Brooks v. Archuletta et al

Filing 31

ORDER by Magistrate Judge Craig B. Shaffer on 05/14/15 denying 1 Application for Writ of Habeas Corpus and dismissing this case with prejudice and denying 25 Motion for Leave to file Amended Complaint. ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c).(nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Craig B. Shaffer

Civil Action No. 14-cv-02276-CBS
JASON BROOKS,
Applicant,
v.
LOU ARCHULETA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

This case is before this Court pursuant to the Order of Reference entered
February 9, 2015, and the parties’ unanimous consent to disposition of this action by a
United States Magistrate Judge.
Applicant Jason Brooks is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Brooks has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (“the Application”). Respondents have filed
an Answer to Application for Writ of Habeas Corpus (ECF No. 27) (“the Answer”) and
Mr. Brooks has filed a traverse (ECF No. 29) (“the Traverse”) and a supplement (ECF
No. 30) to the Traverse. After reviewing the record, including the Application, the
Answer, the Traverse, the supplement to the Traverse, and the state court record, the
Court FINDS and CONCLUDES that the Application should be denied and the case
dismissed with prejudice.

I. BACKGROUND
Mr. Brooks is challenging the validity of his conviction and sentence in Weld
County District Court case number 09CR959. The relevant factual background was
described by the Colorado Court of Appeals as follows:
Defendant was indicted on twenty-five counts of
securities fraud and one count of theft. He pleaded guilty to
four of the securities fraud counts and agreed to pay a set
amount of itemized restitution. In exchange, the People
agreed to dismiss the remaining charges. The parties also
stipulated to a sentencing cap of thirty-six years for the four
counts to which defendant pleaded guilty. The court
conducted a providency hearing and accepted defendant’s
plea. At the sentencing hearing, the court considered
statements from victims of the four nondismissed counts as
well as victims of the dismissed counts. The court
sentenced defendant to a combined thirty-two years in the
Department of Corrections. Defendant’s motion for
reconsideration of his sentence was denied.
People v. Brooks, No. 12CA1781, slip op. at 1 (Colo. App. Mar. 6, 2014) (ECF No. 12-6
at 2). Although Mr. Brooks filed a direct appeal, he later moved to dismiss the appeal
and that motion was granted on January 28, 2011. (See ECF No. 12-4.)
On February 16, 2011, Mr. Brooks filed in the trial court a postconviction motion
pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See ECF No. 122.) Counsel was appointed to represent Mr. Brooks and counsel filed a supplement to
the Rule 35(c) motion. (See ECF No. 12-3.)
In his postconviction motion, defendant claimed that his
Crim. P. 11 advisement was inadequate and that his trial
counsel provided ineffective assistance by (1) misadvising
defendant of the effect of his plea; (2) failing to consult or
employ a securities fraud, business law, or contract law
expert; and (3) providing inadequate representation at
sentencing. He also alleged his trial counsel erroneously
told him he could not withdraw his guilty plea prior to the
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sentencing hearing.
In a written order, the district court discussed the
majority of defendant’s postconviction allegations but did not
expressly address trial counsel’s advice regarding
withdrawal of the plea. The court concluded that defendant’s
claims did not warrant relief and denied his postconviction
motions without a hearing.
(ECF No. 12-6 at 2-3.) On appeal from the trial court’s order denying the Rule 35(c)
motion Mr. Brooks “challenge[d] only the district court’s summary dismissal of his
allegation that counsel told him he could not withdraw his plea.” (Id. at 3.) The
Colorado Court of Appeals deemed abandoned “[a]ny issues raised in the
postconviction motion but not reasserted on appeal.” (Id.) On March 6, 2014, the trial
court’s order denying the Rule 35(c) motion was affirmed. (See id.) Mr. Brooks did not
seek certiorari review in the Colorado Supreme Court.
The Application was filed on August 15, 2014, and Mr. Brooks asserts the
following eight claims for relief: (1) trial counsel was ineffective “by failing to consult or
employ a securities fraud, business law, or contract law expert because counsel was
not proficient in the . . . applicable substantive and procedural laws of securities fraud”
(ECF No. 1 at 5); (2) trial counsel was ineffective “by misadvising the applicant of the
effect of his plea” (id. at 12); (3) trial counsel was ineffective “by providing inadequate
representation at sentencing” (id. at 14); (4) trial counsel was ineffective and violated
due process “by erroneously telling the applicant he could not withdraw his guilty plea
prior to sentencing” (id. at 18); (5) the trial court violated due process “by failing to
properly advise the applicant of the effect of his plea due to a deficient Rule 11
advisement” (id. at 19); (6) the trial court violated due process “by denying [the

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applicant] post-conviction relief based upon inaccurate and incomplete information” (id.
at 25); (7) the Colorado Court of Appeals violated due process “by deciding to deny [the
applicant] post-conviction relief based upon inaccurate and incomplete information” (id.
at 26); and (8) trial counsel was ineffective “when the errors are considered
cumulatively” (id. at 27). The Court previously entered an Order to Dismiss in Part (ECF
No. 24) dismissing claims 1, 2, 3, 5, 8, and the due process portion of claim 4 as
unexhausted and procedurally barred. The Court also dismissed claims 6 and 7 for
failure to raise a cognizable federal constitutional issue. Therefore, only the ineffective
assistance of counsel portion of claim 4 remains to be considered on the merits.
After the Court entered the Order to Dismiss in Part, Mr. Brooks filed a Motion for
Leave to File an Amended Complaint (ECF No. 25) in which he seeks to provide a more
complete factual basis for his remaining ineffective assistance of counsel claim. Mr.
Brooks contends that he should be allowed to include additional allegations in support of
his remaining claim because, as the Court noted in the Order to Dismiss in Part, the
factual basis for the ineffective assistance of counsel portion of claim 4 is related to the
factual basis for the ineffective assistance of counsel argument set forth in claim 2 in the
Application.
The Motion for Leave to File an Amended Complaint will be denied because, as
discussed in the Order to Dismiss in Part, Mr. Brooks has not exhausted state remedies
with respect to claim 2 in the Application or the factual allegations that support claim 2 in
the Application. Mr. Brooks may not circumvent his failure to exhaust state remedies
with respect to claim 2 by incorporating the factual allegations that support claim 2 into a
separate and distinct claim that counsel was ineffective.
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II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Mr. Brooks
liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d
at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Mr. Brooks bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the Court must answer under § 2254(d)(1) is whether
Mr. Brooks 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 the Court’s inquiry under § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly
established federal law if: (a) “the state court applies a rule
that contradicts the governing law set forth in Supreme Court
cases”; or (b) “the state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that]
precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
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incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation
omitted). In conducting this analysis, the Court “must determine what arguments or
theories supported or . . . could have supported[] the state court’s decision” and then
“ask whether it is possible fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id.
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, 131 S. Ct.
1388, 1398 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 562 U.S. at 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
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fairminded disagreement.
Richter, 562 U.S. at 103.
The Court reviews claims of 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 Court to grant a writ of habeas corpus only if the relevant state court decision
was based on an unreasonable determination of the facts in light of the evidence
presented to the state court. Pursuant to § 2254(e)(1), the Court must presume that the
state court’s factual determinations are correct and Mr. Brooks bears the burden of
rebutting the presumption by clear and convincing evidence. “The standard is
demanding but not insatiable . . . [because] ‘[d]eference does not by definition preclude
relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see
also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious effect’ exists when the
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court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.”
Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave
doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual
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 review of the entire state court
record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
Cir. 2004).
III. MERITS OF APPLICANT’S REMAINING CLAIM
Mr. Brooks contends in the ineffective assistance of counsel portion of claim 4
that trial counsel was ineffective “by erroneously telling the applicant he could not
withdraw his guilty plea prior to sentencing.” (ECF No. 1 at 18). Mr. Brooks specifically
alleges as follows in support of this ineffective assistance of counsel claim:
Fourteen hours before sentencing the defendant
became aware of numerous inconsistencies that he became
concerned of. Trial counsel, Ms. Stout, had waited until the
night before sentencing to provide a copy of the presentence
investigation report to the defendant and also gave him 26
victim impact statements that had been provided to the court
for sentencing purposes. Mr. Brooks believed his criminal
exposure was limited to only the four counts he plead to, so
he did not understand why he had been given 26 victim
impact statements. He believed only the four victims from
the counts he was pleading to were considered victims, so
he only thought those four people could speak at sentencing,
and believed only those four people could file victim impact
statements. Rather than give an explanation to the
defendant as to why all the victim impact statements could
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be used, Ms. Stout advised Mr. Brooks that he “probably”
was not going to be sentenced in the morning, so they could
discuss the defendant’s confusion in depth at a later time,
which is qualified by Ms. Stout’s statements to the court on
the day of sentencing. Ms. Stout believed sentencing was
not going to occur in the morning because a court mistake
had not completed Community Corrections or ISP screening
of Mr. Brooks.
In the morning, once Mr. Brooks found out that
sentencing was going to proceed, he asked Ms. Stout if he
could withdraw his plea. The defendant was told he could
not do so, another incorrect advisement, . . . .
(Id.)
It was clearly established when Mr. Brooks was convicted that a defendant has a
Sixth Amendment right to the effective assistance of counsel. See Strickland v.
Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims are mixed
questions of law and fact. See id. at 698.
To establish that counsel was ineffective, Mr. Brooks must demonstrate both that
counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. See id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
There is “a strong presumption” that counsel’s performance falls within the range of
“reasonable professional assistance.” Id. It is Mr. Brooks’ burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id. “For counsel’s performance to be constitutionally ineffective, it
must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d
904, 914 (10th Cir. 1999).
Under the prejudice prong, Mr. Brooks must establish “a reasonable probability
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that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 562 U.S. at
112 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable.”). In determining whether Mr. Brooks has established prejudice, the Court
must look at the totality of the evidence and not just the evidence that is helpful to Mr.
Brooks. See Boyd, 179 F.3d at 914.
If Mr. Brooks fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claims must be dismissed. See Strickland, 466 U.S. at 697.
Furthermore, conclusory allegations that counsel was ineffective are not sufficient to
warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir.
2001). Finally, “because the Strickland standard is a general standard, a state court
has even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The Colorado Court of Appeals applied the two-part Strickland test and rejected
this ineffective assistance of counsel claim because Mr. Brooks failed to demonstrate he
suffered any prejudice.
Defendant asserted in his postconviction motion that,
after pleading guilty but before being sentenced, he asked
his counsel if he could withdraw his plea. His counsel
responded “with a quick ‘no’” and never informed the court of
his request before sentencing proceeded.
Assuming defendant’s allegations are true, trial
counsel’s advice would have deprived defendant of an
opportunity to raise a timely motion to withdraw his plea.
Because the trial court made findings of fact rejecting
defendant’s allegations, the record establishes that the court
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would not have granted such a motion. Therefore, we
perceive no prejudice to defendant and, thus, find it
unnecessary to determine whether counsel’s advice fell
below an objective standard of reasonableness.
Crim. P. 32(d) allows a defendant to make a motion to
withdraw a guilty plea before the sentence is imposed. The
right to withdraw a guilty plea under Crim. P. 32(d), however,
is not absolute. Instead, a defendant bears the burden of
proving that a “‘fair and just’” reason for withdrawal exists,
and there must be a showing that justice will be subverted if
the motion is denied. Kazadi v. People, 2012 CO 73, ¶ 14
(quoting People v. Chippewa, 751 P.2d 607, 609 (Colo.
1988)); see also Crumb v. People, 230 P.3d 726 (Colo.
2010).
Such a showing includes instances where a
defendant was surprised or influenced into a
plea of guilty to which the person had a
defense; where a plea of guilty was entered by
mistake or under a misconception of the nature
of the charge; where such plea was entered
through fear, fraud, or official
misrepresentation; where it was made
involuntarily; or where ineffective assistance of
counsel occurred in the process.
Kazadi, ¶ 14.
Here, defendant’s postconviction motion alleges that
he was “under the impression that the only victims that
would be allowed to file victim impact statements were the
victims of the charges he was pleading to and not . . . the
victims named in charges that were dismissed.” On the
night before his sentencing hearing, he learned that the court
would be considering statements from victims of the
dismissed charges. Based on this information, he decided to
withdraw his guilty plea. We conclude that the record
establishes that, had defendant moved to withdraw his plea,
the motion would not have been granted.
First, in ruling on defendant’s ineffective assistance of
counsel claim, the district court found that defendant failed to
demonstrate that he was not advised of the sentencing
court’s ability to consider the victims of dismissed counts.
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The district court specifically rejected defendant’s claim of
surprise that harm to victim’s of dismissed charges could be
considered, stating, “[h]is postconviction assertion that he
believed only the victims of the four counts could be
considered by the court is simply contradicted by his own
statements and actions.” As the district court noted in its
written order, defendant signed a “Written Waiver and Plea
Agreement” specifically authorizing submission of additional
documents prior to or at sentencing. Cf. Chippewa, 751
P.2d at 610 (permitting withdrawal where nothing in the
record suggested that defendant, at the time he entered his
plea, had been advised or was aware that a sentence in the
aggravated range was mandated because of his parole
status). Defendant also agreed to an order of restitution in
an amount intended to compensate all of his victims. At the
providency hearing, defendant noted that the itemization of
restitution, which included amounts owed to individuals on
dismissed counts, “looks accurate to me.” He did not seek
clarification from the court regarding its ability to consider
harm caused to victims of dismissed charges, and he has
not alleged that trial counsel misrepresented the court’s
ability to consider such information in determining an
appropriate sentence. In addition, before being sentenced,
defendant submitted a letter to the court indicating
awareness that the scope of his actions impacted every
victim represented in the restitution agreement. Thus, the
district court found, as a factual matter, that defendant was
aware that the court could consider statements from the
victims of the dismissed counts, and that his plea was
entered knowingly and voluntarily, rather than by mistake or
under a misconception about what might be considered at
sentencing.
If defendant had made his argument that he had been
unaware of the court’s ability to consider harm done to
victims of dismissed counts in a timely Crim. P. 32(d) motion,
it would not have changed the outcome of the proceeding –
the court would have rejected the facts alleged in the motion
and imposed a sentence based on defendant’s guilty plea.
Because defendant has failed to demonstrate that, but for
counsel’s alleged ineffective assistance, the result of the
proceeding would have been different, the district court
properly dismissed his allegation without a hearing.
(ECF No. 12-6 at 6-10 (footnote omitted).)
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Mr. Brooks does not argue that the state court’s decision was contrary to
Strickland. In other words, he does not cite any contradictory governing law set forth in
Supreme Court cases or any materially indistinguishable Supreme Court decision that
would compel a different result. See House, 527 F.3d at 1018. Mr. Brooks does cite
Hill v. Lockhart, 474 U.S. 52 (1985), as the proper standard to evaluate prejudice under
Strickland. The Supreme Court in Hill held that, to show prejudice under Strickland in
challenging a guilty plea based on ineffective assistance of counsel, the defendant must
demonstrate a reasonable probability that, but for counsel’s alleged errors, he would not
have pled guilty but would have insisted on going to trial. See Hill, 474 U.S. at 59.
Although Mr. Brooks was convicted following a guilty plea, his remaining claim does not
challenge the guilty plea. Instead, Mr. Brooks contends in the ineffective assistance of
counsel portion of claim 4 that counsel erroneously told him he could not withdraw his
guilty plea. Therefore, the proper prejudice inquiry must focus on the opportunity to file
a motion to withdraw the guilty plea and the Colorado Court of Appeals properly
considered whether Mr. Brooks suffered any prejudice under Strickland by addressing
whether the trial court would have granted such a motion. As a result, to the extent Mr.
Brooks may be arguing the state court’s decision is contrary to Hill, the Court rejects the
argument.
Mr. Brooks also fails to demonstrate that the state court’s decision rejecting his
remaining ineffective assistance of counsel claim was an unreasonable application of
Strickland. Mr. Brooks’ arguments regarding prejudice are premised on his contention
that his statements and beliefs regarding restitution owed to all of his victims do not
demonstrate an awareness that the trial court could consider the dismissed counts at
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sentencing. However, the state court determined as a factual matter “that defendant
was aware that the court could consider statements from the victims of the dismissed
counts.” (ECF No. 12-6 at 9.) The Court presumes this factual determination is correct
and Mr. Brooks bears the burden of rebutting the presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1).
Although Mr. Brooks obviously disagrees with the state court’s factual finding
premised on his statements and actions with respect to restitution, he does not present
clear and convincing evidence to overcome the presumption of correctness. For one
thing, Mr. Brooks concedes “he never believed his financial exposure was limited only to
the four counts he plead to.” (ECF No. 29 at 6.) His explanation that he was conceding
only civil liability and not criminal culpability is belied by the fact that restitution was part
of his plea agreement in a criminal case and was imposed as part of the criminal
judgment. The fact that Mr. Brooks previously rejected a different plea agreement also
is not clear and convincing evidence of his alleged lack of awareness that the trial court
could consider statements from the victims of the dismissed counts at his sentencing.
In light of the state court’s factual determination that Mr. Brooks was aware the
trial court could consider statements from the victims of the dismissed counts at
sentencing, the state court’s legal conclusion that Mr. Brooks was not prejudiced by
counsel’s alleged ineffectiveness in advising Mr. Brooks he could not file a motion to
withdraw his guilty plea prior to sentencing is not an unreasonable application of clearly
established federal law. Given the state court’s specific determination that a motion to
withdraw his guilty plea would have been denied under state law, the Court agrees with
the Colorado Court of Appeals that Mr. Brooks fails to demonstrate prejudice under the
15

general Strickland standard. In short, Mr. Brooks is not entitled to habeas relief with
respect to the ineffective assistance of counsel portion of claim 4 because he fails to
demonstrate the state court’s ruling regarding the absence of prejudice 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.
V. CONCLUSION
In summary, the Court finds that Mr. Brooks is not entitled to relief on his
remaining claim. Accordingly, it is
ORDERED that the Motion for Leave to File an Amended Complaint (ECF No.
25) is denied. It is further
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1) is denied and this case is dismissed with prejudice. It is
further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c).

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DATED May 14, 2015.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

17