Murphy v. Ploughe et al

Filing 30

ORDER TO DISMISS by Magistrate Judge Kristen L. Mix on 8/17/15. IT IS HEREBY ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 # 1 filed by Applicant, Anthony R. Murphy, is DENIED. IT IS FURTHER ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. IT IS FURTHER ORDERED that this case is DISMISSED with prejudice. (lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03429-KLM
ANTHONY R. MURPHY,
Applicant,
v.
MS. PLOUGHE; and
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO DISMISS
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This case is before this Court pursuant to the Order of Reference entered March 8,
2015, and the parties’ unanimous consent to disposition of this action by a United States
Magistrate Judge [##16, 18]1.
Applicant, Anthony R. Murphy, a state prisoner in the custody of the Colorado
Department of Corrections, currently is incarcerated at a community corrections center in
Denver, Colorado. Applicant initiated this action by filing pro se an Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2254, in which he challenges the validity of his
conviction and sentence in Jefferson County District Court Case No. 09CR2523.
On January 6, 2015, Magistrate Judge Gordon P. Gallagher directed Respondents
to file a Pre-Answer Response addressing the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A).

1

“[#16]” is an example of the convention I use to identify the docket number assigned to
a specific paper by the Court’s case management and electronic case filing system (CM/ECF). I
use this convention throughout this Order.

Respondents submitted a Pre-Answer Response on February 9, 2015 [#11]. Applicant filed
a Reply on March 23, 2015 [#12].
On April 14, 2015, I issued an Order dismissing the Application in part and directing
Respondents to file a Response as to the remaining claims. Respondents submitted a
Response on May 8, 2015 [#26]. No reply has been filed.
The Court must construe the Application liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not “assume the
role of advocate for the pro se litigant.” See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the habeas corpus action.
I. Relevant Factual and Procedural History
Evidence at trial established that a confidential police informant called a man he
knew as “Rick,” a drug dealer, and asked to buy cocaine. The dealer told the informant
where to meet his deliveryman. The dealer described the deliveryman and the car he
would be driving. Applicant, who met the description given by the dealer, arrived at the
designated location in a car that matched the dealer's description. The informant entered
the car. Before any drugs or money exchanged hands, police surrounded the car and
arrested Applicant. Twelve grams of crack cocaine, subdivided into twenty-seven individual
packets, were found inside the car in the driver’s side door pocket and on the floor in front
of the driver’s seat. All of the packets appeared to be roughly the same weight.
On March 8, 2010, Applicant proceeded to trial on one charge: possession with
intent to distribute a schedule II controlled substance, with a prior conviction. After a two
day trial, the jury found Applicant guilty; he later was sentenced to 16 years imprisonment.
2

Applicant filed a direct appeal to the Colorado Court of Appeals (CCA) raising three claims
[#11-5]. The CCA affirmed his conviction in People v. Murphy, (Colo. App. No. 10CA1552,
May 10, 2012) (unpublished) (Murphy I) [#11-9]. He filed a petition for certiorari in the
Colorado Supreme Court (CSC) [#11-7], which was denied by that court on September 17,
2012 [#11-6].
On November 30, 2011, Applicant filed a postconviction motion pursuant to Rule
35(c) of the Colorado Rules of Criminal Procedure, which was denied without a hearing.
Applicant appealed and on March 13, 2014, the CCA affirmed the lower court. People v.
Murphy (Colo. App. No. 13CA0233, March 13, 2014) (unpublished) (Murphy II) [#11-4].
Applicant’s petition for certiorari was denied by the CSC on November 24, 2014 [#11-2].
Applicant filed the instant action on December 19, 2014 wherein he raised the
following claims, as reorganized by Respondents in their Answer.
1.

Ineffective assistance of trial counsel (IAC), in that trial counsel failed to
obtain or introduce evidence in support of applicant’s “alternate theory” that
he happened be at the Walmart, and happened to get into the dealer’s car
after the dealer exited but just before the bust. Such defense evidence
included:
a.

b.

surveillance tapes of the Walmart parking lot in which the drug
transaction took place; and

c.

2.

evidence that two officers who searched the car and applicant’s
person did not find drugs;

applicant’s bank statements (as evidence of an innocent source of
cash found on his person at arrest); and

IAC in that counsel failed to object, on hearsay grounds, to unspecified
statements by:
a.

the CI who pretended to be the drug buyer; and

b.

at least one detective;
3

3.

Due process violations, in that the prosecution:
a.

b.

withheld exculpatory evidence, e.g., Walmart surveillance tapes,
recordings of the transaction and officer interactions; and

c.
4.

knowingly presented false testimony of the CI and officers involved in
the bust and subsequent searches;

prosecuted Applicant “maliciously”;

Fourth amendment violations, in that:
a.

b.

6.

the affidavit does not describe a specific person and car to be
searched, and does not include a nexus between Applicant and the
searched car; and

c.
5.

the reliability of the informant providing information for the affidavit for
Applicant’s warrantless arrest is unknown, as is the source of his or
her information;

the affidavit contains information known by the affiant to be false;

Violations of the Confrontation Clause, via the admission of hearsay from
detective Jungclaus, the CI and the dealer; and

A due process violation in the court’s failure to sustain a for-cause challenge to Juror
K.
On April 14, 2015, I dismissed claims 3, 4, and 5 as procedurally barred. I directed

Respondents to file an answer on the merits as to Claims 1, 2 and 6. Respondents filed
their Answer on May 8, 2015 [#20]. No reply has been filed.
II. Standard of Review
In the course of reviewing state criminal convictions in federal habeas corpus
proceedings, a federal court does not sit as a superstate appellate court. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Pulley v.
Harris, 465 U.S. 37, 41 (1984). "When a federal district court reviews a state prisoner's
habeas [application] pursuant to 28 U.S.C. § 2254 it must decide whether the [Applicant]
4

is ‘in custody in violation of the Constitution or laws or treaties of the United States.' The
court does not review a judgment, but the lawfulness of the [Applicant's] custody
simpliciter." Coleman v. Thompson, 501 U.S. 722, 730 (1991).
Specifically, the habeas corpus statute, 28 U.S.C. § 2254(d), provides that a writ of
habeas corpus may not be issued with respect to any claim that was adjudicated on the
merits in state court unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Applicant bears the burden of proof under § 2254(d). See Woodford
v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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 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 closelyrelated 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). A legal principle is “clearly
5

established” within the meaning of this provision only when it is embodied in a holding of
the Supreme Court. Thaler v. Haynes, 559 U.S. 43, 47 (2010). If there is no clearly
established federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See
Waddington v. Sarausad, 555 U.S. 179, 191 (2009).
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 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,
6

[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law for
a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Richter, 562 U.S. at 101 (internal quotation marks omitted). In conducting this analysis, the
Court “must determine what arguments or theories supported or . . . could have supported[]
the state court’s decision” and then “ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Id. 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.
This deference was explained in Renico v. Lett, 599 U.S. 766 (2010) where the
Supreme Court reviewed the Court of Appeals for the Sixth Circuit's grant of a writ of
habeas corpus to a defendant who was retried for murder following the trial judge's grant
of a mistrial after the jury had deliberated for at least four hours following a relatively short,
and far from complex, trial. The Michigan Supreme Court had concluded there was no
7

violation of the Double Jeopardy Clause because the trial court exercised its sound
discretion. The federal district court granted a writ of habeas corpus and the Sixth Circuit
affirmed, both concluding that the trial court's declaration of a mistrial constituted an abuse
of discretion because there was no manifest necessity. The Supreme Court reversed.
It is important at the outset to define the question before us. That question
is not whether the trial judge should have declared a mistrial. It is not even
whether it was an abuse of discretion for her to have done so-the applicable
standard on direct review. The question under AEDPA is instead whether the
determination of the Michigan Supreme Court that there was no abuse of
discretion was "an unreasonable application of . . . clearly established
Federal law." § 2254(d)(1).
Lett, 559 U.S. at 772-73. The Supreme Court further instructed:
It is not necessary for us to decide whether the Michigan Supreme Court's
decision—or, for that matter, the trial judge's declaration of a mistrial—was
right or wrong. The latter question, in particular, is a close one. As Lett
points out, at a hearing before the Michigan Court of Appeals, the state
prosecutor expressed the view that the judge had in fact erred in dismissing
the jury and declaring a mistrial. The Michigan Supreme Court declined to
accept this confession of error, and in any event—for the reasons we have
explained—whether the trial judge was right or wrong is not the
pertinent question under AEDPA.
Id. at 778, n.3 (emphasis added) (internal citation omitted). See also Schriro v. Landrigan,
550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough
that a federal habeas court, in its independent review of the legal question, is left with a
‘firm conviction' that the state court was ‘erroneous.'").
In making this determination, a federal court must accord a presumption of
correctness to a state court's factual findings, which a petitioner can rebut only by clear and
convincing evidence. 28 U.S.C. § 2254(e). Where a state court's factual findings are not
made explicit, a federal court's "duty is to begin with the [state] court's legal conclusion and
reason backward to the factual premises that, as a matter of reason and logic, must have
8

undergirded it." Campbell v. Vaughn, 209 F.3d 280, 289 (3d Cir. 2000). In determining
what implicit factual findings a state court made in reaching a conclusion, a federal court
must infer that the state court applied federal law correctly. Marshall v. Lonberger, 459
U.S. 422, 433 (1982). “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)).
For federal habeas claims not adjudicated on the merits in state-court proceedings,
the Court must exercise its independent judgment. McCracken v. Gibson, 268 F.3d 970,
975 (10th Cir. 2001). Any state-court findings of fact that bear upon the claim are entitled
to a presumption of correctness rebuttable only by clear and convincing evidence. Hooks
v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999) (applying § 2254(e)(1)’s presumption of
correctness to state-court factual findings bearing upon the claim, even though the claim
was not adjudicated on the merits by the state court).
III. Ineffective Assistance of Counsel
In claims 1 and 2, Applicant asserts claims of ineffective assistance of counsel. The
Sixth Amendment guarantees criminal defendants effective assistance of counsel. The
Supreme Court has formulated a two-part test for determining whether counsel rendered
constitutionally ineffective assistance: 1) counsel’s performance was unreasonable; and
2) counsel’s unreasonable performance actually prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). The first prong of the Strickland test requires a
defendant to establish that his attorney's representation fell below an objective standard
of reasonableness by committing errors so serious that he or she was not functioning as
“counsel” guaranteed by the Sixth Amendment. Id. at 688. The second prong requires a
9

defendant to demonstrate that counsel's errors deprived him of a fair trial and the result
was unfair and unreliable. Id. at 689. A defendant is not entitled to relief unless he makes
both showings. Id. at 687. Moreover, “[a] court need not first determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed.” Id. at 694. The
Strickland standard applies equally to appellate counsel. Smith v. Robbins, 528 U.S. 259,
285 (2002). Colorado applies the same test for ineffective assistance of counsel as the
Strickland test used in federal courts. See Davis v. People, 871 P.2d 769, 772-79 (Colo.
1994).
With regard to the first criterion, counsel's effectiveness is measured objectively
considering all the circumstances. Strickland, 466 U.S. at 687-88. In evaluating counsel's
performance, the Court must “indulge a strong presumption” that counsel's challenged
actions might be considered sound strategy under the circumstances. Id. at 689. Thus,
counsel's strategic choices will not be second guessed by post hoc determinations that a
different trial strategy would have fared better. The relevant inquiry is not whether counsel
was prudent, appropriate, or perfect; rather, the focus is simply to ensure that the
defendant received a fundamentally fair trial. Id.
With respect to the second criterion, to establish prejudice, the defendant must
demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. Prejudice must be
evaluated in light of the totality of the evidence presented at trial and a verdict only weakly
10

supported by the record is more likely to have been affected by errors than one with
overwhelming record support.
In analyzing Applicant’s claims under the two-part test announced in Strickland, this
Court must apply the standards set forth in 28 U.S.C. § 2254(e) concerning the
presumption of correctness applicable to state court factual findings. The question of
effectiveness of counsel under Strickland is a mixed question of law and fact; it requires the
application of a legal standard to the historical, fact determinations. In this regard, a state
court's finding that counsel had a trial strategy is a finding of fact to which the presumption
applies. Bryan v. Mullin, 335 F.3d 1207, 1221 n.17 (10th Cir. 2003). Likewise, a state
court's determination that a decision was a tactical one is a question of fact. Id.
The Supreme Court recently reiterated the difficulty of prevailing on an
ineffectiveness claim on habeas review.
The pivotal question is whether the state court's application of the Strickland
standard was unreasonable. This is different from asking whether defense
counsel's performance fell below Strickland's standard. Were that the
inquiry, the analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a criminal conviction
in a United States district court. Under AEDPA, though, it is a necessary
premise that the two questions are different. For purposes of § 2254(d)(1),
“an unreasonable application of federal law is different from an incorrect
application of federal law.” A state court must be granted a deference and
latitude that are not in operation when the case involves review under the
Strickland standard itself.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotations and citations omitted).
The Court further instructed:
Surmounting Strickland's high bar is never an easy task.
An
ineffective-assistance claim can function as a way to escape rules of waiver
and forfeiture and raise issues not presented at trial, and so the Strickland
standard must be applied with scrupulous care, lest intrusive post-trial inquiry
threaten the integrity of the very adversary process the right to counsel is
meant to serve. Even under de novo review, the standard for judging
11

counsel's representation is a most deferential one. Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of materials
outside the record, and interacted with the client, with opposing counsel, and
with the judge. It is all too tempting to second-guess counsel's assistance
after conviction or adverse sentence. The question is whether an attorney's
representation amounted to incompetence under prevailing professional
norms, not whether it deviated from best practices or most common custom.
Establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult. The standards created by Strickland
and § 2254(d) are both highly deferential and when the two apply in tandem,
review is doubly so. The Strickland standard is a general one, so the range
of reasonable applications is substantial. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). 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.
Harrington, 562 U.S. at 105 (internal quotations and citations omitted) (emphasis added).
In his first ineffective assistance claim, Applicant asserts that trial counsel failed to
obtain or introduce evidence in support of applicant’s “alternate theory” that he happened
be at the Walmart, and happened to get into the dealer’s car after the dealer exited but just
before the bust. Such defense evidence included:
a.

evidence that two officers who searched the car and Applicant’s
person did not find drugs;

b.

surveillance tapes of the Walmart parking lot in which the drug
transaction took place; and

c.

Applicant’s bank statements (as evidence of an innocent source of
cash found on his person at arrest).

In addition, he claimed that his counsel rendered ineffective assistance by failing to
object, on hearsay grounds, to statements by:
a.

the CI who pretended to be the drug buyer; and

b.

at least one detective.
12

In its review of this claim, the CCA made the following determination with respect
to these claims.
Defendant's motion alleged that trial counsel had failed to: (1) investigate the
prosecution's evidence; (2) present alternate defense theories to the jury; (3)
assert the affirmative defense of entrapment; (4) introduce evidence that
would have contradicted the prosecution's theory that the money found in his
possession was from the sale of drugs; (5) introduce evidence that would
have showed he did not own or operate the vehicle in which the drugs were
found; (6) obtain exculpatory evidence, including police communications
before, during, and after the underlying incident and video surveillance tapes
from a Walmart store; (7) call two police officers who were present during the
underlying incident to testify at trial to contradict the prosecution's witness;
(8) "clarify witness testimony" and preclude "negative inferences drawn by
the [p]rosecution"; (9) prepare for cross-examination of witnesses; and (10)
object to the prosecution's use of prejudicial statements and hearsay
testimony.
First, the substance of defendant's arguments relates to counsel's strategic
or tactical trial decisions. See Arko v. People, 183 P.3d 555, 558 (Colo.
2008) ("Examples of ... strategic decisions include 'what witnesses to call .
. ., whether and how to conduct cross-examination, what jurors to accept or
strike, and what trial motions to make."' (quoting People v. Curtis, 681 P.2d
504, 511 (Colo. 1984))). Defense counsel has final authority to make
decisions that are strategic or tactical in nature even if his client disagrees.
Id.; see Steward v. People, 179 Colo. 31, 34, 498 P.2d 933, 934 (1972)
("Defense counsel stands as captain of the ship in ascertaining what
evidence should be offered and what strategy should be employed in the
defense of the case."). "[J]udicial scrutiny of counsel's performance must be
highly deferential, evaluate particular acts and omissions from counsel's
perspective at the trial, and indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance."
Ardolino, 69 P.3d at 76.
We are not persuaded that defendant's assertions of counsel's allegedly
deficient strategic or tactical trial decisions were sufficient to warrant relief.
See id. ("Strategic choices made after thorough investigation of the law and
facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation.").
Moreover, we agree with the district court that defendant's ineffective
assistance of counsel claim was supported only by bare, conclusory
assertions. See People v. Osorio, 170 P.3d 796, 799 (Colo. App. 2007) ("A
13

trial court may . . . deny relief where the allegations of counsel's deficient
performance are merely conclusory, vague, or lacking in detail."); People v.
Venzor, 121 P.3d 260, 262 (Colo. App. 2005) (a Crim. P. 35(c) motion may
be denied without a hearing where "the claims are bare and conclusory in
nature, and lack supporting factual allegations"). Defendant did not indicate
( 1) the evidence or defense theories counsel should have investigated and
presented; (2) the evidence that counsel should have presented to prove he
had been entrapped; (3) how counsel's failure to introduce evidence
regarding the origin of the money in his possession or his ownership and
operation of the vehicle would have been relevant to his defense; (4) the
exculpatory evidence that counsel would have uncovered in the police
communications or surveillance tapes; (5) the testimony that counsel would
have elicited from the police officers to contradict the prosecution's
witnesses; (6) the testimony that counsel needed to clarify; (7) the
cross-examination for which counsel was unprepared; or (8) the prejudicial
statements and hearsay testimony to which counsel had failed to object. See
Osorio, 170 P.3d at 800 ("Other than a bare assertion of errors, no detail is
provided to explain why these actions [of trial counsel] were deficient or to
place them in context. For example, [the] defendant does not reveal what the
cross-examination of any witnesses would have revealed.").
Also, defendant did not explain why, in the absence of counsel's allegedly
deficient performance, the result of the proceeding would have been
different. See People v. Gandiaga, 70 P.3d 523, 526 (Colo. App. 2002) ("[I]f
a court determines that a defendant failed to affirmatively demonstrate
prejudice, it may resolve [an ineffective assistance of counsel] claim on that
basis alone."). Instead, he baldly asserted that, but for counsel's
deficiencies, he would have been "exonerated."
In his opening brief, defendant appears to expand on the arguments made
in support of his ineffective assistance of counsel claim. However, we will not
address issues not raised in the district court. See People v. Salazar, 964
P.2d 502, 507 (Colo. 1998).
[#11-4] at 6-10.
Here, the Colorado Court of Appeals’ determinations as to Applicant’s ineffective
assistance of counsel claims are not an unreasonable application of the Strickland
standard. Specifically, in Strickland, the Supreme Court has instructed that:
. . . [a] convicted defendant making a claim of ineffective assistance must
identify the acts or omissions of counsel that are alleged not to have been the
result of reasonable professional judgment. The court must then determine
whether, in light of all the circumstances, the identified acts or omissions
14

were outside the wide range of professionally competent assistance. In
making that determination, the court should keep in mind that counsel's
function, as elaborated in prevailing professional norms, is to make the
adversarial testing process work in the particular case. At the same time, the
court should recognize that counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.
...
. . . [S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations
on investigation. In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes particular
investigations unnecessary. In any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel's
judgments.
Strickland, 466 U.S. at 690-691.
As noted by the Colorado Court, a defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.
On direct appeal, the Colorado Court of Appeals (CCA) summarized the evidence
supporting applicant’s conviction for possession of controlled substance (cocaine) with
intent to distribute as follows:
Evidence at trial established that a confidential police informant called a man
he knew as a drug dealer and asked to buy cocaine. The dealer told the
informant where to meet his deliveryman. He described that person and the
car he would be driving.
Defendant, who met the description given by the dealer, arrived at the
designated location in a car that matched the dealer’s description. The
informant entered the car. Before any drugs or money exchanged hands,
police surrounded the car and arrested defendant. Twelve grams of crack
15

cocaine, subdivided into twenty-seven individual packets, were found inside
the car near the driver’s seat.
[#11-8] at 3. Simply stated, none of Applicant’s allegations of ineffectiveness refute this
evidence, which is more than sufficient to sustain his conviction for possession with intent
to distribute.
Moreover, the failure to argue an entrapment defense did not constitute ineffective
assistance. Colo. Rev. Stat. § 18-1-709 Entrapment, provides as follows.
The commission of acts which would otherwise constitute an offense is not
criminal if the defendant engaged in the proscribed conduct because he was
induced to do so by a law enforcement official or other person acting under
his direction, seeking to obtain evidence for the purpose of prosecution, and
the methods used to obtain that evidence were such as to create a
substantial risk that the acts would be committed by a person who, but for
such inducement, would not have conceived of or engaged in conduct of the
sort induced.
Merely affording a person an opportunity to commit an offense is not entrapment
even though representations or inducements calculated to overcome the offender's fear of
detection are used. People v. Jackson, 627 P.2d 741, 745 (Colo. 1981). In other words,
the plain wording of the statute indicates that the defense of entrapment cannot be
established in those cases where the police merely furnish the defendant with an
opportunity to commit a crime. Id. The defense of entrapment is available only where the
defendant shows that law enforcement agents, in fact, induce, instigate, and cause a
criminal offense to be committed. Id.
Here, the evidence showed that Applicant met the description given by his dealer,
arrived at the designated location in a car that matched the dealer’s description, with a
substantial amount of cocaine in the car. The simple fact that Applicant was not the
targeted dealer named “Rick” does not support an entrapment defense. Moreover, this fact
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was presented to the jury. Accordingly, his counsel did not render ineffective assistance
for failing to argue an entrapment defense.
After reviewing the record, the Court finds that the Colorado Court of Appeals
applied the appropriate factors and did not reach an unreasonable conclusion. Accordingly,
the conclusion of the Colorado Court of Appeals that trial counsel did not render ineffective
assistance is not an unreasonable application of Supreme Court precedent, nor an
unreasonable determination in light of the facts presented. Therefore, Applicant is not
entitled to habeas relief on his ineffective assistance of counsel claims.
IV. Juror Challenge
Applicant’s final claim alleges a due process violation in the court’s failure to have
sustained a for-cause challenge to Juror K.

Specifically, Applicant argues that his

constitutional rights were violated when the trial court erroneously refused to excuse Juror
K for cause and he was required to exhaust his peremptory challenges by using one to
excuse Juror K.
The Supreme Court squarely addressed this issue in United States v. MartinezSalazar, 528 U.S. 304, 311 (2000) where it held that, although peremptory challenges are
“auxiliary” to the right to a fair trial, they are not themselves “of federal constitutional
dimension.” Thus, the Court held that a defendant’s use of a peremptory challenge to
remove a juror he claimed should have been removed for cause does not give rise to a
federal constitutional violation. Id. See also Rivera v. Illinois, 556 U.S. 148 (2009)
(“Because peremptory challenges are within the States' province to grant or withhold, the
mistaken denial of a state-provided peremptory challenge does not, without more, violate
the Federal Constitution.”).
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In Applicant’s trial, no member of the jury as finally composed was removable for
cause. Thus, there was no violation of Applicant’s Sixth Amendment right to an impartial
jury or his Fourteenth Amendment right to due process. That he might have used the
peremptory strike used against Juror K against some other juror does not raise a
constitutional matter. Therefore, Applicant is not entitled to federal habeas relief on this
claim.
V. Conclusion
Accordingly,
IT IS HEREBY ORDERED that the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 [#1] filed by Applicant, Anthony R. Murphy, is DENIED.
IT IS FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice.
Dated: August 17, 2015

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