Herrera v. Falk, et al

Filing 41

ORDER denying 1 Application for Writ of Habeas Corpus filed by Kevin R. Herrera, dismissing the petition with prejudice, and denying issuance of a certificate of appealability. Entered by Judge Raymond P. Moore on 11/30/2015. (cpear)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Case No. 15-cv-00136-RM
KEVIN R. HERRERA,
Applicant,
v.
JOHN FALK, Sterling Correctional, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on petitioner Kevin R. Herrera’s application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner challenges his convictions
on the grounds that he received ineffective assistance of appellate counsel and that prosecutorial
misconduct improperly influenced the indictment returned by the grand jury. (ECF No. 1.) For
the following reasons, the Court (1) DENIES petitioner’s application; (2) DISMISSES the
petition with prejudice; and (3) DENIES issuing a certificate of appealability.
I.

RELEVANT BACKGROUND
Applicant’s convictions arose out of an incident that occurred in May, 1998 when, as

described by the Colorado Court of Appeals,
[petitioner] and two of his cousins (D.T. and A.S.) conspired to take revenge upon
a person who had shot [petitioner’s] brother. The three relatives drove up in a
green Toyota RAV4 alongside a red pickup truck in which two men, one of whom
was the person who had shot [petitioner’s] brother, were sitting; gunshots directed
at the pickup truck killed one man and seriously wounded the other (R.M.).
[Petitioner] and his brother were members of one gang, and the person who shot
defendant’s brother was a member of a rival gang.
1

(ECF No. 10-6, People v. Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished)).
Petitioner was indicted by a grand jury on September 29, 1999, on charges of first degree
murder with deliberation, first degree murder with extreme indifference, conspiracy to commit
first degree murder, and criminal attempt to commit first degree murder. Petitioner pled not
guilty to these counts and proceeded to trial in November, 2003. On December 11, 2003, a jury
found petitioner guilty on the charges of conspiracy to commit first degree murder, being an
accessory to attempted murder in the first or second degree of R.M., and being an accessory to
murder in the first or second degree of the deceased victim, but could not reach a verdict on the
charges of first degree murder or criminal attempt to commit first degree murder and a mistrial
was declared as to those counts. The court sentenced petitioner to 40 years in the department of
corrections on the conspiracy to commit murder charge and four years on each accessory count,
with each accessory count to run concurrent with one another but consecutive to the conspiracy
count.
Petitioner appealed his convictions, raising the single issue that the trial court erroneously
admitted the hearsay statement of D.T. that petitioner argued was not in furtherance of the
conspiracy. (ECF No. 10-2. App. Br. Mar. 31, 2006.) The Colorado Court of Appeals affirmed.
(ECF No. 10-3, People v. Herrera, 04CA0558 (Colo. App. May 24, 2007) (unpublished)).
Petitioner subsequently filed a pro se motion for post-conviction relief under Colo. R.
Crim. P. 35(c). (ECF No. 10-1, Case Activities Sheet at 19.) The Colorado district court
appointed counsel for petitioner and conducted several hearings on the motion. (ECF No. 10-6,
People v. Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 4.) The district
court denied petitioner’s motion, (ECF No. 10-1, Case Activities Sheet at 14), the Colorado
Court of Appeals affirmed that order, (ECF No. 10-6, People v. Herrera, 12CA0312 (Colo. App.

2

May 22, 2012) (unpublished)), and the Colorado Supreme Court denied certiorari. (ECF No. 108, Herrera v. People, 2014SC503 (Colo. Supr. Ct. Dec. 22, 2014) (unpublished)).
Petitioner previously initiated two actions seeking habeas review under 28 U.S.C. §2254,
both of which were dismissed without prejudice for failure to exhaust petitioner’s state court
remedies. Herrera v. Jones et al., 08-cv-01575-BNB, 2008 WL 4642216 (D. Colo. Oct. 8, 2008)
(unpublished); Herrera v. Jones et al., 08-cv-02761-CMA (D. Colo. May 25, 2011)
(unpublished). Petitioner filed the present habeas petition on January 20, 2015. (ECF No. 1.)
An order was entered by U.S. Magistrate Judge Gordon Gallagher on April 22, 2015 finding that
petitioner’s application was timely and that all claims had been exhausted at the state court. (ECF
No. 21.)
Petitioner’s current habeas petition raises two claims of error. First, with respect to
several issues omitted from his direct appeal, petitioner argues ineffective assistance of appellate
counsel under Strickland v. Washington, 466 U.S. 668 (1984). Specifically, petitioner claims
that appellate counsel erred by failing to assert that petitioner’s constitutional rights were
violated because he never received notice that the prosecution would seek an aggravated
sentence. Petitioner also claims that appellate counsel erred by failing to challenge whether
petitioner was denied his state and federal right to a speedy trial. Finally, petitioner claims that
appellate counsel erred by failing to challenge the admission of certain out-of-court statements
made during trial under the Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36
(2004).
Petitioner’s second claim of error is that of prosecutorial misconduct. Petitioner argues
that during the grand jury proceedings, the prosecutor misrepresented that a shell cartridge
recovered from the vehicle used in the victim’s murder matched a gun owned by petitioner’s

3

brother and obtained by petitioner just before its use in the murder. Petitioner argues that the
alleged prosecutorial misconduct undermined the grand jury’s finding of probable cause.
II.

LEGAL STANDARDS
A.

Pro Se Status

The Court must construe the papers filed by petitioner liberally because he is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v.
United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). 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, 935 F.2d at 1110. A court may not assume that a pro se applicant can prove facts
that have not been alleged, or that a respondent has violated laws in ways that an applicant has
not alleged. See Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983). The Court should not act as an advocate for a pro se applicant. See
Hall, 935 F.2d at 1110. An applicant’s pro se status does not entitle him to an application of
different rules of civil procedure. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
B.

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).
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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 pursuant to § 2254(d)(1) is whether the petitioner 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 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.
5

House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an objective one.
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. It 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).
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 fair minded jurists could disagree
that those arguments or theories are inconsistent with the holding in a prior decision of [the
Supreme] Court.” Id. “[E]ven a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (citation omitted). “Section 2254(d) reflects the view that
habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.” Id. (internal quotations marks and
citation omitted).
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. In other words,
[a]s 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
6

court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair minded
disagreement.
Richter, 131 S. Ct. at 786-87.
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 a court
to grant a writ of habeas corpus only if the state court decision was based on an unreasonable
determination of the facts in light of the evidence presented. Pursuant to § 2254(e)(1), the Court
must presume that the state court’s factual determinations are correct, see Sumner v. Mata, 455
U.S. 591, 592-93 (1982), and petitioner bears the burden of rebutting the presumption by clear
and convincing evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). “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)).
A claim, however, 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. Richter, 131 S. Ct. at 784.
(“[D]etermining 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.”) (citations omitted). Furthermore, “[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 784-85. Even “[w]here a state court’s decision is
unaccompanied by an explanation, the habeas applicant’s burden still must be met by showing
there was no reasonable basis for the state court to deny relief.” Id. at 784.

7

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 [it] that [the] 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. Likewise, the Court applies the same deferential standard of review when a state
court adjudicates a federal issue relying solely on a state standard that is at least as favorable to
the petitioner as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196 (10th Cir.
2005). 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.

ANALYSIS
A. Ineffective Assistance of Appellate Counsel
The proper standard for assessing a claim of ineffectiveness of appellate counsel is that

set forth in Strickland, 466 U.S. 668. To prevail under Strickland, Petitioner must show both that
(1) his counsel’s performance was deficient (i.e., that “counsel’s representation fell below an
objective standard of reasonableness”), 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
of the proceeding would have been different”). Id. at 688, 694.
When considering whether a claimant has established deficient performance, “[a] court
considering a claim of ineffective assistance must apply a ‘strong presumption’ that counsel’s

8

representation was within the ‘wide range’ of reasonable professional assistance.” Harrington,
562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). “The challenger’s burden is to show ‘that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 687).
When considering prejudice, “a challenger 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 104 (quoting Strickland, 466 U.S. at 694). “It is not enough ‘to show that the
errors had some conceivable effect on the outcome of the proceeding,’” but rather those errors
“must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’”
Id. (quoting Strickland, 466 U.S. at 687).
When applying the Strickland standard in the context of an appellate counsel’s actions,
the reviewing court examines the merits of the omitted issue. Neill v. Gibson, 278 F.3d 1044,
1057 (10th Cir. 2001); Hooks v. Ward, 184 F.3d 1206, 1221 (10th Cir. 1999). “If the omitted
issue is so plainly meritorious that it would have been unreasonable to winnow it out even from
an otherwise strong appeal, its omission may directly establish deficient performance.” Malicoat
v. Mullin, 426 F.3d 1241, 1248-49 (10th Cir. 2005). However,
the Supreme Court has recognized that appellate counsel who filed a merits brief
need not (and should not) raise every nonfrivolous claim, but rather may select
from among them in order to maximize the likelihood of success on appeal.
Indeed, the winnowing out of weaker arguments so that counsel may focus the
court’s attention on those more likely to prevail is the hallmark of effective
advocacy.
Id. at 1248-49 (internal citations and quotation marks omitted).
Further, as described above, this Court’s review of petitioner’s ineffective assistance of
counsel claim is further constrained due to the fact that it has previously been reviewed—and
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rejected—by the Colorado Court of Appeals. See Ellis v. Hargett, 302 F.3d 1182, 1187 (10th
Cir. 2002). “As a federal habeas court we may reverse only if that holding was ‘contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.’” Id. (quoting 28 U.S.C. § 2254(d)(1) (2000) (defining
standard of review of state-court decisions of law in habeas proceedings subject to Antiterrorism
and Effective Death Penalty Act of 1996)). “The standards created by Strickland and §2254(d)
are both highly deferential . . . and when the two apply in tandem, review is doubly so.”
Harrington, 562 U.S. at 105 (internal citations and quotation marks omitted). “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.
1. Aggravated Range Sentence
At sentencing, petitioner claims that he “was not notified on record in the courtroom, he
was not notified by separate filing . . . and he was not notified of aggravation within [the]
charging document” with regards to the prosecutor’s intent to seek an enhanced sentence based
on the fact that petitioner was on probation at the time the shooting took place. (ECF No. 38 at
10.) Petitioner further claims that the “substantive charge [under which he was indicted] did not
expose him to aggravated sentencing.” (Id.) (emphasis removed). As such, petitioner claims that
his constitutional right to due process was violated because he was not given notice of his
potential for an increased sentence prior to the sentencing hearing, and that his appellate counsel
was therefore ineffective in failing to raise this issue on appeal.
In denying this claim in the appeal of petitioner’s 35(c) motion for post-conviction relief,
the Colorado Court of Appeals found that appellate counsel could not “have successfully argued
that the trial court erred by imposing an aggravated range sentence in violation of Apprendi

10

because his prior conviction was not charged in the indictment.” (ECF No. 10-6, People v.
Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 15.) The Colorado Court of
Appeals stated that “[b]ecause Apprendi preserves the rule in Almendarez-Torres . . . that prior
convictions are sentencing factors and not elements of the offense and thus do not need to be
charged in an indictment, the trial court properly considered defendant’s prior felony conviction
in sentencing him.” (Id.)
In Apprendi v. New Jersey, the Supreme Court held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proven beyond a reasonable doubt.” 530 U.S. 466,
490 (2000) (emphasis added). The Supreme Court reaffirmed this holding in Blakely v.
Washington, 542 U.S. 296, 301 (2004). In both of the foregoing decisions, and as acknowledged
by the Tenth Circuit, the rule announced by the Supreme Court excludes “the fact of a prior
conviction” from its requirement that all facts impacting the length of a defendant’s prison
sentence be found beyond a reasonable doubt by a jury. Hunter v. Werholtz, 505 F.3d 1080,
1082 (10th Cir. 2007); see also Almendarez-Torres v. United States, 523 U.S. 224, 243 (1998)
(“[R]ecidivism . . . is a traditional, if not the most traditional basis for a sentencing court’s
increasing an offender’s sentence.); United States v. Booker, 543 U.S. 220, 244 (2005) (holding
that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by a plea of guilty . . . must be admitted by the defendant or
proved to a jury beyond a reasonable doubt”) (emphasis added); United States v. Moore, 401
F.3d 1220, 1223-24 (10th Cir. 2005); United States v. Delacruz-Soto, 414 F.3d 1158, 1164 n.2
(10th Cir. 2005).

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As announced by the Supreme Court in Apprendi and Blakely, and as acknowledged by
the Tenth Circuit, the fact of petitioner’s prior conviction was not of the type required to be
stated in the charging document against petitioner, nor was it constitutionally required that
petitioner be given notice of the aggravating effect of his prior conviction prior to sentencing.
Applying the standard of review set forth in 28 U.S.C. § 2254(d), the Court finds that the
Colorado court did not err in declining to grant petitioner’s claim of ineffective assistance of
appellate counsel on this ground. 1
2. Speedy Trial
Petitioner next argues that his appellate counsel was ineffective in failing to appeal the
issue of whether petitioner’s trial was had outside of the speedy trial time limits set forth under
Colorado statute. The Colorado statute provides that
(1) Except as otherwise provided in this section, if a defendant is not brought to
trial on the issues raised by the complaint, information, or indictment within six
months from the date of the entry of a plea of not guilty . . . the pending charges
shall be dismissed, and the defendant shall not again be indicted, informed
against, or committed for the same offense, or for another offense based upon the
same act or series of acts arising out of the same criminal episode.
....
(5.1) If a trial date is offered by the court to a defendant who is represented by
counsel and neither the defendant nor his counsel expressly objects to the offered
date as being beyond the time within which such trial shall be had pursuant to this
section, then the period within which the trial shall be had is extended until such
trial date and may be extended further pursuant to any other applicable provisions
of this section.
§ 18-1-405, C.R.S. 2013.

1

Petitioner’s argument that his trial counsel was not entitled to stipulate on Petitioner’s behalf that
petitioner was on probation at the time of the offense has no merit. Regardless of whether petitioner’s
trial counsel made such concession, this fact was independently verified to the trial court through the presentencing report, “which reflected defendant’s prior felony conviction and probationary sentence, and
neither defendant nor defense counsel objected to the accuracy of” that report. (ECF No. 10-6, People v.
Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 14.) Indeed, petitioner does not dispute
in his habeas petition the fact that he was on probation for a prior felony conviction at the time of the
offense for which he was convicted.

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Petitioner’s trial counsel testified at a hearing on petitioner’s 35(c) motion that
petitioner’s trial had been set immediately after petitioner entered his not guilty plea. (ECF No.
23, State Court Records, Hearing Transcript (“Tr.”) Mar. 16, 2011, at 8-9.) Subsequent to the
plea hearing, counsel for petitioner and for the state went back to the trial judge’s chambers
agreed on a trial date together, off the record, with the assistance of the judge’s clerk. Id.
Although petitioner was present for the plea hearing, petitioner was not present in chambers
when the trial date was set, as petitioner was in custody at that time and had been taken by the
court deputies back into holding when the trial date was being set. (Id. at 9.) At another hearing
on the 35(c) motion, petitioner testified that his trial “was set outside the speedy trial without my
consent”; that his attorneys had not advised him about waiving his right to a speedy trial nor had
they told him that they needed to set the trial date more than six months after his arraignment in
order to be ready for trial. (ECF No. 23, State Court Records, Tr. Mar. 23, 2011, at 14.)
Petitioner’s trial commenced on November 17, 2003, more than one month after the six-month
time period had passed from the time of his not guilty plea.
The Colorado Court of Appeals affirmed the denial of petitioner’s 35(c) motion for postconviction relief on this ground, finding that “[b]y its terms, the waiver provision of section 181-405(5.1) is applicable in every case unless the defense makes a speedy trial objection at the
time a trial date is offered.” (ECF No. 10-6 at 17-21.) Relying upon that court’s own prior case
law, the Colorado Court of Appeals went on to posit that “[n]othing in the plain language of
section 18-1-405(5.1) precludes an off-the-record trial setting . . . . [n]or does the section specify
that the defendant or defense counsel must be physically present at the time the trial setting
occurs.” Id. (citing People v. Franco, 74 P.3d 357, 359 (Colo. App. 2002)); see also People v.
Allen, 885 P.2d 207, 211 n.7 (Colo. 1994) (en banc) (criminal defendant waived his right to

13

speedy trial under § 18-1-405(5.1) where court clerk had scheduled trial date with defense
counsel by teleconference). Based on this premise, the court found that “it logically follows that
defense counsel may set the trial date outside the speedy trial period in defendant’s absence at an
off-the-record trial setting pursuant to section 18-1-405(5.1).” (ECF No. 10-6, People v.
Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 19.)
Although there is case law from the Colorado Court of Appeals addressing these issues,
the Colorado Supreme Court has not explicitly ruled on whether Section 18-1-405(5.1) would
impose the requirements that trial settings be on the record or that the defendant be present. As a
federal court analyzing the contours of a Colorado state statute, this Court is bound to follow the
“rule of law” announced and relied upon by the Colorado Court of Appeals “unless [it is]
convinced by other persuasive data” that the Colorado Supreme Court would decide otherwise.
Hicks v. Feiock, 485 U.S. 624, 630 n. 3 (1988). “This is the more so where, as in this case, the
highest court has refused to review the lower court’s decision rendered in one phase of the very
litigation which is now prosecuted by the same parties before the federal court.” Id. (quoting
West v. Am. Telephone & Telegraph Co., 311 U.S. 223, 237-38 (1940)); (ECF No. 10-8, Herrera
v. People, 2014SC503 (Colo. Supr. Ct. Dec. 22, 2014) (denying petition for writ of certiorari en
banc); see also Taylor v. Phelan, 9 F.3d 882, 887 (10th Cir. 1993) (“As a federal court, we are
generally reticent to expand state law without clear guidance from [the state’s] highest court . . .
.”); Rael v. Sullivan, 918 F.2d 874, 876 (10th Cir. 1990) (State courts are the ultimate expositors
of state law.).
Here, a plain reading of the statute would militate in favor of the interpretation that
Section 18-1-405(5.1) does not have any requirement that the trial setting be made on the record
or that the defendant be present when the setting is made. The Colorado Court of Appeals’

14

interpretation of the statute comports with this straight-forward reading. Franco, 74 P.3d at 35859. Although the Colorado Supreme Court has not spoken directly on this issue, this Court
concludes that, if faced with the same question, that court would reach the same conclusion.
Hicks, 485 U.S. at 630 n. 3.
Indeed, the Colorado Supreme Court intimated as much in People v. Allen, where it
found that a criminal defendant had waived his right to speedy trial under § 18-1-405(5.1) 885
P.2d at 211 n.7. In that case, the clerk of court had contacted defense counsel by phone to set the
trial date. After the date had been set with defense counsel’s knowledge and consent, “[i]t was
not until the day of trial that Allen’s attorney objected to the trial date on speedy-trial grounds.”
Id. Based on these facts, the Colorado Supreme Court found that “under § 18-1-405(5.1), Allen
waived his ability to claim that his right to speedy trial had been violated.” Id. Here, as in Allen,
petitioner’s defense counsel was present when trial was set and did not object at that time.
Regardless of whether petitioner was present during the setting of the trial date, the fact that
petitioner’s counsel waited until the relevant time period had passed causes petitioner’s claim of
a violation of his speedy trial rights to be waived. Id.; § 18-1-405(5.1), C.R.S. 2013.
Further, looking at the facts in this case, it appears that Plaintiff did have ample notice
that his trial was set to take place outside of the speedy trial time limits and chose not to timely
object. Based on the undisputed facts as found by the Colorado Court of Appeals, petitioner
“appeared in court for several pretrial hearings during which the trial date was mentioned, but
neither defendant nor defense counsel made any speedy trial objection.” 2 (ECF No. 10-6, People
v. Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 19.) Clearly, petitioner did
2

Although petitioner argues that he was ordered by the district court not to raise objections personally,
but only through his counsel, the undisputed facts show that his counsel was present and able to raise the
same objection on petitioner’s behalf. Surely there was no such court order prohibiting Petitioner from
instructing his counsel to do so.

15

have personal notice that his trial was set to occur outside of the speedy trial period entitled to
him under § 18-1-405(5.1), yet neither he nor his counsel rose an objection to the trial setting
until after that time had already passed. Petitioner thus waived his rights to a speedy trial by the
terms of that statute.
Because petitioner’s claim that his speedy trial rights were violated would not have a
reasonable chance of success on appeal, it was not folly that his appellate counsel chose not to
raise it. Applying the standard of review set forth in 28 U.S.C. § 2254(d), the Court finds that
the Colorado court did not err in declining to grant petitioner’s claim of ineffective assistance of
appellate counsel on this ground.
3.Confrontation Clause 3
Petitioner argues that his appellate counsel should have asserted that the trial court
violated petitioner’s confrontation right by admitting the out-of-court statements of D.T. and
R.M.
In Crawford, the Supreme Court ruled that “testimonial” statements by a witness not
present at trial may only be admitted if the witness (1) is unavailable and (2) was subject to
cross-examination when the statement was made. 541 U.S. at 59. This test was divined to
satisfy the Confrontation Clause, which prohibits the admission of testimonial hearsay against a
defendant except under certain circumstances. Id. at 68-69. The Tenth Circuit has “held that a
testimonial statement is a statement that a reasonable person in the position of the declarant
would objectively foresee might be used in the investigation or prosecution of a crime.” U.S. v.
Yeley-Davis, 632 F.3d 673, 679 (10th Cir. 2011) (internal citation and quotation omitted). “An
accuser who makes a formal statement to government officers bears testimony in a sense that a
3

Respondents do not argue that Crawford would not apply retroactively to petitioner’s appeal, and this
Court finds that it does so apply under Colorado law. People v. Compan, 100 P.3d 533, 537 (Colo. App.
2004), aff’d, 121 P.3d 876 (Colo. 2005).

16

person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51. To
the extent that the statement would not be considered testimonial, the Supreme Court in Davis v.
Washington, 547 U.S. 813 (2006), “placed the question of the admissibility of nontestimonial
hearsay statements entirely outside the confines of the Confrontation Clause . . . .” U.S. v.
Smalls, 605 F.3d 765, 774 (10th Cir. 2010).
a. R.M.’s Statements
The Colorado Court of Appeals analyzed petitioner’s claim regarding R.M.’s statements
as follows:
The police officer who interviewed R.M. at the hospital after the shooting testified
that R.M. stated that he and the deceased victim were traveling in a red truck
southbound on Academy Boulevard, approaching Palmer Park, where traffic had
stopped; that as the truck stopped, R.M. heard several gunshots and “ducked
down in the middle of the seat kind of ducking his head in under the dashboard
and felt a pain in his left hand and then on his left side and then looked up and
saw a dark green utility vehicle like a Toyota RAV4”; and that he saw three
people inside the RAV4.
The trial court found that the statements made by R.M. were nontestimonial, and
therefore did not violate defendant’s right to confrontation. The court further
found that even if R.M.’s statements were improperly admitted, “their admission,
considering all the evidence presented to the jury was, . . . harmless beyond a
reasonable doubt.”
Although we disagree with the trial court that the statements were nontestimonial
for Crawford purposes, we conclude that their admission was harmless beyond a
reasonable doubt. See People v. Couillard, 131 P.3d 1146, 1153 (Colo. App.
2005).
Violation of a defendant’s confrontation rights is a constitutional error that
requires reversal unless the appellate court determines that the error was harmless
beyond a reasonable doubt. Id. The inquiry in a harmless error analysis is
whether the guilty verdict actually rendered at trial was surely unattributable to
the error. Id. Thus, a reviewing court must look at the trial as a whole and decide
whether there is a reasonable probability that the defendant could have been
prejudiced by the error. Id. If so, the error is not harmless and the conviction
must be reversed. Id.

17

Factors to be considered in determining whether a confrontation violation
constitutes harmless error include the importance of the evidence to the
prosecution’s case, whether the evidence was cumulative, the presence or absence
of corroborating or contradictory testimony on the material points of the
improperly admitted evidence, the extent of cross-examination otherwise
permitted, and the overall strength of the prosecution’s case. Id.
Applying those factors here, we conclude that admission of R.M.’s statements
was harmless beyond a reasonable doubt.
R.M.’s statements were cumulative of, and corroborated by, admissible testimony
from other witnesses. Specifically. witnesses other than R.M. provided testimony
that identified the victims’ red truck and its location on southbound Academy
Boulevard near Palmer Park; that a green vehicle pulled up alongside the red
truck at the traffic stop; that the assailants’ vehicle was a green “4 x 4 type of
vehicle” or a green Toyota RAV 4; that, at the traffic stop, someone fired
gunshots into the victims’ truck; that there were three people in the green RAV 4;
that the three people were defendant and his cousins D.T. and A.S.; that defendant
and D.T. both had guns; that, immediately after the shooting, the driver and
passenger in the red truck had blood on them and the driver was “slumped over”
and lying almost horizontally across toward the passenger-side door; and that a
gun was recovered from the area by the victims’ truck.
Because there was cumulative and corroborating testimony from witnesses other
than R.M. and because there was substantial evidence establishing defendant’s
participation in the conspiracy and as an accessory, we conclude that admission of
R.M.’s statements was harmless beyond a reasonable doubt. Because defendant
would not have been able to successfully challenge the admissibility of R.M.’s
statement under Crawford in the direct appeal, we conclude that appellate
counsel’s failure to raise the issue did not prejudice defendant.
(ECF No. 10-6, People v. Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 2225.)
Like the Colorado Court of Appeals found, this Court concludes that the admission of the
challenged statements were harmless beyond a reasonable doubt. Under Colorado law, which
was properly applied by the Colorado Court of Appeals, the prosecution bears the burden of
showing that the violation of a criminal defendant’s right of confrontation is “harmless beyond a
reasonable doubt.” People v. Harris, 43 P.3d 221, 230 (Colo. 2002) (en banc) (quoting Blecha v.
People, 962 P.2d 931, 942 (Colo. 1998)). “If there is a reasonable probability that [the
18

defendant] could have been prejudiced by the error, the error cannot be harmless.” Id. (citing
Chapman v. California, 386 U.S. 18, 23-24 (1967); Blecha, 962 P.2d at 942). When evaluating
whether an error of this type is harmless, Colorado law dictates that a court may consider various
factors, “including the importance of the declarant’s statement to the prosecution’s case, whether
the statement was cumulative, the presence or absence of corroborating or contradictory
evidence on the material points of the witness’s testimony, the extent of the cross-examination
otherwise permitted, and the overall strength of the prosecution’s case.” Id. (citing Merritt v.
People, 842 P.2d 162, 169 (Colo. 1992)). “Further, a court must consider ‘whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.’” Id. (quoting
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)).
This Court’s own review of the record reveals—as the Colorado Court of Appeals
similarly found—that R.M.’s statements were cumulative of, and corroborated by, admissible
testimony from other witnesses. Specifically, at trial, testimony was properly admitted from
witnesses other than R.M. that he and the deceased victim were traveling in a red truck on
Southbound Academy Boulevard near Palmer Park (ECF No. 23, State Court Records, Tr. Nov.
19, 2003, at 228-33, Testimony of Joshua Warren, 246-50, Testimony of Larus Thomasson; Tr.
Nov. 25, 2003, at 20-22, Testimony of Adrian Santos); that a green “4x4 type vehicle” or Toyota
RAV4 pulled up alongside the red truck that R.M. and the deceased victim were driving (Id., Tr.
Nov. 19, 2003, at 250-56, Testimony of Larus Thomasson; Tr. Nov. 25, 2003, at 6-7, Testimony
of Adrian Santos); that at the traffic stop, someone fired gunshots into the victims’ truck (Id., Tr.
Nov. 19, 2003, at 239-42, Testimony of Alicia Leeper, at 252-53, Testimony of Larus
Thomasson; Tr. Nov. 20, 2003, at 8-11, 14-15, Testimony of Richard Gysin); and that there were

19

three people inside the green RAV4 (Id., Tr. Nov. 25, 2003, at pp. 18-19, 22-23, Testimony of
Adrian Santos). 4
Additionally, the Court’s review of the record reveals that there was substantial evidence
offered at trial establishing petitioner’s participation in the conspiracy and as an accessory. As
such, the Court finds, as did the Colorado Court of Appeals, that the admission of R.M.’s
statements was harmless beyond a reasonable doubt. Likewise, the Colorado Court of Appeals
did not err in finding that petitioner’s appellate counsel was not ineffective by choosing not to
raise this issue in his direct appeal.
b. D.T.’s Statements
The Colorado Court of Appeals analyzed petitioner’s claim regarding D.T.’s statements
as follows:
At trial, defendant’s local gang leader, E.A., testified that after defendant’s
brother was shot, he saw D.T., defendant, and A.S. at a bar and that D.T. was
wearing a coat that “came down to his knees.” E.A. then related:
[PROSECUTOR]: And did [D.T.] show you anything?
[E.A.]: First he was talking and he said he was on a mission. And I said, “Are
you going to go handle that?” He said, “Yeah, you know it.” He showed me an
SKS or an AK, some type of rifle.
[PROSECUTOR]: And where did he have that?
[E.A.]: In his jacket.
Later, over defense counsel’s objection, a police detective testified that R.D. said
that D.T. told R.D. that D.T. had an AK-47 and that “his bullets hit” the deceased
4

Petitioner attempts to rebut this evidence on the grounds that the testimony of Adrian Santos was
“shaky” because he was a co-conspirator and testified in connection with a favorable plea agreement he
had entered into with the government. (See ECF No. 38 at 30.) Even assuming credibility issues with
respect to Mr. Santos, the result would not change as other witnesses provided redundant testimony
establishing substantially the same facts, and those witnesses’ credibility was not challenged by
Petitioner. Although Santos was the only witness who testified to the identity of the persons in the
RAV4, the various other witnesses who also testified to Petitioner’s participation in the conspiracy would
render this aspect of the disputed testimony harmless.

20

victim. The officer also testified that R.D. reported that D.T. told R.D. that
defendant “was also shooting.”
Denying defendant’s Crim. P. 35(c) motion requesting a new trial based on
Crawford, the trial court found that D.T.’s statements were evidence of the
conspiracy and therefore did not constitute a Confrontation Clause violation; and,
alternatively, that defense counsel’s examination of the police officer in
defendant’s “case-in-chief waived [defendant’s] right to assert a Confrontation
[Clause] violation when the prosecution elicited from the Detective on cross
examination statements allegedly made by [D.T.].”
Like the trial court, we conclude that D.T’s statements were nontestimonial.
Notably, D.T.’s statements were not made in response to police interrogation, and
a reasonable person in D.T.’s position would not make such incriminating
statements if he believed they would later be used against him and his coconspirators in the investigation or prosecution of the crimes. See People v.
Villano, 181 P.3d 1225, 1229 (Colo. App. 2008); see also United States v.
Townley, 472 F.3d 1267, 1275 (10th Cir. 2007). Indeed, the Supreme Court
indicated that statements in furtherance of a conspiracy are, by their very nature,
nontestimonial. Crawford, 541 U.S. at 54-56.
We conclude that, even though some of D.T.’s statements were admitted through
the testimony of a police officer, his statements were nontestimonial for Crawford
purposes and that therefore the trial court did not err when it admitted the
statements. See Villano, 181 P.3d at 1229. Because defendant would not have
prevailed on this issue in the direct appeal, defendant has failed to demonstrate
prejudice resulting from appellate counsel’s failure to raise the issue.
(ECF No. 10-6, People v. Herrera, 12CA0312 (Colo. App. May 22, 2012) (unpublished), at 2629.)
As for the statements of D.T. that were admitted through the testimony of E.A., these
statements were not testimonial in nature and so no Crawford issue would arise as to that
testimony. Crawford, 541 U.S. at 68; Townley, 472 F.3d at 1275; Villano, 181 P.3d at 1229.
Regarding the statements elicited from the police investigator’s testimony, the analysis
differs as the police investigator’s testimony contained double-hearsay. Respondents argue that
the Supreme Court has never ruled on whether statements that are non-testimonial become
testimonial when they are hearsay within hearsay and are repeated in a testimonial setting. (ECF

21

No. 32 at 28.) However, the more relevant question is whether testimonial hearsay statements
can become non-testimonial by virtue of the fact that those statements have embedded within
them another layer of hearsay that are not of a testimonial nature. Here, the statements of R.D.
that were elicited through the testimony of a police detective were undoubtedly testimonial in
that they were obtained when R.D. was being interrogated by the police. Crawford, 541 U.S. at
68. Regardless of whether the statements of D.T. would implicate Crawford, the Court must
face the separate (albeit related) question of whether the admission of hearsay statements of R.D.
would violate the rule in Crawford.
The Court finds that the trial court’s admission of statements of R.D. through the police
investigator—which contained the statements of D.T.—was not in conformity with Crawford
and was error. However, applying Colorado law, the Court concludes that any such error would
be harmless beyond a reasonable doubt because those statements were cumulative of other
properly admitted evidence, including the statements that were admitted through E.A. E.A.
testified that he saw petitioner and D.T. after a meeting to plan the shooting. He testified that
D.T. showed him an assault rifle and said he was going to handle it. (ECF No. 23, State Court
Records, Tr. Nov. 26, 2003, at 85-87, Testimony of Eric Amos.) E.A. further testified that he
spoke with petitioner after the shooting had taken place, whereupon petitioner related to him that
“[w]e handled it. It got handled.” (Id. at 91-92.) Much of the testimony from the police
investigator containing D.T.’s statements was therefore duplicitous of properly admitted
statements of D.T. Although no other witness testified as to D.T.’s statement that petitioner was
also shooting, this statement could not have impacted the jury’s decision as they found petitioner
guilty of only conspiracy and as an accessory and was unable to return verdicts on the charges of
first degree murder or attempted first degree murder.

22

Additionally, as stated above, the Court’s review of the record reveals that there was
substantial evidence offered at trial establishing petitioner’s participation in the conspiracy and
as an accessory beyond the impermissible hearsay statements. As such, the Court finds, as did
the Colorado Court of Appeals, that the admission of D.T.’s statements was harmless beyond a
reasonable doubt. Likewise, the Colorado Court of Appeals did not err in finding that
petitioner’s appellate counsel was not ineffective by choosing not to raise this issue in his direct
appeal.
The state court is entitled to deference in its own decision unless that decision is contrary
to or an unreasonable application of clearly established federal law, and this Court finds that the
state court’s application of Strickland was sound in any event. Likewise, even upon this its own
independent review of the record, this Court reaches the same conclusion and finds that
petitioner’s appellate counsel was not ineffective pursuant to Strickland. Petitioner’s habeas
application on this ground is thus denied.
B. Prosecutorial Misconduct
Petitioner’s second point of error maintains that the prosecution violated his right to due
process at the grand jury proceedings by knowingly presenting perjured testimony. Specifically,
petitioner claims the prosecutor misled the grand jury by representing that a shell cartridge found
in the green RAV4 matched the rifle listed on a purchase receipt signed by applicant’s brother.
As an initial matter, the Court rejects respondent’s argument that petitioner’s claim is
defaulted, pursuant to the independent and adequate state ground doctrine, because this claim
was procedurally defaulted in the state court. Not only did respondents already concede that
“claim 2 appears to be exhausted” and therefore ripe for this Court’s review on the merits, (ECF
No. 10 at 14), but Magistrate Judge Gallagher also came to the same conclusion in his Order

23

Drawing Case on April 22, 2015. (ECF No. 21.) Although respondent argues that the law-ofthe-case doctrine would not need to apply “when the decision was clearly erroneous and would
work a manifest injustice,” Clark v. State Farm Mut. Auto Ins. Co., 590 F.3d 1134, 1140 (10th
Cir. 2009), it makes no showing of how Magistrate Judge Gallagher’s ruling was erroneous or
“induced on a mistaken view of the law.” Health Sys. Agency of Okla, Inc. v. Norman, 589 F.2d
486, 490 n.8 (10th Cir. 1978) (citations omitted). Likewise, this Court concludes that the
Colorado Court of Appeals did in fact address petitioner’s prosecutorial misconduct claim on the
merits, and concluded that “[a]s the jury found defendant guilty beyond a reasonable doubt as a
conspirator and as an accessory, the alleged impropriety is moot with respect to those claims.”
(ECF No. 10-6 at 29.)
However, even addressing petitioner’s claim on its merits, the Court finds that it does not
succeed. First, claims of deficiencies in state grand jury proceedings are not cognizable in a
habeas corpus proceeding in federal court. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989)
(relying on United States v. Mechanik, 475 U.S. 66, 70 (1986): “If federal grand jury rights are
not cognizable on direct appeal where rendered harmless by a petit jury, similar claims
concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in
a federal court.”).
Further, “[t]here is no Supreme Court precedent clearly establishing a constitutional rule
that, irrespective of prosecutorial misconduct, an indictment must be dismissed because of
perjured grand jury testimony where the perjurious testimony is not repeated before the petit jury
which convicts.” Anderson v. Secretary for Dept. of Corrections, 462 F.3d 1319, 1327 (11th Cir.
2006); see also Goodrich v. Hall, 448 F.3d 45, 49 (1st Cir. 2006) (“[T]he Supreme Court has not
defined the circumstances in which impropriety involving even a federal grand jury can ever lead

24

to dismissal of an indictment once a petit jury has returned a verdict of guilt.”) (citing Mechanik,
475 U.S. at 73). Where there is no clearly established federal law, the state court could not be
said to violate it, and “[t]he absence of clearly established federal law is dispositive under §
2254(d)(1).” House, 527 F.3d at 1018. If there is no clearly established federal law, that is the
end of the inquiry pursuant to § 2254(d)(1). See id. at 1018. Petitioner has not pointed to, nor
has this Court found, any Supreme Court case law establishing a rule that an indictment must be
dismissed where it resulted from perjured testimony to the grand jury where that testimony was
not subsequently repeated to the petit jury that convicted the defendant beyond a reasonable
doubt. As such, petitioner’s claim fails under 42 U.S.C. § 2254(d)(1).
IV.

CONCLUSION
Based on the foregoing, the Court:
(1)

DENIES petitioner’s application for writ of habeas corpus (ECF No. 1);

(2)

DISMISSES the petition with PREJUDICE; and

(3)

pursuant to 28 U.S.C. § 2253(a), the Court having considered the standards of

Slack v. McDaniel, 529 U.S. 473, 484 (2000), finds that petitioner has not made a substantial
showing of the denial of a constitutional right such that reasonable jurists could disagree as to the
disposition of his application. 28 U.S.C. § 2253(c)(2). Accordingly, the Court also DENIES
issuing a certificate of appealability.
DATED this 30th day of November, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge
25