore in fo rma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24., by Judge William J. Martinez on 3/20/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 14-cv-02218-WJM
TONEY L. BROWN,
Applicant,
v.
DAVID ZUPAN, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on Applicant Toney L. Brown’s Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) (ECF No. 1). 1
Respondents filed an Answer (ECF No. 73) on September 2, 2016. Applicant filed a
Reply (ECF No. 91) on January 24, 2017. After reviewing the pertinent portions of the
record in this case including the Application, the Answer, the Reply, and the state court
record (ECF No. 52), the Court concludes that the Application should be denied.
I. BACKGROUND
The Colorado Court of Appeals’ (CCA’s) order affirming the trial court’s denial of
Applicant’s May 10, 2004 postconviction motion described the background of
Applicant’s criminal proceedings as follows:

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Because Applicant appears pro se, the Court construes his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21(1972). However, the Court does not serve as his
advocate. See Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991).

I. Background
In 1994, defendant was tried and convicted of aggravated robbery,
see §18-4-302, C.R.S. 2006; first degree criminal trespass, see §
18-4-502, C.R.S. 2006; two counts of third degree assault, see §
18-3-204, C.R.S. 2006; false imprisonment, see § 18-3-303, C.R.S. 2006;
and two habitual criminal counts, see § 18-1.3-803, C.R.S. 2006. He
appealed, and another division of this court vacated his judgment of
conviction and remanded the case for a new trial. People v. Brown, (Colo.
App. No. 95CA0177, Mar. 6, 1997) (not published pursuant to C.A.R.
35(f)).
In 1998, defendant was appointed new counsel, and a second trial
was conducted. Just before his second trial, defendant moved for the
appointment of conflict-free counsel. He alleged that Jonathan Bley, his
attorney during the first trial, provided him with ineffective assistance by,
among other things, failing to secure a 911 tape before it was destroyed.
He further alleged that Bley had worked in the Adams County Public
Defender’s Office with Robert Pepin, counsel for his second trial, and that
Pepin had been Bley's supervisor. At the time of defendant’s second trial,
Pepin was no longer a public defender. Defendant alleged Pepin had a
conflict of interest because he had been Bley's supervisor and had been
affiliated with the Adams County Public Defender’s Office. The trial court
denied defendant’s motion.
At his second trial, defendant was convicted of aggravated robbery,
first degree criminal trespass, two counts of third degree assault, false
imprisonment, and two habitual criminal counts.
After being convicted a second time, defendant moved for a new
trial based upon Pepin’s alleged conflict of interest. The trial court denied
defendant’s motion. In February 1999, defendant filed a postconviction
motion to vacate and correct his illegal sentence and another motion
requesting a new trial and oral argument, both asserting the same conflict
of interest issue. The trial court denied defendant’s motions.
Defendant appealed, again arguing that Pepin had a conflict of
interest. Another division of this court affirmed his convictions, concluding
that Pepin had no conflict of interest when he represented defendant
during retrial. People v. Brown, (Colo. App. No. 99CA0542 Apr. 4, 2002)
(not published pursuant to C.A.R. 35(f)) (Brown II). That division also
vacated defendant’s sentence because the trial court considered
unconstitutional prior South Carolina convictions when sentencing him. It
remanded the case for resentencing. The mandate issued on December
6, 2002.
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Following remand, defendant filed another postconviction motion,
again asserting that Pepin had a conflict of interest. On December 19,
2002, the trial court denied defendant’s motion as successive.
In February 2003, defendant filed a timely pro se notice of appeal
of the trial court’s December 19, 2002 order. See C.A.R. 25(b). At that
time, he had not yet been resentenced, and he requested that the case be
transferred to a different judge for resentencing. His request was
granted, and the case reassigned.
On September 24, 2003, [the CCA] remanded the case to the trial
court “for the purpose of the resentencing proceedings, and re-entry of
any order entered after December 19, 2002, with jurisdiction.”
On May 10, 2004, while the case was still on limited remand,
defendant filed another motion for postconviction relief arguing again that
Pepin had a conflict of interest. The district court judge to whom the case
had been reassigned conducted a hearing and denied defendant’s
motion.
On June 21, 2004, the court sentenced def endant to consecutive
terms of thirty-five years on the aggravated robbery count and eight years
on the criminal trespass count. The court merged the third degree assault
charges with the aggravated robbery count. Defendant also received six
months in county jail on the false imprisonment charge. Following
resentencing, defendant’s February 2003 notice of appeal was recertified,
and [an] appeal followed.
People of the State of Colo. v. Brown, No. 03CA0316, 1-4 (Colo. App. May 24, 2007);
ECF No. 25-9 at 2-5. The trial court’s denial of the May 10, 2004 postconviction motion
and of Applicant’s aggravated sentence claim was affirmed on appeal. ECF No. 25-9 at
15. Applicant also filed another postconviction motion in 2008, which does not relate to
the two remaining claims that are before the Court on the merits.
Applicant initiated this action by submitting an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 to this Court on Aug ust 8, 2014, raising nineteen
claims overall. The Court conducted a preliminary review of the claims and dismissed
all but Claims Two and Three. See ECF No. 62. The remaining claims are as follows:
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(1) Claim Two-Ineffective assistance of counsel (Jonathan Bley) at first
trial for failure to preserve the 911 recordings in violation of the Sixth
Amendment; and
(2) Claim Three-Denial of right to conflict-free counsel (Robert Pepin) in
second trial in violation of the Sixth and Fourteenth Amendments.
II. LEGAL STANDARDS
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). 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 (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. (collecting
cases). Thus, “[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.” Id. at 99. “Where there has been one reasoned state judgment rejecting a
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federal claim,” federal habeas courts should presume that “later unexplained orders
upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst
v. Nunnemaker, 501 U.S. 797, 803 (1991).
Even “[w]here a state court’s decision is unaccompanied by an explanation, the
habeas petitioner’s burden still must be met by showing there was no reasonable basis
for the state court to deny relief.” Richter, 562 U.S. 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.
“This ‘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 a court must answer under § 2254(d)(1) is whether
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,

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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 my 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,
120 S. Ct. 1495) (citation omitted). “The word ‘contrary’ is commonly
understood to mean ‘diametrically different,’ ‘opposite in character or
nature,’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405, 120 S. Ct.
1495 (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, 120 S. Ct. 1495.
House, 527 F.3d at 1018.
My 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

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‘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. The Supreme Court has also stated:
[E]valuating 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. at 102. In addition, “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (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 102 (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, 562 U.S. at 103.

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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 a 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 m ust
presume that the state court’s factual determinations are correct and Applicant 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)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal
law.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a
structural defect in the trial that defies harmless-error analysis, [the Court] must apply
the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.;
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious ef fect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “[A] ‘substantial and injurious ef fect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.”
Bland, 459 F.3d at 1009 (citing O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave
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doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual
equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435.
The Court makes this harmless error determination based upon a thorough
review of the state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th
Cir. 2000). “In sum, a prisoner who seeks federal habeas corpus relief must satisfy
Brecht, and if the state court adjudicated his claim on the merits, the Brecht test
subsumes the limitations imposed by AEDPA.” Davis v. Ayala, --- U.S. ---, 135 S. Ct.
2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
Cir. 2004).
III. DISCUSSION
A. Claim Two
In Claim Two, Applicant asserts that he and Mr. Bley, his assigned public
defender, had several discussions regarding the evidence, which included the 911
recordings as it related to Officer Meyers’ identification. ECF No. 1 at 12. Applicant
further asserts that he was deprived of critical exculpatory evidence when Mr. Bley
failed to file a motion with the court to preserve the 911 recordings. Id.
In the Reply, Applicant asserts that on April 28, 1993, Mr. Bley was appointed to
represent him, and on or about May 17, 1993, Applicant appeared before the court in a
preliminary hearing. ECF No. 91 at 4. Applicant also asserts that, af ter he learned he
could not serve with Mr. Bley as co-counsel, he opted to proceed pro se. Id. Applicant
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further asserts that on May 23, 1993, he filed a request for discovery, including a
request for the 911 recordings, but the court took no action; also at this tim e the court
appointed Mr. Joachim as advisory counsel. Id.
Applicant also argues in the Reply it was unreasonable that Mr. Bley did not
preserve the 911 recording during the “fifteen days” that he represented Applicant. Id.
at 28. Applicant contends that in some cases video and audio recordings are routinely
destroyed within twenty-four hours. Id. Applicant further contends a criminal defendant
has the right to effective assistance of counsel, and counsel should take the initial steps
to “protect the client’s interests,” which includes securing evidence well before the
preliminary hearing. Id. at 28.
Respondents argue in the Answer, for the first time, that Claim Two is
procedurally defaulted in state court and, therefore, barred from federal habeas review.
ECF No. 73 at 31-33.
“[S]tate-court procedural default . . . is an affirmative defense,” and the state is
“obligated to raise procedural default as a defense or lose the right to assert the
defense thereafter.” See Gray v. Netherland, 518 U.S. 152, 165-66 (1996). In the
Order to File Pre-Answer Response, the Court instructed Respondents to address the
affirmative defense of exhaustion of state court remedies. ECF No. 14. The Court also
directed Respondents that if they did not intend to raise exhaustion as an affirmative
defense they must notify the Court. Id. Respondents stated in the Pre-Answer
Response that Applicant had preserved Claims Two and Three. ECF No. 25 at 33-34.
The “best procedure is to plead an affirmative defense in an answer or amended
answer.” See Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006) (f inding
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defendants were not necessarily barred from raising a qualified immunity defense in
their motion for summary judgment). A constructive amendment is allowed if there is
no prejudice to the opposing party and the amendment is not unduly delayed, done in
bad faith, or with a dilatory motive. Id.
Respondents assert no basis in the Answer for failing to raise the procedural
default argument in their Pre-Answer Response. Respondents, however in the Answer,
relying on People v. Rodriquez, 914 P.2d 230, 249 (Colo. 1996) (quoting People v.
Bastardo, 646 P.2d 382, 383 (Colo. 1982)), assert that “an arg ument raised under Rule
35 which does not precisely duplicate an issue raised on appeal will be precluded if its
review ‘would be nothing more than a second appeal addressing the same issues on
some recently contrived constitutional theory.’ ” ECF No. 73 at 32. Respondents,
therefore, conclude that Applicant’s challenge to Mr. Bley’s representation in the
opening brief of the direct appeal of the second trial was properly precluded as
successive in Applicant’s first postconviction motion, because the same claim was
raised on a different constitutional ground on direct appeal. Id.
Applicant argues that his conflict-free claim asserted against Mr. Pepin was
based only in part on Mr. Bley’s ineffective assistance of counsel. ECF No. 91 at 38.
Applicant further argues that the Bley ineffective assistance claim is not the same claim
as the Pepin conflict of interest claim and could not have been raised in his direct
appeal and the claim was not subject to a successive bar. Id. at 38-39.
For the reasons stated below, the Court finds that the Bley ineffective assistance
of counsel claim is not necessarily successive based on how Applicant presented the
claim in the direct appeal and the CCA’s analysis.
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Applicant identified his claim on direct appeal as a denial of his right to conflictfree counsel at trial. ECF No. 25-4 at 2 (Opening Brief in direct appeal of conviction
and sentence in retrial, Case No. 99CA542 (ECF No. 25-5 at 7). Applicant identif ied
the conflict was with Mr. Pepin because he supervised Mr. Bley at the public defender’s
office, when Mr. Bley failed to preserve the 911 recordings while he was representing
Applicant. Id. at 13. Applicant also asserted in the opening brief in Case No. 99CA542
that if he was prejudiced during his first trial by Mr. Bley’s ineffective assistance of
counsel then he had a conflict with Mr. Bley and the conflict would be imputed to Mr.
Pepin, Mr. Bley’s supervisor. ECF No. 25-4 at 12 Applicant further asserts that if he
had an ineffective assistance of counsel claim against Mr. Bley for failing to preserve
the 911 tapes, or for other similar reasons, the claims are not mooted by the second
trial and the claim could still be raised after the conclusion of the direct appeal in the
second trial. Id.
The CCA addressed and denied Applicant’s conf lict-free counsel claim based
only on an imputed conflict analysis. ECF No. 25-5 at 3-7. The Bley ineffective
assistance claim was not addressed on the merits by the CCA in either the direct
appeal or postconviction motion appeal. A review of this claim, therefore, is subject to
de novo review and the deferential standards of § 2254(d) do not apply. See Gipson,
376 F.3d at 1196. The Court, therefore, will proceed to the merits of Claim Two and
deny the claim for the reasons stated below.
It was clearly established when Applicant was convicted that a defendant has a
right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668
(1984). To establish that counsel was ineffective, Applicant must demonstrate both that
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counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. See id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “A
court considering a claim of ineffective assistance must apply a ‘strong presumption’
that counsel’s representation was within a ‘wide range’ of reasonable professional
assistance.” United States v. Rushin, 642 F.3d 1299, 1306 (10th Cir. 2011) (quoting
Richter, 562 U.S. at 104 (citation omitted). It is an applicant’s burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances, see Strickland, 466 U.S. at 689, and that the errors were so serious that
“counsel was not functioning as the ‘counsel guaranteed the defendant by the Sixth
Amendment.’ ” Rushin, 642 F.3d at 1307 (quoting Richter, 562 U.S. at 104) (emphasis
and citation omitted). An applicant must show counsel failed to act “reasonably
considering all the circumstances.” Pinholster, 563 U.S. at 189 (quoting Strickland, 466
U.S. at 688).
Under the prejudice prong, an applicant must establish a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. In assessing prejudice under
Strickland the question is whether it is reasonably likely the result would have been
different. Richter, 562 U.S. at 111. “The likelihood of a different result must be
substantial, not just conceivable.” Id. at 112 (citing Strickland, 466 U.S. at 693).
Furthermore, under AEDPA, “[t]he pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This is different from asking
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whether defense counsel’s performance fell below Strickland’s standard,” which is the
question asked on direct review of a criminal conviction in a United States district court.
Richter, 562 U.S. at 101. “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. at 105.
If Applicant fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claim must be dismissed. See Strickland 466 U.S. at 697. Also,
ineffective assistance of counsel claims are mixed questions of law and fact. See id. at
698. Pursuant to § 2254(e)(1), the factual findings of the state courts are presumed
correct, and Applicant bears the burden of rebutting this presumption by clear and
convincing evidence.
The Court is not persuaded by Applicant’s argument that because Mr. Bley failed
to preserve the 911 recordings during the time Mr. Bley represented Applicant, from
sometime between April 26 and 28, 1993, 2 when he first consulted with Mr. Bley, to May
17, 1993, 3 when he withdrew pursuant to Applicant’s request, he violated Applicant’s
right to effective assistance of counsel. ECF No. 91 at 4.
Applicant contends he requested within days of his arrest that Mr. Bley preserve
the 911 recordings, which was at a critical post arrest stage of the prosecution, and

2

According to the court file, it appears that Mr. Bley may have had his first contact
with Applicant on April 27, 1993. Mr. Bley signed an application for court-appointed counsel on
April 27 that recommends Applicant should be appointed counsel. See Case No. 93CR964
Court File, Vol.1 at 3.
3

Applicant asserts that on or about May 17, 1993, he appeared at a preliminary
hearing. A review of the state court transcripts indicates that the hearing was held on May 19,
1993. May 19, 1993 Pre-trial Hr’g at 2.

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three days after the preliminary hearing. Id. at 27-28. Applicant further contends that a
defense attorney has a duty to preserve all evidence at the onset of arrest, which he
knew, or should have known, that “litigation is imminent.” Id. at 29.
“[T]here is no precise formula,” but “an attorney fulfills the requirement to
conduct a reasonable investigation when he [ ] spends time consulting with the
defendant,” and “files any necessary discovery and pretrial motions.” United States v.
Medlock, 645 F. App’x 810, 815 (10th Cir. 2016) (citing United States v. Rivera, 900
F.2d 1462 (10th Cir. 1990); Denton v. Ricketts, 791 F.2d 824 (10th Cir. 1986)). As
stated above, Applicant concedes that Mr. Bley spent time with him and, possibly as
early as April 26, 1993, discussed with Applicant the need to preserve the 911
recording.
Pursuant to the state court file, the first request filed by Applicant for the 911
recording of Officer Nate Myers was on July 13, 1993. See Case No. 93CR962 Court
File Vol. 1 at 59-60. The request of the 911 recordings was one of many discovery
requests that Applicant filed on July 13. There are no other motions or requests for the
911 recordings submitted by Applicant prior to July 13, 1993, in the state court file. At
the September 3, 1993 pretrial hearing, while addressing Applicant’s motions for
discovery, the prosecution stated that the “dispatch” and “radio traf fic” tapes were not
available because they are destroyed after sixty days. Sept. 3, 1993 Pretrial Hr’g at 3.
Applicant must demonstrate that Mr. Bley’s representation fell below an objective
standard of reasonableness. Strickland, 466 U.S. at 687. Applicant argues it was
unreasonable that, during the time from possibly April 26, 1993, when he first met with
Mr. Bley, (State court record indicates April 27, 1993), until May 17, 1993, (State court
15

record indicates May 19, 1993 was the date of the preliminary hearing), when Applicant
during the preliminary hearing asked to proceed pro se, at most twenty-two days, Mr.
Bley did not preserve any 911 recordings. The Court finds that on May 19, 1993, when
Applicant asked to proceed pro se, there was still thirty-six days remaining to preserve
the recordings,4 the Court does not find it was unreasonable for Mr. Bley not to have
preserved the 911 recordings at the time of the May 19 hearing.
Even if Applicant attempted to contact Mr. Bley about the recordings after he no
longer represented Applicant, and Mr. Bley did not respond, since Mr. Bley no longer
represented Applicant the lack of a response does not state a claim of ineffective
assistance of counsel. Any unsuccessful attempt by Applicant to preserve the
recordings after Mr. Bley was dismissed as Applicant’s attorney does not support a
finding that Mr. Bley was ineffective. Furthermore, advisory counsel was appointed at
the preliminary hearing. Applicant had the ability to consult with advisory counsel if
needed about how to preserve the recordings and sufficient time to preserve the
recordings. Applicant’s alleged failure to obtain the recordings does not impute Mr.
Bley’s ineffectiveness.
Also, even if Mr. Bley’s failure to preserve the tapes fell below an objective
standard of reasonableness, Applicant has failed to assert how he was prejudiced by
Mr. Bley’s failure to preserve. Applicant only speculates as to what information would
be obtained from the recordings. Furthermore, during Officer Meyers’ cross-

4

Based on the prosecution’s statement at the September 3, 1993 pretrial hearing,
Applicant had sixty days from April 25, 1993, when the offense took place to preserve the 911
recordings. The recordings would not have been scheduled for destruction until June 24, 1993.

16

examination, redirect, and voir dire by Applicant’s attorney, the discrepancy of Officer
Meyers’ description of Applicant was at issue and brought into question based on
Officer Meyers’ previous testimony at a motions hearing. Oct. 18, 1994 Trial Tr. at 10306. The photo that was taken of Applicant when he was booked in at the Northglenn
Police Department was used to show that Officer Meyers’ testimony regarding
Applicant’s lack of facial hair was incorrect. Id.
Because Applicant was able to discredit Officer Meyers’ testimony without the
recordings, and because it is highly speculative that the 911 recordings would have
provided critical exculpatory evidence, the Court finds that Applicant has failed to
present clear and convincing evidence that demonstrates it is reasonably likely the
result of his trial would have been different had Mr. Bley preserved the 911 recordings.
Richter, 562 U.S. at 111. Applicant, therefore, was not prejudiced by Mr. Bley not
preserving the recordings before he was dismissed as Applicant’s attorney.
Based on the above findings, Claim Two will be dismissed.
The Court also notes that in the Reply Applicant raises at least five additional
claims: (1) denial of “hybrid representation”; (2) an “erroneous waiver of the right to
counsel at the preliminary hearing”; (3) right to counsel of preference; (4) a due process
violation by the prosecution’s destruction of the 911 recordings; and (5) ineffective
assistance of appellate counsel. ECF No. 91 at 7-10, 42, and 46. T hese claims either
were not raised in the § 2254 Application f iled by Applicant or were dismissed as
procedurally defaulted previously in this action.
The Court need not address claims that are raised for the first time in a reply
brief. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir., 2002) (citing Codner
17

v. United States, 17 F.3d 1331, 1332 n. 2 (10th Cir. 1994); Lyons v. Jefferson Bank &
Trust, 994 F.2d 716, 724 (10th Cir. 1993)). If claims are inappropriately raised pursuant
to Mora, they most likely are barred from federal habeas review either as time-barred
under 28 U.S.C. § 2244(d) or unexhausted and procedurally barred pursuant to Steele
v. Young, 11 F.3d 1518, 1521 (10th Cir. 1993) (citations om itted). At the very least,
claims raised for the first time in the Reply do not relate back to Applicant’s original
Application filed on August 8, 2014, and consequently are successive and improperly
before the Court for lack of jurisdiction.
B. Claim Three
In Claim Three, Applicant asserts that on remand for new trial Mr. Pepin was
appointed to represent him. ECF No. 1 at 14. He further asserts that Mr. Pepin had
supervised Mr. Bley and Mr. Evans, Adams County public defenders, during Applicant’s
first trial proceedings. Id. Applicant contends that prior to the preliminary hearing in his
first trial he had “significant disagreements” with Mr. Bley regarding the evidence to be
presented and possible witnesses. Id. at 13. Applicant further contends that because
he could not proceed as co-counsel with Mr. Bley, Mr. Bley withdrew as counsel. Id.
Applicant also contends that Mr. Evans represented Scott Bruce, who was an endorsed
witness in Applicant’s trials and who received a favorable plea agreement to testify
against Applicant. Id. Applicant further asserts that the court held a hearing regarding
the alleged conflict but found no need to investigate as no conflict existed. Id. at 14.
In the Reply, Applicant restates his claims as follows. He asserts that Mr.
Pepin’s failure to insure the “confidentiality of imputed information between the other
members of his firm, and between individual clients,” resulted in confidential
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information, which should have been known only by Mr. Pepin and Mr. Bley, being used
by Mr. Evans to obtain a favorable plea agreement for Mr. Bruce. ECF No. 91 at 17.
Applicant further contends that there was a strong showing that client-attorney
information from his prior representation by the public defenders was passed on by Mr.
Bley to Mr. Pepin and Mr. Evans. Id. Applicant also contends that Mr. Pepin’s
termination from the public defender’s office in May 1993 did not dissolve the conflict.
Id. at 18. Applicant further contends that Mr. Pepin’s imputed information about the
cross-examinations of two witnesses, and his instruction to Mr. Bley that he could not
participate in being co-counsel with Applicant in his first trial resulted in Mr. Pepin’s
conflict. Id. at 19.
The CCA addressed the conflict issues as follows:
Defendant contends that, because the public def ender’s office had
a conflict of interest, the conflict must be imputed to defense counsel, and
therefore, the trial court erred in denying his motion for conflict-free
counsel. Specifically, he asserts an imputed conflict on two grounds: (1)
the first deputy public defender provided ineffective assistance; and (2)
the previously adjudicated conflict arising from the public defender’s
representation of a witness who testified against defendant. We disagree.
The United States and Colorado constitutions guarantee an
accused in a criminal prosecution the right to effective assistance of
counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. This
right may be violated by representation that is intrinsically improper
because of a conflict of interest. People v. Castro, 657 P.2d 932 (Colo.
1983).
“In general, a conflict of interest exists when: (1) an attorney’s
representation of one client is directly adverse to another client, (2) when
the attorney’s ability to represent a client is materially limited by the
attorney's responsibility to another client or to a third person, or by the
attorney's own interests.” People v. Edebohls, 944 P.2d 552, 556 (Colo.
App. 1996); See Colo. RPC 1.7(a), (b).

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While lawyers are associated in a firm, none of them shall
knowingly represent a client when any one of them practicing alone would
be prohibited from doing so by Colorado Rules of Professional Conduct.
This is known as the “rule of imputed disqualification.” People ex rel.
Peters v. District Court, 951 P.2d 926, 930 (Colo. 1998).
A motion to discharge an attorney based on a conflict of interest is
addressed to the sound discretion of the trial court, whose decision will
not be reversed unless clear error or abuse of discretion is shown.
People ex rel. Peters v. District Court, supra; McCall v. District Court, 783
P.2d 1223 (Colo. 1989).
A.
Defendant argues that the first deputy public defender provided
ineffective assistance of counsel by failing to obtain certain evidence
during the fifteen days of representation in May 1993. Therefore, he
argues, he has a conflict with the public defender’s office. He further
argues that this conflict is imputable to defense counsel because he was
the head of the local public defender’s office during that fifteen day period.
However, after a hearing on the issue, the trial court found that any
conflict that existed with respect to the first deputy public defender was
not imputable to defense counsel. The trial court’s determination is
supported by the record, and therefore, we reject defendant’s argument.
While it may be true that no public defender could represent
defendant regarding his claim that he did not receive effective assistance,
defense counsel was not similarly conflicted because he had severed his
ties with the public defender’s office more than four years before he
represented defendant.
The record reveals the following facts that support the trial court’s
conclusion. The overlapping period of the public defender’s
representation of defendant and defense counsel’s employment with that
office was only fifteen days at the very beginning of the case, before the
preliminary hearing. The record does not show action of any
consequence during that time period. Although defense counsel was the
head of the local public defender’s office, defendant did not allege and the
record does not show that defense counsel had any personal involvement
in or knowledge of the public defender’s representation of defendant at
that time. Further, defendant did not allege and the record does not show
that defense counsel has any personal, professional, or financial
relationship with the public defender’s office that would limit his ability to
represent the defendant.

20

A contrary conclusion is not compelled by McCall v. District Court,
supra. There, a conflict of interest was imputed to a deputy public
defender who represented a defendant who was alleging that another
deputy public defender had provided ineffective assistance of counsel.
The supreme court applied the imputed disqualification rule to the public
defender’s office and held that a conflict of interest existed in that case.
The situation here is distinguishable from McCall because here defense
counsel was not a current member of the public defender’s office and had
not been for more than four years.
The McCall court also explained that members of the appellate
division of the state public defender’s office are precluded from arguing
that a local deputy public defender rendered ineffective assistance of
counsel because to do so would have
[a]n inherently deleterious effect on relationships within the
public defender system and would be destructive of an office
upon which the criminal justice system relies to provide
competent legal services to indigent defendants. Moreover,
notwithstanding the vigor and skill with which the appellate
division attorney might present the ineffective assistance of
counsel argument, the conflict of loyalties inherent in the
attorney’s role would make the quality of his or her
representation, and thus the fairness and impartiality of the
appellate process, necessarily suspect in the public eye.
McCall v. District Court, supra, 783 P.2d at 1228.
However, such concerns are not applicable where, as here, a
private attorney, who is a former member of the public defender’s office,
represents a defendant who is asserting a claim of ineffective assistance
by the public defender’s office.
B.
Defendant also argues that the conflict of interest of the public
defender’s office based on its representation of a witness who testified
against him should also be imputed to defense counsel. We disagree.
At the hearing on defendant’s motion, defense counsel informed
the court that he had resigned from the public defender’s office on July
31, 1993, and the prosecutor informed the court that the public defender’s
representation of the witness did not begin until September 1993. Neither
side disputed these assertions, and the trial court relied upon both
statements. Thus, the record discloses that defense counsel had
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resigned from the public defender’s office before it represented the
witness. Defendant has cited no authority, and we are aware of none,
that would impute this conflict to defense counsel.
Under these circumstances, we conclude that the trial court
properly declined to impute a conflict of interest to defense counsel.
People of the State of Colo. v. Brown (Brown II), No. 99CA542, 2-7 (Colo. App. Apr. 4,
2002) ECF No. 25-5 at 3-8.
The CCA also addressed the conflict of interest issue in Applicant’s appeal of his
May 10, 2004 postconviction motion as follows:
II. Ineffective Assistance and Conflict of Interest
Defendant contends that the trial court erred denying his motion for
postconviction relief based upon findings in its June 2004 order that Bley
did not render ineffective assistance and that Pepin did not have a conflict
of interest. We disagree.
A. Jurisdiction
Initially, we note that the People argue that the trial court lacked
jurisdiction to conduct a hearing on defendant’s May 2004 motion for
postconviction relief and, thus, to deny that motion. We will assume,
without deciding, that the trial court had jurisdiction, and determine
whether it properly denied defendant’s motion.
B. Claims Raised in Prior Appeal
Defendant argues that the trial court erred in failing to find that
Pepin had a conflict of interest and provided ineffective assistance of
counsel based upon his past employment with the public defender's
office. We are not persuaded.
A “court shall deny” a petition for postconviction relief that raises
claims that have already been ruled on in a prior postconviction
proceeding or appeal. Crim. P. 35(c)(3)(VI); see also People v. Abeyta,
923 P.2d 318, 320 (Colo. App. 1996) (noting that the rule “indicates that
there must be some finality in the reviewing process”). Thus, a trial court
does not err in denying a defendant’s motion for postconviction relief
when the alleged ineffective assistance rests upon errors that “have been
reviewed and found to be without merit.” People v. Fitzgerald, 973 P.2d
708, 712 (Colo. App. 1998).
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Here, defendant again raises issues that have been reviewed and
found to be without merit by a division of this court in his 2002 appeal.
There he argued that Bley provided ineffective assistance of counsel by
failing to procure the 911 tape, and that Pepin had a conf lict of interest
because he was employed with the public defender’s office as Bley’s
supervisor at the time of Bley’s alleged ineffective assistance. Brown II,
supra. Defendant also argued that the public defender’s office’s conflict of
interest, based upon its representation of a witness adverse to him,
should be imputed to Pepin. Brown II, supra. Defendant raised those
claims in the context of a direct appeal, rather than an appeal f rom the
trial court’s denial of a Crim. P. 35(c) motion. However, there is no
indication that he was not allowed to fully litigate his claims. Brown II,
supra. That division concluded that defendant’s arguments lacked merit.
Specifically, it concluded that Pepin did not have a conflict of interest,
imputed or otherwise, because he acted as Bley’s supervisor, or because
he had been employed by the public defender’s office. Brown II, supra.
Because the Brown II division considered and rejected defendant’s
identical arguments, the trial court did not err in denying defendant’s
motion for postconviction relief with respect to those arguments. See
Fitzgerald, supra, 973 P.2d at 712. And because the trial court properly
denied defendant’s motion with respect to these claims, we need not
consider defendant’s specific allegations of error. See People v. Valdez,
789 P.2d 406, 407 (Colo. 1990) (affirming trial court’s findings regarding
ineffective assistance for different reasons than those relied upon by the
trial court).
See People of the State of Colo. v. Brow n, No. 03CA0316, 4-7 (Colo. App. May 24,
2007); ECF No. 25-9 at 5-8.
A criminal defendant has a constitutional right to representation by an attorney
that is free from conflicts of interest. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
In order to prevail on a claim that an attorney was ineffective because of a conflict of
interest, Applicant must show both that his trial attorney actively represented conflicting
interests and that the conflict of interest adversely affected his attorney’s performance.
See id. Applicant’s Sixth Amendment right to effective assistance of counsel is rooted

23

in “the fundamental right to a fair trial,” Strickland, 466 U.S. at 684, which includes the
right to conflict-free representation, Cuyler, 446 U.S. at 350.
As stated above, to prevail on an ineffective assistance of counsel claim,
Applicant must show that his attorney’s performance was deficient and that he was
prejudiced as a result. Strickland, 466 U.S. at 687. Where a criminal defendant must
affirmatively prove prejudice to succeed on an actual ineffectiveness claim based on
deficient performance, id. at 693, “prejudice is presumed when counsel is burdened by
an actual conflict of interest.” Id. at 692. The Supreme Court has explained, however,
that this is not a “per se rule of prejudice.” Id. Instead, “[p]rejudice is presumed only if
the defendant demonstrates that counsel ‘actively represented conflicting interests’ and
that ‘an actual conflict of interest adversely affected his lawyer's performance.’ ” Id.
(quoting Cuyler, 446 U.S. at 350).
Applicant’s conflict of interest claims are speculative regarding any discussion
Mr. Pepin may have had with Mr. Bley, and with Mr. Evans, who represented a witness
from Applicant’s trials in a later criminal proceeding. Even if the Court were to find that
Mr. Bley talked with Mr. Pepin at the time of Applicant’s first trial, and also supervised
Mr. Evans, these findings alone do not establish a conflict of interest. Furthermore,
nothing Applicant presents demonstrates that any alleged contact by Mr. Pepin with Mr.
Bley and Mr. Evans affected Mr. Pepin’s performance in Applicant’s second trial.
The factual findings relied on by the trial court are presumed correct in this
federal habeas proceeding, and have been found by the Court to be supported by the
state court record. See Case No. 93CR964 Court File Vol. 4 at 117-18 (Mot. Dism.
Counsel, Sept. 10, 1998); Sept. 11, 1998 Hr’g Tr.; Court File Vol. 4 at 174-79 and 18324

88 (Mots. New Trial and Oral Argument, Oct. 5 and 13, 1998); Court File Vo. 4 at 21011 (Motion Dism. Counsel, New trial and Appeal, Dec. 18, 1998); Dec. 30, 199 8, New
Trial Hr’g Tr.; Case File Vol. 6 at 37-56 (Aug. 12, 2001 postconviction motion); Court
File Vol. 7 at 15-27 (Jan. 24, 2003 postconviction motion); May 21, 2004 Postconviction
Hr’g Tr.
Applicant did not complain at his preliminary hearing held on May 19, 1993, that
Mr. Bley was ineffective. May 19, 1993 Prelim. Hr’g Tr. After the court determined that
Mr. Bley, a public defender, was prohibited statutorily from proceeding as advisory
counsel, Applicant agreed with the court that the reason he wanted to proceed pro se
was because the court would not permit both Mr. Bley and Applicant to question
witnesses at the preliminary hearing. Id. at 7. Only later, when he filed motions to
dismiss, and at the hearing for a new trial, after the conclusion of the second trial, does
Applicant assert that Mr. Bley did not preserve the 911 transcripts, which were
subsequently destroyed. Dec. 30, 1998 New Trial Hr’g Tr. at 9. Applicant further stated
at the hearing for a new trial that Mr. Bley failed to (1) “cross-examine” witnesses before
the preliminary hearing; (2) do a trace on the mask for hair fibers; (3) to make some sort
of identification of the robber; and (4) raise the issue about Bruce Scott. Id. at 9-10.
Applicant also stated that he called Mr. Bley’s office, but Mr. Bley was never there, and
whoever answered the telephone said they would give the message to Mr. Bley’s
supervisor. Id. at 11. Applicant, however, further asserted that he never talked with
Mr. Pepin, when Mr. Bley represented Applicant. Id. Applicant also asserted Mr. Bley
stated at a particular hearing that he would have to talk with his supervisor about
participating as advisory counsel. Id.
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The trial court found at the December 30 hearing that the earliest Mr. Bley was in
contact with Applicant was on or about April 28, 1993, and two weeks later on May 19,
1993, a preliminary hearing was conducted, at which Applicant moved to proceed pro
se. Id. at 12-13. The trial court determined that at the most there was a disagreement
about how the case should be handled and what investigations should be conducted,
but no allegations of a conflict of interest, and, therefore, no support for finding Mr.
Pepin should have been disqualified from representing Applicant. Id. at 13.
Mr. Pepin testified at the postconviction hearing. May 21, 2004 Postconviction
Hr’g Tr. at 18-69. During cross-examination, Mr. Pepin testified that (1) he did not recall
a conversation with Mr. Bley regarding the 911 recordings; (2) no agency at the time of
the preliminary hearing would destroy recordings less than thirty days; (3) not
necessarily is a request to preserve the recordings done prior to a preliminary hearing;
and (4) Mr. Bley would not have been able to preserve the tape once he no longer
represented Applicant. Id. at 25 and 28-29.
Finally, Mr. Pepin testified that he did not use Mr. Bruce’s plea agreement in his
cross of Mr. Bruce, because Mr. Pepin wanted Mr. Bruce to be perceived by the jury as
a believable witness. Id. at 38. Mr. Bruce had not described the robber as hav ing a
beard and testified he had punched Applicant twice in the face, with one of the punches
causing the robber to drop to his knees. Id. at 37. Mr. Pepin testified that the strategy
was to demonstrate to the jury that Applicant could not have been the robber, because
he had a beard at the time of the robbery and the injuries identified on his face were not
conducive to the punches Mr. Bruce stated he had given to Applicant. Id.

26

Applicant, therefore, does not point to any clear and convincing evidence that Mr.
Pepin had a conflict of interest. Applicant does not demonstrate how the alleged basis
for the conflicts affected his relationship with Mr. Pepin and resulted in Mr. Pepin being
ineffective in his representation of Applicant in the second trial. The Court’s review of
the state court record reveals that a sound strategy existed for Mr. Pepin to not crossexamine Mr. Bruce about the favorable plea agreement he received when Mr. Evans
represented him in his own criminal proceeding. The Court also finds that given (1) the
short duration of time Mr. Bley represented Applicant; (2) Applicant’s stated desire to
proceed pro se; and (3) the length of time Applicant had to obtain the 911 recordings
before they were destroyed there would be no basis for finding ineffective assistance of
counsel by Mr. Bley that could be imputed to Mr. Pepin during the time he was Mr.
Bley’s supervisor at the public defender’s office. Based on these findings, Mr. Pepin did
not have actively conflicting interests that adversely affected his performance.
The CCA decision regarding Claim Three, therefore, did not result in a decision
that was contrary to, or involve an unreasonable application of clearly established
Federal law, as determined by the Supreme Court of the United States, and did not
result in a decision that was based on an unreasonable determination of the facts.
Claim Three will be dismissed on the merits.
IV. CONCLUSION
Accordingly, it is ORDERED that Applicant Toney L. Brown’s Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Application”) (ECF No. 1) is
DENIED and the civil action is dismissed WITH PREJUDICE. It is

27

FURTHER ORDERED that each party shall bear his own costs and attorney’s
fees. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant Toney L. Brown has not made a substantial showing of the denial of a
constitutional right, pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that 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 and therefore in forma
pauperis status is denied for the purpose of appeal. See Coppedge v. United States,
369 U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Dated this 20th day of March, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

28