Moore v. Raemisch et al

Filing 10

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS The Application for Writ of Habeas Corpus is denied and this civil action is dismissed. No certificate of appealability will issue because the Applicant has not made a substantial showing of the denial of a constitutional right, 28 U.S.C. § 2253(c)(2), by Judge Richard P. Matsch on 8/3/17. (ktera)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior District Judge Richard P. Matsch
Civil Action No. 16-cv-02518-RPM
ALONZO LYDELL MOORE,
Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Dept of Corrections,
LAURIE TAFOYA, Warden, San Carlos Correctional Facility, and
CYNTHIA COFFMAN, Attorney General, State of Colorado,
Respondents.
_____________________________________________________________________
ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS
_____________________________________________________________________
Alonzo Lydell Moore is serving a sentence of life imprisonment without possibility
of parole as a result of a jury verdict finding him guilty of first degree murder in the
stabbing death of a woman in Pueblo County, Colorado. The conviction and sentence
in 1999 was affirmed on direct appeal by the Colorado Court of Appeals on January 17,
2002. The Colorado Supreme Court denied certiorari review on September 23, 2002.
Moore filed a pro se motion for post-conviction relief under Colo. Crim. P. 35(c) in
October, 2002. The district court made no decision on that motion despite repeated
written requests in letters he sent to the court.
In July, 2008, Moore filed a second Rule 35(c) motion, pro se. The district court
denied it as a successive motion. On appeal the Colorado Court of Appeals affirmed
that ruling but remanded the case to the district court to consider the merits of the 2002
motion.

Because the trial judge had retired, the motion was presented to another district
judge who entered an order denying relief on October 28, 2011. Ex. F. There was no
evidentiary hearing and no review of transcripts of the trial.
Pro bono counsel filed a motion to appeal that ruling out of time under C.A.R.
26(b). No opposition was filed and the motion was granted on June 24, 2013. Counsel
raised the same issues as the 2002 pro se motion claiming ineffective assistance of trial
counsel in violation of the Sixth Amendment to the United States Constitution. Among
them was the claim that trial counsel failed to inform the court that Moore physically
assaulted his lawyer and called him a racist, Moore being black and counsel white.
The Colorado Court of Appeals affirmed the denial order in an opinion
announced on Mach 19, 2015. Ex. K. The Colorado Supreme Court denied certiorari
review on October 13, 2015.
Moore filed this application for a writ of habeas corpus on October 11, 2016. The
respondents claim the filing is untimely, asserting that the one-year limitation expired on
December 12, 2012. That ignores the grant of untimely appeal by the Colorado Court of
Appeals. This is a case for application of the doctrine of equitable tolling for several
reasons, particularly the failure of the district court to act on the pro se motion for seven
years. Counsel for the Applicant has asked that this court recognize that Moore
suffered traumatic brain injury which has impaired his cognitive capacity and that his pro
se filings were the work of fellow inmates.
The application is accepted as a timely filing for review of the March 19, 2015,
order.
The single claim for relief in this court is stated as follows:
2

Petitioner is entitled to a writ of habeas corpus because his Sixth
Amendment right to conflict-free counsel was violated, where the trial
court failed to hold an adequate inquiry into the conflict of interest and the
failure prejudiced Petitioner’s right to a fair trial.
The district court analyzed this as a claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984) and held that Moore had
“presented no competent evidence that his attorneys’ representation fall outside the
range of professional conduct in criminal cases. Mr. Moore has also failed to prove by a
preponderance of the evidence how he was prejudiced by the jury selection process.”
Ex. F, p. 0000590. That refers to the failure to challenge a juror whose mother had
been stabbed to death which the court considered to be trial strategy.
The Court of Appeals affirmed that ruling on the prejudice prong of the Strickland
analysis. The appellate court believed that ineffective assistance was the appropriate
question but did go on to consider the conflict claim under Cuylor v. Sullivan, 446 U.S.
335 (1980).
Under that analysis the ruling was that the motion did not set forth any facts to
suggest an actual conflict of interest between him and his trial counsel. The opinion
includes a recitation of the factual record relating to the duty to inquire and right to new
counsel. Ex. K, pp. 10 to 14.
The applicant has given his own recitation of the factual record but that has not
shown such a difference as to warrant a finding that the Colorado Court of Appeals had
made an unreasonable determination of the trial record. The argument is that the
Colorado Court of Appeals should have applied the law in Wood v. Georgia, 450 U.S.
261 (1981). In that case the Supreme Court held that the trial court had a duty to

3

recognize the possibility of a disqualifying conflict of interest when the defendant was
represented by a lawyer retained by his employer under circumstances suggesting that
the lawyer’s primary interest was the preservation of the employer’s business. That was
considered to be a question of due process and the Court vacated the revocation of
probation for failure to pay installments of substantial fines with directions to hold a
hearing to determine if an actual conflict existed, and, if so, to hold a new hearing
untainted by the conflict.
The facts of that case are sufficiently different to make it inapplicable to Moore’s
trial.
Under the deferential standard required by 28 U.S.C. § 2254(d)(1) and (2), and
2254(e)(1) this Court is unable to grant relief. It is
ORDERED, that the Application for Writ of Habeas Corpus is denied and this civil
action is dismissed. The Court
FURTHER ORDERS that no certificate of appealability will issue because the
Applicant has not made a substantial showing of the denial of a constitutional right, 28
U.S.C. § 2253(c)(2).
DATED: August 3, 2017
BY THE COURT:
s/Richard P. Matsch
__________________________
Richard P. Matsch, Senior Judge

4