Newton v. Miller et al
Filing
35
ORDER Denying Application for Writ of Habeas Corpus; The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 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), by Magistrate Judge Kathleen M. Tafoya on 7/1/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14-cv-02982-KMT
DANE S. NEWTON,
Applicant,
v.
MICHAEL MILLER, 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 March
11, 2015, and the parties’ unanimous consent to disposition of this action by a United
States Magistrate Judge.
Applicant Dane S. Newton is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Newton has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) (“the Application”)
challenging the validity of his conviction and sentence in Douglas County District Court
case number 07CR434. Respondents have filed an Answer (ECF No. 27) (“the
Answer”) and Mr. Newton has filed a Reply Brief (ECF No. 34) (“the Traverse”). After
reviewing the record, including the Application, the Answer, 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
The Colorado Court of Appeals described the relevant factual and procedural
background as follows:
Defendant was convicted of aggravated robbery,
conspiracy to commit aggravated robbery, menacing with a
deadly weapon, illegal discharge of a firearm, and theft
($100-$500), all arising from the armed robbery of a liquor
store.
Defendant was sentenced to imprisonment for twentyfour years on the aggravated robbery charge and twelve
years on the conspiracy charge, to be served consecutively.
He also received shorter, concurrent sentences on the other
convictions.
A division of this court affirmed defendant’s
convictions on direct appeal. People v. Newton, (Colo. App.
No. 08CA1909, June 2, 2011) (not published pursuant to
C.A.R. 35(f)).
In 2013, defendant filed a motion for postconviction
relief under Crim. P. 35(c) alleging ineffective assistance of
trial counsel. The district court, without holding a hearing,
issued a comprehensive order denying the motion.
People v. Newton, No. 13CA0567, slip op. at 1-2 (Colo. App. July 17, 2014) (ECF No.
27-1 at 2-3). The trial court’s order denying the Rule 35(c) motion was affirmed on
appeal. (See id.) Mr. Newton did not seek certiorari review in the Colorado Supreme
Court in the postconviction proceedings in a timely manner. (See ECF No. 13-15.)
The Application was filed on November 3, 2014. Mr. Newton raises the following
seven claims for relief in the Application: (1) the trial court’s failure to investigate pretrial
allegations of a conflict with counsel resulted a denial of Mr. Newton’s right to conflictfree counsel; (2) trial counsel was ineffective by making Mr. Newton waive his right to a
speedy trial; (3) trial counsel was ineffective by failing to advise him properly regarding
2
the difference between an Alford plea and a regular plea agreement; (4) trial counsel
was ineffective by failing to provide a timely alibi witness notice, and the trial court
abused its discretion in not allowing the alibi witnesses to testify; (5) trial counsel was
ineffective by failing to object to the prosecution’s improper comment during closing
argument about Mr. Newton’s silence; (6) trial counsel was ineffective by failing to
object to false information in the presentence investigation report; (7) counsel on direct
appeal was ineffective by failing to raise the conflict issue. The Court previously
entered an Order to Dismiss in Part (ECF No. 21) dismissing claims 1, 4, and 7 as
unexhausted and procedurally barred. As a result, only claims 2, 3, 5, and 6 remain to
be considered on the merits.
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Mr. Newton
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.
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28 U.S.C. § 2254(d). Mr. Newton 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. Newton 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 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)
4
(quoting Williams, 529 U.S. at 405). “The word ‘contrary’ is
commonly understood to mean ‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A]
decision is ‘objectively unreasonable’ when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.”
Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable
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
5
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
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. Newton 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)).
6
Finally, the Court’s analysis is not complete “[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.”
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the
harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see
also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime it finds constitutional error in a
state court proceeding regardless of whether the state court found error or conducted
harmless error review). Under Brecht, a constitutional error does not warrant habeas
relief unless the Court concludes it “had substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious effect’ exists when the
court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.”
Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave
doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual
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 CLAIMS
It was clearly established when Mr. Newton was convicted that a defendant has a
7
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 counsel was ineffective Mr. Newton 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. Newton’s burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id. “For counsel’s performance to be 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. Newton must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 562 U.S. at
112 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable.”). In determining whether Mr. Newton has established prejudice, the Court
must look at the totality of the evidence and not just the evidence that is helpful to Mr.
Newton. See Boyd, 179 F.3d at 914.
If Mr. Newton 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.
8
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).
A. Claim 2
Mr. Newton contends in claim 2 that trial counsel was ineffective by making him
waive his right to a speedy trial and agree to be tried one day past the speedy trial
deadline. Mr. Newton asserts that he agreed to waive his right to a speedy trial for one
day because counsel told him she had not received pertinent video evidence from the
prosecution in a timely manner. However, Mr. Newton later discovered that trial counsel
actually received the video evidence in question more than three months earlier.
According to Mr. Newton, it was trial counsel’s lack of planning rather than a discovery
defect that caused him to waive his right to a speedy trial.
The Colorado Court of Appeals applied the two-part Strickland test and reasoned
as follows in rejecting this ineffective assistance of counsel claim:
Defendant argues that counsel rendered ineffective
assistance in the context of defendant’s right to a speedy
trial. The district court held that “[t]rial counsel’s reasons for
the continuance were abundantly appropriate and designed
to allow counsel the opportunity to prepare for trial,” and it
concluded that “[d]efendant has failed to establish that the
request to continue for one day outside of speedy trial was
anything other than effective advocacy by trial counsel on
behalf of [defendant].” We agree with the court that
defendant has not established that counsel was ineffective
for requesting the continuance.
At a pretrial hearing on April 3, 2008, counsel
9
explained that trial was set for April 8. She asked the court
to continue the trial, however, because the tape she had
received in March of J.S.’s police interview was essentially
inaudible and only that morning had she received a DVD of
the interview, which the prosecution told her was easier to
hear. The court established that the trial would need to be
set by May 19 to be within the speedy trial period. However,
to accommodate counsel’s and the court’s schedules,
counsel requested a trial date of May 20, one day past the
speedy trial deadline. The court asked defendant if he was
willing to waive his speedy trial rights for that one day, to
which defendant answered affirmatively. The court then
granted the continuance.
Defendant now argues that counsel’s statement at the
April 3 hearing that she had received the tape of J.S.’s
interview a month earlier, in March, was false because on
May 20, the first day of trial, she admitted she had received
the taped interviews of J.S., C.P., and B.S. in January.
Defendant therefore claims that counsel’s inaccurate advice
– that a continuance was necessary to review the tape and
prepare for trial – caused him to waive his speedy trial rights
and consequently he was deprived of his due process right
to a speedy trial.
The United States and Colorado Constitutions grant a
criminal defendant the right to a speedy trial. People v.
Curren, 2014 COA 59, ¶ 15. Section 18-1-405(1), C.R.S.
2013, requires that a defendant be brought to trial within six
months of his plea of not guilty. People v. McMurtry, 122
P.3d 237, 240 (Colo. 2005). The statute does not create any
additional rights; rather, it provides a method of securing the
constitutional speedy trial right. Id. at 240-41. Both the
statute itself and Colorado case law construing the statute
provide that the defendant can waive the right to a speedy
trial under a variety of circumstances. Id. at 242.
Defendant fails to allege facts that establish he was
prejudiced by relying on counsel’s recommendation and
waiving his speedy trial right. Had defendant refused to
waive his speedy trial right, there is no indication that the
ultimate outcome of the proceeding would have been any
different.
We thus conclude that the court did not err in denying
10
his Crim. P. 35(c) motion on this basis. See Ardolino, 69
P.3d at 77 (the denial of a Crim. P. 35(c) motion alleging
ineffective assistance is justified if the existing record
establishes that the defendant’s allegations, even if proven
true, would fail to establish one or the other prong of the
Strickland test).
(ECF No. 27-1 at 13-16.)
Mr. Newton 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. Newton also fails to demonstrate that the state court’s decision rejecting this
ineffective assistance of counsel claim was an unreasonable application of Strickland.
Mr. Newton specifically argues that counsel’s stated reason for seeking a continuance
that led to the one-day waiver of his right to a speedy trial was disingenuous. However,
he does not address the state court’s determination that he failed to allege facts that
demonstrate prejudice under Strickland.
The Court concludes that Mr. Newton is not entitled to habeas relief with respect
to claim 2 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. It was not unreasonable for the state court to
conclude Mr. Newton was not prejudiced by his reliance on counsel’s recommendation
to waive his right to a speedy trial for one day because he fails to demonstrate the result
of the proceeding would have been different if he did not waive his right to a speedy
11
trial.
B. Claim 3
Mr. Newton contends in claim 3 that trial counsel was ineffective by failing to
advise him properly regarding the difference between a regular plea agreement and a
guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970). Mr. Newton alleges
in support of claim 3 that the trial court refused to accept his guilty plea on the first day
of trial, which included a stipulated sentence of thirteen years in prison, because he
insisted he was not guilty. According to Mr. Newton, the plea agreement could have
been designated an Alford plea and “[t]his lack of advisement and improper negotiation
with [the] prosecution led to an extremely adverse consequence as [Mr. Newton]
received a 36[-]year prison sentence, designated ‘violent’, instead of the 13[-]year
sentence he would have received.” (ECF No. 1 at 8-9.)
The Colorado Court of Appeals applied the two-part Strickland test and rejected
this ineffective assistance of counsel claim because Mr. Newton failed to demonstrate
prejudice.
Defendant argues that counsel was ineffective
because she did not advise him about the possibility of
making an Alford plea after the district court informed
defendant it would not accept his guilty plea if he maintained
his innocence. The district court rejected defendant’s claim,
concluding that “[d]efendant has failed to establish that he
was entitled to an Alford plea in this matter.” We agree with
the court that defendant would have needed to make such a
showing to demonstrate he was prejudiced by counsel’s
failure in this area.
On the first day of trial, counsel informed the court
that defendant was prepared to plead guilty to aggravated
robbery and that in exchange, the prosecution had agreed to
a stipulated sentence of thirteen years. Counsel explained
12
that defendant made this decision because although there
was not “a whole lot of physical evidence to support a
conviction, there is evidence, specifically through witness
testimony, that would support a conviction” and “there is a
significant likelihood that he would be convicted at trial.”
The court then conducted a providency hearing.
When the court asked defendant if he was satisfied with the
work of counsel on his behalf, defendant answered that he
was not. Defendant explained his concerns and then stated,
“[a]nd now I find myself here at trial, and I didn’t do this. And
I find myself trying to take 13 years for something I didn’t
do.” In response, the court stated that it “does not take pleas
from people who tell [it] they didn’t commit the crime.”
Defendant subsequently decided not to plead guilty and to
proceed to trial.
Defendant argues that counsel should have advised
both him and the court of the court’s ability to accept
defendant’s plea under the provisions of Alford, 400 U.S. 25.
He claims that had she done so, defendant would have
received the stipulated thirteen-year sentence and not gone
to trial.
A criminal defendant has the right to counsel at every
critical stage of the proceeding, which includes the
acceptance of a plea offer and the entry of a guilty plea.
Carmichael v. People, 206 P.3d 800, 805 (Colo. 2009).
Additionally, “a defendant may maintain his innocence while
nonetheless entering into a valid plea agreement.” Id. at 808
(citing Alford, 400 U.S. 25).
However, “[t]here is . . . no absolute right to have a
guilty plea accepted” and “[a] court may reject a plea in
exercise of sound judicial discretion.” Santobello v. New
York, 404 U.S. 257, 262 (1971); see also § 16-7-206(2),
C.R.S. 2013 (“The refusal . . . of the district attorney or the
court to accept a plea of guilty to the charge shall not be a
basis for assignment of error, and such refusal . . . by the
district attorney or court is final.”); United States v. Cox, 923
F.2d 519, 525 (7th Cir. 1991) (A district court is not
precluded, “in the exercise of its sound discretion and in a[n]
appropriate case, from rejecting a plea allowed by Alford.”);
United States v. Gomez-Gomez, 822 F.2d 1008, 1011 (11th
Cir. 1987) (“When a defendant attempts to couple a guilty
13
plea with an assertion of facts that would negate his guilt, a
judge may properly treat this assertion as a protestation of
innocence. Though a judge may enter judgment upon a
guilty plea offered under these circumstances, he [or she] is
not required to do so.” (citing Alford, 400 U.S. at 38 nn. 1011)).
To show prejudice from counsel’s failure to inform
defendant and the court of the possibility of making an Alford
plea, defendant would have needed to allege facts that
support a reasonable probability the prosecution and the
court would have agreed to the Alford plea. We agree with
the People that defendant did not, and could not have, made
such a showing, especially considering the court’s statement
that it does not accept pleas from defendants who maintain
their innocence.
Therefore, because defendant has not alleged facts
that would establish a reasonable probability that the
outcome of the proceeding would have been different had
counsel raised the possibility of an Alford plea, we conclude
that the court did not err in denying defendant’s Crim. P.
35(c) motion on this basis. Because defendant has not
established prejudice, we do not consider whether counsel’s
failure in this respect constituted deficient performance. See
Strickland, 466 U.S. at 697 (“[A] court [need not] address
both components of the inquiry if the defendant makes an
insufficient showing on one.”).
(ECF No. 27-1 at 16-19.)
Mr. Newton does not specifically address the merits of claim 3 in the Traverse
and he fails to demonstrate the state court’s decision was contrary to or an
unreasonable application of Strickland. 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. He also
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
14
existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at
103. In particular, he fails to demonstrate or even allege that the prosecution would
have agreed to an Alford plea and, based on the trial court’s statement that it does not
accept guilty pleas from defendants who maintain their innocence, there is a clear
indication that the trial court would not have accepted an Alford plea. Therefore, Mr.
Newton is not entitled to relief with respect to claim 3.
C. Claim 5
Mr. Newton contends in claim 5 that trial counsel was ineffective by failing to
object to an improper comment made by the prosecutor during closing argument.
According to Mr. Newton, the prosecution told the jury during closing argument that
“Defendant has nothing to say to you.” (ECF No. 1 at 10.) He maintains that “[b]y
referencing [Mr. Newton’s] choice not to testify in a manner that could be construed as
[his] lack of defense to these charges, [the] prosecution . . . stripped [Mr. Newton] of his
constitutional right by implying that an exercise of that right may be an indication of
guilt.” (Id.)
The Colorado Court of Appeals rejected this ineffective assistance of counsel
claim because Mr. Newton failed to demonstrate counsel was ineffective under
Strickland.
Defendant argues that counsel was ineffective for
failing to object to a comment on defendant’s silence during
the prosecution’s closing argument. The district court
concluded that the record does not support defendant’s
allegations and that “[d]efendant has failed to establish that
the People referred in closing argument to [d]efendant not
testifying.” We agree with the court.
Defendant claims that the prosecutor told the jury that
15
defendant had nothing to say to them. However, the
transcript of the closing argument does not contain this
statement; rather, it shows that the prosecutor stated that
“the defense does not have to say anything to you,” which is
a correct statement of law.
Accordingly, counsel could not have been ineffective
for failing to object.
(ECF No. 27-1 at 20.)
Mr. Newton does not specifically address the merits of claim 5 in the Traverse
and he fails to demonstrate the state court’s decision was contrary to or an
unreasonable application of Strickland. Most importantly, he fails to address the factual
determination by the state courts that the prosecution did not make the challenged
statement. The Court presumes this factual determination is correct and Mr. Newton
bears the burden of rebutting the presumption by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1).
Although Mr. Newton asserts in the Application that the prosecution commented
on his silence during closing argument, he does not present clear and convincing
evidence to overcome the presumption of correctness. Furthermore, the Court’s review
of the transcript of Mr. Newton’s trial confirms that the state court’s factual determination
regarding the prosecution’s actual statement is correct. That is, rather than stating
during closing argument that “Defendant has nothing to say to you” as Mr. Newton
asserts, the transcript demonstrates the prosecution actually stated “the defense does
not have to say anything to you.” Counsel was not ineffective by failing to object to this
statement, which, as the state court noted, is a correct statement of law. Therefore, Mr.
Newton is not entitled to relief with respect to claim 5.
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D. Claim 6
Mr. Newton contends in claim 6 that trial counsel was ineffective by failing to
object to false information in the presentence investigation report. The allegedly false
information relates to two prior criminal charges against Mr. Newton in the State of
California, one for corporal injury on a spouse and one for assault with a firearm on a
person. Mr. Newton contends that “[t]hese charges are very prejudicial on their face”
and “may have played a very serious role in the trial judge sentencing him to such a
harsh punishment.” (ECF No. 1 at 11.) Mr. Newton apparently also argued in state
court that the presentence investigation report falsely indicated these charges resulted
in convictions even though the first charge was dismissed for lack of probable cause
and the second charge was never an official charge because he cooperated with police
detectives and no wrongdoing was found.
The Colorado Court of Appeals addressed this claim as follows:
Defendant argues that counsel was ineffective during
sentencing. . . . He also claims that counsel . . . did not
investigate and failed to challenge at the hearing the
contents of the presentence investigation report (PSIR).
....
Defendant argues that counsel provided defendant
with the PSIR fifteen minutes before the sentencing hearing;
that the PSIR incorrectly stated he had been convicted of
two acts of violence – assault with firearm on a person and
infliction of corporal injury on a spouse – for which he had
not been convicted; and that counsel told him it was too late
to challenge that information. However, the PSIR does not
state that defendant was convicted of these two acts of
violence. Rather, it states that he “was contacted for Assault
with Firearm on Person” and “[n]o disposition is known”; and
that he was “contacted for Inflict Corporal Injury on Spouse
[and] Driving Under the Influence of Alcohol/Drugs” and “he
17
pled guilty to Driving Under the Influence,” implying the
charge of inflicting corporal injury was dismissed. Thus,
because the PSIR did not incorrectly state defendant had
been convicted of these offenses, counsel’s performance
could not be deficient for not challenging any statements that
defendant had been convicted on those charges.
Moreover, even interpreting defendant’s argument to
be that the actual information contained in the PSIR was
false, not that it falsely showed he was convicted of the
offenses, defendant cannot establish prejudice because
there is no indication the sentencing court relied on this
information. At the sentencing hearing, the court
emphasized the violent nature of the crime (aggravated
robbery with a deadly weapon), its lasting effects on the
victim, and defendant’s prior conviction of the felony of
tampering with the identification marks on a firearm. The
court stressed that defendant twice had received parole in
the prior felony case and twice had violated parole.
Thus, defendant has not established a reasonable
probability that he would have received a lesser sentence
had counsel challenged the contents of the PSIR.
(ECF No. 27-1 at 20-23.)
Mr. Newton does not specifically address the merits of claim 6 in the Traverse.
He apparently does not dispute the state court’s factual determination that the presentence investigation report did not indicate he was convicted of the prior offenses in
question. In any event, he does not present clear and convincing evidence to overcome
the presumption of correctness that attaches to that factual determination. See 28
U.S.C. § 2254(e)(1). Thus, the Court presumes there was no indication in the
presentence investigation report that Mr. Newton was convicted of the prior charges.
Mr. Newton also fails to demonstrate the state court’s decision was contrary to
Strickland. 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
18
different result. See House, 527 F.3d at 1018.
Finally, Mr. Newton fails to demonstrate the state court’s ruling regarding the
absence of prejudice was an unreasonable application of Strickland. The transcript of
the sentencing hearing makes clear that the trial court at sentencing relied primarily on
the violent nature of the crime and its lasting effects on the victim. The trial court did
refer briefly to Mr. Newton’s past criminal record, but highlighted only a prior felony
conviction for tampering with the identification marks on a firearm and the fact that Mr.
Newton twice violated his parole in that prior felony case. The trial court did not even
mention the prior charges that provide the factual basis for claim 5 in the Application.
Under these circumstances, Mr. Newton cannot demonstrate a reasonable
probability that he would have received a reduced sentence if counsel had challenged
the contents of the presentence investigation report. In short, Mr. Newton fails to
demonstrate the state court’s prejudice determination 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. Therefore, Mr.
Newton also is not entitled to relief with respect to claim 6.
V. CONCLUSION
In summary, the Court finds that Mr. Newton is not entitled to relief on his
remaining claims. Accordingly, it is
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
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pursuant to 28 U.S.C. § 2253(c).
DATED July 1, 2015.
BY THE COURT:
Kathleen M. Tafoya
United States Magistrate Judge
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