Plancarte v. Suthers et al

Filing 39

ORDER: 1 Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED. 36 Motion for Leave to Proceed in Forma Pauperis is DENIED AS MOOT. 37 Motion for Hearing/Conference and to Appoint Counsel is DENIED AS MOOT. 38 Motion for Leave to Conduct Discovery is DENIED AS MOOT. by Judge R. Brooke Jackson on 6/29/15.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No. 14-cv-03205-RBJ
ANDREW PLANCARTE,
Applicant,
v.
JAMES FALK, Warden,
JOHN W. SUTHERS, the Attorney General of the State of Colorado, and
RICK RAEMISCH, the Executive Director of the C.D.O.C.,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Applicant, Andrew Plancarte, has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his criminal conviction
in the District Court of Denver County, Colorado. Respondents have filed an Answer
(Docket No. 31), and Applicant has filed a Reply (Docket No. 35). Having considered
the same, along with the state court record, the Court will deny the Application.
I. BACKGROUND
In August 2006, Applicant was convicted of first degree burglary, second degree
kidnapping, and two counts of third degree assault by a Denver District Court jury in
Case No. 04CR2929 . (Docket Nos. 1, at 5; 15-1, at 3-4). He was sentenced to an
aggregate prison term of 15 years with the Colorado Department of Corrections.
(Docket No. 1, at 4-5). Applicant’s convictions and sentences were affirmed on direct
appeal in People v. Plancarte, 232 P.3d 186, 189-91 (Colo. App. 2009) (Plancarte I).
(Docket No. 15-2). The state appellate court summarized the relevant facts as follows:
On the evening of March 25, 2004, two separate attacks on female

students occurred within thirty minutes of each other near the University of
Denver campus. At approximately 7:45 p.m., B.T. was walking home
from campus when a man jogged past her, turned around, looked at her,
and continued jogging. B.T. entered her residence a few houses away
through a back door, and a short time later, a man entered her home
through that door and punched her. B.T. recognized him as the same
man who had jogged past her. The man pulled B.T. out the back door,
threw her to the ground, repeatedly punched her, and then fled. At
approximately 8:00 p.m., M.S. was also walking home from campus.
M.S. turned around after hearing the sound of someone coming up behind
her. A jogger grabbed her waist, put a hand over her mouth, and
punched her in the head and in her side. They fell to the ground and the
man tried to strangle her. M.S. was able to scream, and the man ran off.
Shortly after the attacks, B.T. and M.S. each gave a statement to
the police and made a composite sketch of her attacker using a computer
program at the police station. Each victim’s description of her attacker,
and each composite, appeared to pertain to the same man. The police
released composites to the media and received numerous calls and tips
regarding potential suspects. An anonymous caller advised police that
the composite matched defendant’s description.
Based on the above evidence, defendant was arrested on May 26,
2004, and charged with one count of first degree burglary, two counts of
second degree kidnapping, and two counts of third degree assault. Prior
to trial, defense counsel filed a motion to suppress evidence of the
out-of-court identifications of defendant by B.T. and M.S. At a hearing on
the motion to suppress, the trial court heard testimony from B.T. and M.S.,
viewed video CDs of the identification process, and viewed the twenty
photos. It then denied defendant’s motion, finding that the photographic
array and identification procedure were not suggestive.
Plancarte I, 232 P.3d at 189. The Colorado Supreme Court denied Applicant’s petition
for certiorari review on June 28, 2010. (Docket No. 15-3).
On March 24, 2011, Applicant filed a state post-conviction motion to correct an
illegal sentence, pursuant to Colo. Crim. P. Rule 35(a), which was denied by the state
district court on April 5, 2011. (Docket No. 15-1, at 9). Applicant did not appeal.
On August 31, 2011, Applicant filed a motion for post-conviction relief pursuant
to Colo. Crim. P. Rule 35(c). (Id.). The state district court entered an order granting

2

the Rule 35(c) motion to the extent that the Court determined that his convictions for
third degree assault merged with his conviction for first degree burglary. (Id.). The
state court denied the remainder of Applicant’s claims. (Id.). The Colorado Court of
Appeals affirmed the district court’s order in People v. Plancarte, No. 11CA2433 (Colo.
App. Dec. 5, 2013) (unpublished) (Plancarte II) (ECF No. 15-10). Applicant’s petition
for certiorari review to the Colorado Supreme Court was denied on September 8, 2014.
(Docket No. 15-11).
Applicant filed a § 2254 Application in this Court on November 25, 2014, 1 in
which he asserts eight claims for relief:
1. Applicant’s consecutive sentences were imposed in violation of double
jeopardy and the Eighth Amendment. (Docket No. 1 at 16).
2. Prosecutorial misconduct. (Id. at 21).
3. Applicant suffered a complete denial of trial counsel by virtue of his trial
attorney’s failure to sufficiently argue an alibi defense, which failure
resulted from a conflict of interest, ignorance of the law, and inexperience.
(Id. at 33).
4. The theory of defense instruction denied Applicant his right to be
convicted only under a verdict of guilty beyond a reasonable doubt. (Id. at
37).
5. Ineffective assistance of appellate counsel. (Id. at 41).
6. The postconviction court erred in failing to hold an evidentiary hearing.
(Id. at 44).
7. Applicant’s right to due process was violated by the manner in which
the police handled the photographic lineups. (Id. at 65).
8. Insufficient evidence. (Id. at 7).

1

Mr. Plancarte filed a prior § 2254 Application in Andrew T. Plancarte v. John Chapdelaine, Warden, et al.,
Case No. 11-cv-02901-LTB, which was dismissed without prejudice on April 19, 2012, for failure to
exhaust available state court remedies.

3

In the Pre-Answer Response, Respondents conceded the timeliness of the
Application under the AEDPA one-year limitation period set forth in 28 U.S.C.
§ 2244(d). (Docket No. 15, at 5-9). Respondents further conceded that Mr. Plancarte
exhausted state court remedies for claim three. (Id. at 15). Respondents asserted,
however, that claim six did not invoke the Court’s federal habeas jurisdiction (id. at 4-5),
and that claims one, two, four, five, seven and eight were procedurally barred (id. at
15-17).
In a March 10, 2015 Order to Dismiss in Part, the Court agreed with
Respondents’ arguments as to claims one, two, four, five and six and dismissed those
claims. (Docket No. 23). The Court concluded, however, that Applicant exhausted
state court remedies for claims seven and eight. (Id.).
The Court reviews the merits of claims three, seven and eight below under the
AEDPA standard of review. (Id.).
II. LEGAL STANDARDS
A. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d). The applicant bears the burden of proof under § 2254(d). See

4

Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter,
562 U.S. 86, 98-99 (2011). In particular, “determining whether a state court’s decision
resulted from an unreasonable legal or factual conclusion does not require that there be
an opinion from the state court explaining the state court’s reasoning.” Id. at 98.
Thus, “[w]hen a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to the
contrary.” Id. at 99. Even “[w]here a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief.” Id. at 98. In other words, the court
“owe[s] deference to the state court’s result, even if its reasoning is not expressly
stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the court
“must uphold the state court’s summary decision unless [the court’s] independent
review of the record and pertinent federal law persuades [the court] that its result
contravenes or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Id. at
1178. “[T]his ‘independent review’ should be distinguished from a full de novo review
of the petitioner’s claims.” Id.
The court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th
Cir. 2003). The threshold question the court must answer under § 2254(d)(1) is

5

whether the applicant seeks to apply a rule of law that was clearly established by the
Supreme Court at the time his conviction became final. See Williams v. Taylor, 529
U.S. 362, 390 (2000). Clearly established federal law “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings
in cases where the facts are at least closely-related or
similar to the case sub judice. Although the legal rule at
issue need not have had its genesis in the closely-related or
similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly
established federal law, that is the end of the court’s inquiry pursuant to § 2254(d)(1).
See id. at 1018.
If a clearly established rule of federal law is implicated, the court must determine
whether the state court’s decision was contrary to or an unreasonable application of
that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law
if: (a) “the state court applies a rule that contradicts the governing law set
forth in Supreme Court cases”; or (b) “the state court confronts a set of
facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean
‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually
opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of
clearly established federal law when it identifies the correct governing
legal rule from Supreme Court cases, but unreasonably applies it to the
facts. Id. at 407-08. Additionally, we have recognized that an
unreasonable application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle from
Supreme Court precedent to a new context where it should apply.
6

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. In addition,
evaluating whether a rule application was unreasonable requires considering the
rule's specificity. The more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state court to decline to apply
a specific legal rule that has not been squarely established by [the Supreme]
Court.
Richter, 562 U.S. at 101 (internal quotation marks omitted). In conducting this
analysis, the court “must determine what arguments or theories supported or . . . could
have supported[ ] the state court's decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.” Id. Moreover, “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 562 U.S. at 88 (stating that “even a strong case for relief does not mean the

7

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 102.
The court reviews claims asserting factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n. 4 (10th Cir. 2002).
Section 2254(d)(2) allows the federal court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts
in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the
court must presume that the state court's factual determinations are correct and the
petitioner bears the burden of rebutting the presumption by clear and convincing
evidence. “The standard is demanding but not insatiable . . . [because] ‘[d]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)).
B. Pro Se Litigant
Applicant is proceeding pro se. The court, therefore, “review[s] his pleadings and
other papers liberally and hold[s] them to a less stringent standard than those drafted
by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However,
a pro se litigant's “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts

8

that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). Pro se status does not entitle
Applicant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002).
III. ANALYSIS
A. Claim Three
In claim three, Applicant contends that his trial counsel was constitutionally
ineffective in failing to present a sufficient alibi defense. (Docket No. 1, at 33).
Specifically, he asserts that counsel failed to: (a) conduct an adequate investigation of
an alibi defense and to secure videotapes of business premises that would have
corroborated the defense; (b) tender a theory of the case instruction, but instead
accepting the instruction proffered by the prosecution; and, (c) move for a judgment of
acquittal on the basis of alibi. (Docket No. 1, at 33-37; see also No. 15-12, at 14,
22-33). Applicant further maintains that defense counsel labored under an actual
conflict of interest that prevented counsel from adequately representing him at trial.
(Id.).
To prevail on a claim of ineffective assistance of counsel (IAC claim), a habeas
petitioner must show both that (1) his counsel’s performance was deficient (i.e., that
identified acts and omissions were outside the wide range of professionally competent
assistance), and (2) he was prejudiced by the deficient performance (i.e., that there is a
reasonable probability that but for counsel’s unprofessional errors the result would have
been different). Strickland v. Washington, 466 U.S. 668 (1984).

9

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

conceivable.” Strickland, 466 U.S. at 693.
“Surmounting Strickland’s high bar is never an easy task.” Richter, 562 U.S. at
105 (internal quotation omitted). “Establishing that a state court’s application of
Strickland was unreasonable under §2254(d) is all the more difficult.” Id. “When
§2254(d) applies, the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
In Plancarte II, the Colorado Court of Appeals reviewed Applicant’s claim under
the Strickland standard (Docket No. 15-10, at 4-5) and rejected it in toto. The Court
addresses each of the grounds relied on by the state appellate court below.
1. video evidence
Defendant first contends that his trial counsel failed to adequately
investigate his alibi defense and introduce the video tapes from a
convenience store and a movie theater to prove that he was not in the
vicinity of the university (where the attacks occurred) that day. We
disagree.
In rejecting this argument, the district court found, and we agree,
that defendant failed to establish prejudice from counsel’s allegedly
deficient performance. The record indicates that the prosecution did not
dispute whether defendant went to the convenience store or the movie
theater because those events did not correspond with the times that the
attacks occurred.
10

In addition, counsel presented testimony from three witnesses to
support defendant’s alibi by testifying that defendant was with them the
entire evening when the attacks occurred.
Therefore, because the videos would not have established
defendant’s whereabouts at the time the attacks occurred, there is not a
reasonable probability that the result would have been different had
counsel introduced them. Accordingly, because defendant failed to
establish prejudice, the court did not err in denying his claim. [State case
law citation omitted].
(Id., at 6-7).
The state appellate court’s factual finding that the prosecution did not dispute
Applicant’s presence at the convenience store and movie theater at the times testified
to by Applicant’s primary alibi witness are supported by the state court record. 2 As
such, defense counsel’s failure to introduce the videotapes was not deficient
performance. Further, there is no reasonable probability that Applicant was prejudiced
by defense counsel’s conduct.
A defense witness testified that on the afternoon preceding the assaults, she and
the Applicant went to a convenience store in Golden, and then to a movie theater to
exchange some tickets. 3 The witness further testified that she and the Applicant
arrived back at her apartment in Denver at approximately 6:15 p.m. after completing
these errands. 4 The first assault occurred near the University of Denver campus at
approximately 7:30-7:45 p.m. 5 Defense counsel’s failure to introduce videotape

2

State Court R., 8/18/06 Trial Tr., at 105-08.

3

State Court R., 8/17/06 Trial Tr. at 222-227.

4

Id. at 227.

5

Id.; 8/16/06 Trial Tr. at 31; 8/17/06 Trial Tr. at 8.

11

evidence to prove Applicant’s whereabouts before he returned to an apartment in
Denver more than one hour before the attacks occurred could not have affected the
outcome of Applicant at trial. Further, as the state appellate court found, three
witnesses testified that Applicant was with them at the time the attacks occurred,
thereby providing evidence of an alibi. 6
The Court finds and concludes that the state appellate court’s resolution of
Applicant’s IAC claim based on failure to introduce certain alibi evidence comported
with Strickland and was based on a reasonable determination of the facts in light of the
evidence presented in the state court proceeding. Therefore, Applicant is not entitled
to habeas relief for subclaim 3(a).
2. theory of the case instruction
Applicant next argues that trial counsel rendered deficient performance by failing
to tender a theory of the case instruction, but instead accepting the instruction proffered
by the prosecution.
Following closing arguments, defense counsel told the trial court that alibi was an
affirmative defense which had not been included in the instructions and that Applicant
was entitled to an instruction on it. 7 The court and prosecutor indicated their belief that
alibi was not an affirmative defense, but in an abundance of caution, the court provided
the jury with an additional instruction that the prosecutor drafted stating:
It is defendant’s position that he was not present at the time and place
where each crime is alleged to have been committed. The burden is upon
the People to prove each and every element of each charge as explained

6

Id., 8/17/06 Trial Tr. at 227-30; 255; 266-68.

7

Id., 8/18/06 Trial Tr., at 117-18.

12

in Instructions No. 4, 10, 11, 12 beyond a reasonable doubt. 8
The trial court then read the instruction to the jury and provided each juror with a copy
of it. 9 Defense counsel did not object to the instruction or this procedure.10
In Plancarte II, the Colorado Court of Appeals rejected Applicant’s claim on the
following grounds.
Defendant contends that because counsel failed to submit her own
theory of the case instruction and acquiesced in the prosecution’s
proposed instruction, her performance was deficient, and the result of the
trial would have been different had she participated in the drafting of that
instruction. We disagree.
The district court found, and we agree, that the instruction properly
informed the jury that defendant was asserting an alibi as a defense and
that the prosecution had the burden to prove each element of each crime
beyond a reasonable doubt. Moreover, defendant’s allegation of prejudice
does not indicate how the existing instruction was deficient. Therefore, his
bare assertion that the result of the proceeding would have been different
is insufficient to establish that he was prejudiced by counsel’s allegedly
deficient performance. [State case law citation omitted].
(Docket No. 15-10, at 7-8).
Under Colorado law, “a defendant is entitled to an instruction based on the
theory of defense of alibi if the record contains evidence of alibi and the theory is not
incorporated or included in other jury instructions.” People v. Nunez, 841 P.2d 261,
266 (Colo. 1992). The alibi instruction given to the jury need not be one proffered by
the defense. See id. at 265 (stating that “a trial court must cooperate with counsel to
correct an improper theory of defense instruction or draft an instruction that

8

Id. at 119, 127-128.

9

Id. at 130.

10

Id. at 127-130.

13

incorporates the substance of a defendant's theory.”)
The jury instruction tendered by the prosecution and approved by the state trial
court accurately described the defense theory of alibi. Applicant’s conclusory assertion
that defense counsel should have tendered a separate instruction, without any
explanation of why the prosecution’s instruction was unsatisfactory, is insufficient to
demonstrate prejudice. See Cummings v. Sirmons, 506 F.3d 1211, 1233-1234 (10th
Cir. 2007) (conclusory assertions of prejudice cannot establish an ineffective assistance
of counsel claim). The Court thus finds that the state appellate court’s resolution of
Applicant’s IAC claim was consistent with Strickland. Therefore, Applicant is not
entitled to federal habeas relief for subclaim 3(b).
3. motion for judgment of acquittal
Applicant further contends that defense counsel was ineffective in failing to
assert the Applicant’s alibi as the basis for the motion for judgment of acquittal.
At trial, defense counsel moved for judgment of acquittal after the close of the
prosecution’s case, asserting that the witnesses’ identifications were not reliable and
failed to prove that Applicant was the attacker.11 Viewing the identification evidence in
the light most favorable to the prosecution, the trial court denied the motion.12
In Plancarte II, the Colorado Court of Appeals concluded that Applicant could not
establish that he was prejudiced by counsel’s omission based on the following
reasoning:

11

State Court R., 8/17/06 Trial Tr., at 206.
12

Id. at 207.

14

. . . On direct appeal, a division of this court . . . concluded that there was
sufficient evidence in this case . . . . See Plancarte, 232 P.3d at 191-92.
Because the evidence was sufficient . . . , there is not a reasonable
probability that the result of the proceeding would have been different had
counsel . . . included defendant’s assertion of his alibi defense in the initial
motion for a judgment of acquittal . . . .
(Docket No. 15-10, at 9).
The Court finds that the state appellate court’s resolution of Applicant’s claim
was a reasonable application of Strickland. Defense counsel’s failure to raise alibi as a
basis for judgment of acquittal at the close of the prosecution’s case could not have
affected the jury’s verdict. In ruling on the motion, the trial court considered only the
evidence presented in the prosecution’s case. See People v. Bennett, 515 P.2d 466,
468-69 (1973). Evidence of alibi, which had not yet been presented by the defense,
was irrelevant. Furthermore, even if defense counsel had renewed the motion for
judgment of acquittal at the close of all the evidence, the Court has upheld, in claim
eight, infra, the AEDPA, the Colorado Court of Appeals’ determination that the evidence
was sufficient to support Applicant’s conviction.
Accordingly, Applicant is not entitled to federal habeas relief for subclaim 3(c).
4. conflict of interest
Applicant also alleges in support of claim three that defense counsel failed to
raise an adequate alibi defense because counsel labored under an actual conflict of
interest. According to Applicant, this conflict “emerged from a latent sympathy for the
alleged victims, in this, her initial criminal representation as, herself, a Denver University
alumna; conversely harboring a loathsome aversion toward her own client as the
accused assailant.” (Docket No. 1, at 35).
In Plancarte II, the Colorado Court of Appeals determined the following:
15

[O]ther than . . . a conclusory statement that counsel was biased
against him because of her affiliation with the university that the victims
attended, defendant has not provided any specific instance where counsel
made a decision during the representation that was influenced by that
relationship.
Therefore, because defendant has not alleged specific instances
where counsel made a decision based upon divided loyalties or divulged
confidential communications, he has failed to establish that there was an
actual conflict. [State case law citations omitted]. Accordingly, his claim
fails.
(Docket No. 15-10 at 13-14).
To trigger Sixth Amendment concerns, there must be more than a potential
conflict of interest or “a mere theoretical division of loyalties.” Mickens v. Taylor, 535
U.S. 162, 171 (2002). The ineffectiveness of counsel is presumed where counsel
“‘actively represented conflicting interests' and ‘an actual conflict of interest adversely
affected [the defense] lawyer's performance.’” Strickland, 466 U.S. at 692 (quoting
Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). However, where the asserted
conflict of interest does not involve counsel’s concurrent representation of multiple
defendants, a habeas petitioner must make an affirmative showing of prejudice under
Strickland. See Mickens, 535 U.S. at 176 (stating that it is “an open question” whether
the holding in Cuyler applies outside the context of concurrent, multiple representation).
Applicant’s conclusory allegation that counsel labored under a conflict of interest,
without specific factual allegations to demonstrate an actual conflict, is insufficient.
See Peterson v. Timme, No. 12-1436, 509 F. App’x 830, 832 (10th Cir. Feb. 6, 2013)
(unpublished) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)). Moreover,
Applicant does not explain how counsel’s alleged affiliation with the University of
Denver prejudiced him at trial. His assertion that defense counsel failed to present an

16

adequate alibi defense is refuted by the state court record. Defense counsel called six
witnesses to testify in support Applicant’s alibi that he was at home with his daughter,
her mother, and a friend at the time the assault occurred near the University of Denver
campus.13 As the trial judge recognized in rejecting Applicant’s post-trial complaints
about counsel’s performance, defense counsel provided Applicant “with a very
aggressive, very assertive, very intelligent defense.”14
The Court finds and concludes that the Colorado Court of Appeals’ determination
of Applicant’s claim was consistent with federal law and was reasonable in light of the
evidence presented in the state court proceeding. Applicant’s IAC claim based on an
alleged conflict of interest lacks merit and will be dismissed.
5. application of standards set forth in United States v. Cronic
Finally, the Court addresses Applicant’s implicit argument that the state appellate
court applied an incorrect legal standard in addressing his IAC claims under Strickland.
(Docket No. 35, at 9-12; see also No. 1, at 33-37). He contends that the IAC claims
must be analyzed under the standards set forth in United States v. Cronic, 466 U.S.
648, 658-59 (1984). (Id.).
In Cronic, the Supreme Court identified three extreme situations “so likely to
prejudice the accused that the cost of litigating their effect in a particular case [under
Strickland] is unjustified.” Bell v. Cone, 535 U.S. 685, 695 (2002) (citing Cronic, 466
U.S. at 658-59); see also Hooks v. Workman, 606 F.3d 715, 724 (10th Cir. 2010).
Applicant attempts to invoke Cronic's first and second situations. (Docket No. 35, at
13

See generally State Court R., 8/17/06 Trial Tr., at 215-280.

14

Id., 10/23/06 Sentencing Hr. Tr., at 6.

17

9-11).15
In the first situation, prejudice is presumed where a defendant is denied counsel
at a critical stage of his trial. Cronic, 466 U.S. at 659.
In the second situation, “a presumption of prejudice is warranted if ‘counsel
entirely fails to subject the prosecution's case to meaningful adversarial testing.’”
Hooks, 606 F.3d at 724 (quoting Cronic, 466 U.S. at 659). This means that the
lawyer's failures must run throughout the entire proceeding, Hooks, 689 F.3d at 1186,
and that the lawyer's performance “be so inadequate that, in effect, no assistance of
counsel is provided.” Cronic, 466 U.S. at 654 n. 11. See also Bell, 535 U.S. at 696-97
(“When we spoke in Cronic of the possibility of presuming prejudice based on an
attorney's failure to test the prosecutor's case, we indicated that the attorney's failure
must be complete.”).
The Court finds that the circumstances of Applicant’s case fail to trigger Cronic’s
presumption of prejudice. As an initial matter, the state court record establishes that
Applicant was not denied counsel at any stage of his trial. Furthermore, as discussed
in Section III.A.4, supra, Applicant failed to demonstrate in the state courts that his
counsel labored under an actual conflict of interest. In addition, the state court record
shows that defense counsel subjected the prosecution’s case to meaningful adversarial
testing by presenting a vigorous alibi defense and thoroughly cross-examining the
prosecution’s witnesses regarding the victims’ identification of Applicant as the
perpetrator. Accordingly, the Court finds that the state appellate court’s resolution of

15

The third situation requiring a presumption of prejudice arises when “the surrounding circumstances
made it so unlikely that any lawyer could provide effective assistance.” Cronic, 466 U.S. at 661.
Applicant does not assert that the third situation is applicable to his state criminal proceeding.

18

Applicant’s IAC claims under the Strickland standard, rather than the Cronic standard,
comported with federal law.
B. Claim Seven
In claim seven, Applicant asserts that the twenty-photo array from which the
victims identified him was unconstitutionally suggestive because: (1) there was a
“notable disparity” between the description of the attacker first given to the police and
the characteristics of the men in the photo array; (2) Applicant’s photo stood out from
the others; and (3) the number of photographs was “excessive.” (Docket No. 1 at
65-71).
1. controlling federal law
The Tenth Circuit has summarized the controlling legal principles as follows:
When the constitutionality of a photo array is challenged, the due process
clause requires a two-pronged inquiry: first, the court must determine
whether the photo array was impermissibly suggestive, and if it is found to
be so, then the court must decide whether the identifications were
nevertheless reliable in view of the totality of the circumstances.
United States v. Sanchez, 24 F.3d 1259, 1261-62 (10th Cir.1994) (citing Simmons v.
United States, 390 U.S. 377, 384 (1968)), and Johnston v. Makowski, 823 F.2d 387,
391 (10th Cir.1987)); see also Manson v. Brathwaite, 432 U.S. 98, 106-07 (1977) (“The
admission of testimony concerning a suggestive and unnecessary identification
procedure does not violate due process so long as the identification possesses
sufficient aspects of reliability.”); Watkins v. Sowders, 449 U.S. 341, 347 (1981) (noting
that “[i]t is the reliability of identification evidence that primarily determines its
admissibility”). The two prongs of the due process inquiry must be analyzed
separately, and “it is only necessary to reach the second prong if the court first
19

determines that the
array was impermissibly suggestive.” Sanchez, 24 F.3d at 1262 (internal citation
omitted).
2. state court proceedings
Before trial, Applicant filed a motion to suppress the out-of-court identification
evidence, and any subsequent in-court identification.16 Following a hearing, the trial
court ruled that the photo array was not unduly suggestive.17
In Plancarte I, the Colorado Court of Appeals reviewed Applicant’s claim under a
state law standard that was consistent with federal law, see 232 P.3d at 189-90, and
rejected it on the following grounds:
The photographic array contained twenty photos . . . . We find
nothing suggestive about the size of the array . . . .
....
Defendant argues that although there were twenty photos in the
array, seventeen of them were inconsistent with the victims’ descriptions
because the photos portrayed men who were light-skinned Anglos, had
facial hair, or wore glasses. He contends that, of the two or three photos
of clean-shaven Hispanic men, only defendant was wearing a brightly
colored orange shirt.
....
“[I]t is not required that all of the photographs in the array be
uniform with respect to one given characteristic.” Bernal [v. People], 44
P.3d [184,] 192 [(Colo. 2002)]. However, an array that includes a photo
“that is unique in a manner directly related to an important identification
factor may be held impermissibly suggestive.” Bernal, 44 P.3d at 192.
Thus, “[s]imply being of a different race or ethnic group from others placed
in a lineup does not necessarily make the lineup impermissibly
suggestive, especially where . . . the other individuals had roughly the
same characteristics and features of the accused.” Bernal, 44 P.3d at 192
16

State Court R., Court File, at 11-14.

17

Id., 1/6/06 Hrg. Tr., at 51-54.

20

(quoting Williams v. Weldon, 826 F.2d 1018, 1021 (11th Cir. 1987)).
Nonetheless, “a photo array in which the individual characteristics of the
accused, such as race, stand in stark contrast to the other photographs is
impermissibly suggestive.” Bernal, 44 P.3d at 192.
Because defendant raises concerns that some of the photos
portray men with facial hair, we note that in Bernal the supreme court said
“all that is required is that the ‘photos are matched by race, approximate
age, facial hair, and a number of other characteristics.’” Bernal, 44 P.3d at
191-92 (quoting People v. Webster, 987 P.2d 836, 839 (Colo. App.
1998)).
...
We [like the trial court] conclude that the photographic lineup was
not unconstitutionally suggestive. On the night of the crime, B.T.
described the attacker to police as a Hispanic or white male with a dark
complexion, clean shaven with dark, slightly curly or wavy hair, and
approximately 27 to 28 years of age. M.S. described the attacker as a
Hispanic or white male with a dark complexion, in his thirties,
approximately 5’10” with wide shoulders and a larger or protruding
stomach, and clean shaven with dark hair.
Although as many as five of the men in the lineup were too
light-skinned to fit the witnesses’ descriptions of the perpetrator’s race, the
other fifteen photographs were of dark-complected men of possible
Hispanic ethnicity. Unlike in Bernal, all photos show a similar blue
background.
The majority of the men had no facial hair, and the presence of thin
and short facial hair on the remaining men does not obscure their facial
features, constitute a substantial difference, or tend to draw attention to
defendant’s photo. The facial hair on some photos in the array, which was
presented to the victims just one week after the assaults, could easily be
explained by the perpetrator’s decision not to have shaved during that
time. And in this regard, the lineup admonishment form presented before
the victims viewed the array advised her to keep in mind that hair styles,
beards, and mustaches are easily changed.
Defendant also argues that his photo stood out because he is
wearing an orange shirt; however, the color was not bright and it did not
render the array impermissibly suggestive. See People v. Wilford, 111
P.3d 512, 514 (Colo. App. 2004).
For these reasons, like the trial court, we conclude that the array
was not impermissibly suggestive so as to give rise to a substantial
likelihood of misidentification.
21

(Plancarte I, 232 P.3d at 189-91).
3. application of AEDPA standard of review
The Supreme Court has not articulated what factors are relevant to deciding
whether an identification procedure is impermissibly suggestive. Consequently, a state
court’s determination of the suggestiveness of the identification procedure cannot be
regarded as contrary to clearly established Supreme Court precedent. See Lockyer v.
Andrade, 538 U.S. 63, 73-74 (2003) (state court's determination that a particular
sentence for a term of years did not violate Eighth Amendment not contrary to clearly
established federal law where Supreme Court case law lacked clarity on particular
factors to be employed).

A federal habeas court can set aside the state court's

determination on the issue of whether the identification was impermissibly suggestive
only where, presuming the correctness of the state court findings, it finds the
determination to be objectively unreasonable. 28 U.S.C. § 2254(e)(1); Lockyer, 538
U.S. at 76.
In determining whether a photo lineup is impermissibly suggestive, the Tenth
Circuit considers a number of factors, including the size of the array, the manner of its
presentation, and the details of the photographs. See United States v. Smith, 156 F.3d
1046, 1050 (10th Cir.1998).
“[T]he number of photographs in an array is not itself a substantive factor, but
instead is a factor that merely affects the weight given to other alleged problems or
irregularities in an array.” Sanchez, 24 F.3d at 1262 (stating that “minor irregularities
will be less noticeable and prejudicial as the number of photographs increases.”). In

22

this case, the number of photographs (20) does not indicate an impermissibly
suggestive identification procedure.
Second, Applicant has not challenged the manner in which the photographic
array was presented, and the Court’s independent review of the state court record
reveals no cause for concern.
And, finally, with regard to the details of the photographs, the Court finds that
fifteen of the twenty individuals were reasonably matched by race, approximate age,
and hair type.18 As such, the fact that five of the individuals depicted were too
light-skinned to be consistent with the victims’ descriptions did not render the array
impermissibly suggestive. Further, differences in facial hair between the photographed
individuals did not render the array unnecessarily prejudicial. See, e.g., United States
v. Thurston, 771 F.2d 449, 452-53 (10th Cir.1985) (finding identification procedure not
unduly suggestive where defendant was the only one in six photographs to have a
beard and whose hair was braided); United States v. Shoels, 685 F.2d 379, 385 (10th
Cir.1982) (holding that a photographic array of men with facial hair, where the suspect
had been described as without facial hair, was not unnecessarily suggestive).
The Court finds that the state appellate court reasonably determined that the
pre-trial identification procedure was “not impermissibly suggestive so as to give rise to
a substantial likelihood of misidentification.” Plancarte, 232 P.3d at 191. Because
Applicant’s claim fails on the first prong of the due process inquiry, there is no need to
consider whether the identifications were nonetheless reliable in view of the totality of
the circumstances. Applicant is not entitled to federal habeas relief for claim seven.
18

Supplemental State Court R., Exhibits, at 22-61.

23

C. Claim Eight
In claim eight, Applicant challenges the sufficiency of the evidence to support his
convictions. Specifically, he asserts that the victim’s testimony identifying him as the
perpetrator of the assaults was not credible and the pre-trial identification procedure
was impermissibly suggestive. (Docket No. 1, at 72-73). He contends that absent the
unreliable identification evidence, the jury would have acquitted him based on the
testimony of his alibi witnesses. (Id.).
A constitutional challenge to the sufficiency of the evidence is governed by
Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction
as a matter of due process if, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Coleman v. Johnson,

U.S.

, 132 S.Ct.

2060, 2064 (2012) (quoting Jackson, 443 U.S. at 319) (emphasis in the original). The
court looks at both direct and circumstantial evidence in determining the sufficiency of
the evidence. See Lucero v. Kerby, 133 F.3d 1299, 1312 (10th Cir. 1998). A federal
habeas court’s review under Jackson is “sharply limited, and a court faced with a record
of historical facts that supports conflicting inferences must presume-even if it does not
affirmatively appear in the record-that the trier of fact resolved any such conflicts in
favor of the prosecution, and must defer to that resolution.” Turrentine v. Mullin, 390
F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted).

See also

Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (in reviewing the sufficiency of
the evidence, the federal habeas court “may not weigh conflicting evidence nor consider
the credibility of witnesses,” but must “‘accept the jury's resolution of the evidence as
24

long as it is within the bounds of reason.’”) (quoting Grubbs v. Hannigan, 982 F.2d
1483, 1487 (10th Cir. 1993)).
Furthermore, the federal habeas court may not reject witness testimony in the
context of a sufficiency of the evidence challenge unless the testimony is “‘unbelievable
on its face, i.e., testimony as to facts that the witness physically could not have possibly
observed or events that could not have occurred under the laws of nature.’” Rea v.
Suthers, No. 10-1320, 402 F. App’x 329, 331 (10th Cir. Nov. 12, 2010) (unpublished)
(quoting Tapia v. Tansy, 926 F.2d 1554, 1562 (10th Cir.1991)) (internal quotations and
alteration omitted).
In Plancarte I, the Colorado Court of Appeals applied a state law standard similar
to Jackson, see 232 P.3d at 191-92, and rejected Applicant’s claim on the following
grounds:
Viewing the evidence in its totality and in the light most favorable to
the prosecution, we conclude that it was sufficient to sustain defendant’s
convictions beyond a reasonable doubt.
On the night of the attacks, B.T. and M.S. each provided a
description and helped create a composite drawing of her assailant, and
the two composites were very similar. Each victim identified defendant as
her assailant in the out-of-court identification and in-court identification.
B.T. testified that she was one hundred percent sure that
defendant was the attacker, and stated that she observed her assailant
face-to-face for about six seconds and was able to see him clearly in her
well-lit home.
M.S. testified that there was no question in her mind that defendant
was the attacker. Although B.T. and M.S. described the perpetrator to
police as several inches taller than defendant, this inconsistency does not
render their testimony incredible as a matter of law.
From this evidence, a juror could reasonably have concluded
beyond a reasonable doubt that defendant was the perpetrator in the
charged crimes. Furthermore, the jury’s guilty verdict indicates that it
25

believed the testimony of B.T. and M.S., and not the testimony of the
defense witnesses.
Therefore, we conclude that the evidence was sufficient to support
a finding that defendant was guilty of the crimes charged beyond a
reasonable doubt.
Plancarte I, 232 P.3d at 191-92.
The state court record supports the Colorado Court of Appeals’ factual findings
that the testimony of the two victims was credible, even if there were conflicts in their
descriptions of the perpetrator.19 Although Applicant urges the Court to discount the
victims’ identification testimony and instead credit the testimony of his alibi witnesses,
that is not the federal habeas court’s function where the jury’s resolution of conflicts in
the evidence was “within the bounds of reason.” Messer, 74 F.3d at 1013. The victims’
descriptions of their attacker to the police were generally consistent and fit the
Applicant.20 And, Applicant does not point to any clear and convincing evidence to
demonstrate that the victims’ testimony was incredible as a matter of law. As such, the
state appellate court’s determination that the victim’s testimony was legally sufficient to
support the jury’s verdict finding Applicant guilty of the assaults was not an
unreasonable application of the Jackson standard, nor was it based on an
unreasonable determination of the facts. Applicant is not entitled to federal habeas
relief for claim eight.
IV. MISCELLANEOUS MOTIONS
A. Request for Leave to Amend

19

See State Court R., 8/16/06 Trial Tr. (afternoon session), at 30-63; 8/17/06 Trial Tr., at 90-105.

20

See id. at 36-38; 76-78; 84-85; 8/17/06 Trial Tr., at 93-94.

26

In the Reply, Applicant requests leave to amend the Application to reinstate
claim six, newly revised as a federal constitutional claim. (Docket No. 35, at 2-5).
Claim six– asserting that the state post-conviction court erred in failing to hold an
evidentiary hearing–was dismissed in the March 10, 2015 Order to Dismiss in Part
(Docket No. 23) because the claim raised an issue of state law only, which failed to
invoke this Court’s federal habeas jurisdiction. See 28 U.S.C. § 2254(a) (federal
habeas relief is warranted where state prisoner’s custody violated the United States
Constitution or other federal law); see also Estelle v. Mcguire, 502 U.S. 62, 67 (1991)
(habeas corpus does not lie to correct errors of state law); Sellers v. Ward, 135 F.3d
1333, 1339 (10th Cir. 1998) (alleged errors in the State’s post-conviction remedy are
not grounds for § 2254 review); accord Pennsylvania v. Finley, 481 U.S. 551, 557
(1987) (recognizing that the Constitution does not require the states to grant
post-conviction review).
Applicant does not explain how he would revise claim six to state an alleged
violation of federal law. Furthermore, the new claim would be procedurally barred
because Applicant’s failure to raise it on direct appeal or in the state post-conviction
proceeding constitutes a procedural default, for which he cannot demonstrate cause
and prejudice or a fundamental miscarriage of justice. (See Order to Dismiss in Part,
Docket No. 23, at 7-9). Accordingly, the request to amend will be denied.
B. Requests for Discovery, the Appointment of Counsel, and a Hearing
Applicant has also filed a Memorandum of Law in Support of a Request for an
Evidentiary Hearing and Appointment of Counsel (Docket No. 37), and a Memorandum
of Law in Support of a Motion for Leave to Conduct Discovery and Fact-Finding
27

Procedures (Docket No. 38), which have been docketed as pending motions.
The Court has determined that the § 2254 Application can be resolved based on
the existing record. As such, no evidentiary hearing or discovery is warranted, nor is it
necessary to appoint counsel. See Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir.
2003); Fed. R. Governing Section 2254 Cases 8(a) and 8(c). This is not a case where
the state court applied an improper legal standard and disputed issues of fact remain
for the federal district court. Cf. Milton v. Miller, 744 F.3d 660, 673 (10th Cir. 2014)
(remanding case to district court for evidentiary hearing where the state appellate
court’s decision did not survive scrutiny under § 2254(d)(1), and disputed issues of fact
existed that precluded the court of appeals from completing a de novo review of
petitioner’s ineffective assistance of appellate counsel claim).
V. ORDERS
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1), filed by Andrew Plancarte on November 25, 2014, is
DENIED and this action is DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith See Coppedge v. United States, 369 U.S.
438 (1962). If Applicant files a notice of appeal he must also pay the full $505
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. It is
28

FURTHER ORDERED that Applicant’s request for leave to amend, raised in his
Reply brief (Docket No. 35, at 2-5), is DENIED. It is
FURTHER ORDERED that the Memorandum of Law in Support of a Request for
an Evidentiary Hearing and Appointment of Counsel (Docket No. 37), and the
Memorandum of Law in Support of a Motion for Leave to Conduct Discovery and
Fact-Finding Procedures (Docket No. 38), are DENIED AS MOOT. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 36) is DENIED as moot. Applicant
paid the $5.00 filing fee on December 10, 2014 (ECF No. 7).
Dated June 29, 2015, at Denver, Colorado.
BY THE COURT:

R. Brooke Jackson
United States District Judge

29