Jones v. Archuleta et al
Filing
54
ORDER on Application for Writ of Habeas Corpus. ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 1 is denied and this case is dismissed with prejudice. There is no basis on which to issue a certificate of appealability. Motion for Discovery and Evidentiary Hearing 45 , Motion for Appointment of Counsel 44 , and the motion 51 seeking leave to proceed in forma pauperis in connection with the motion for appointment of counsel are denied, by Judge Philip A. Brimmer on 4/26/18. (sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 16-cv-03048-PAB
BERNARD JONES,
Applicant,
v.
LOU ARCHULETA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Applicant Bernard Jones is a prisoner in the custody of the Colorado Department
of Corrections. Mr. Jones has filed pro se on December 12, 2016 an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“the Application”) [Docket No. 1].
Mr. Jones is challenging the validity of his conviction and sentence in the District Court for
El Paso County, Colorado, Case Number 97CR873. On August 28, 2017, Respondents
filed an Answer (“the Answer”) [Docket No. 33]. On February 5, 2018, Mr. Jones filed a
Reply Brief (“the Traverse”) [Docket No. 47].
Mr. Jones also has filed a Motion for Discovery and Evidentiary Hearing [Docket
No. 45] with a supporting memorandum of law, a Motion for Appointment of Counsel
[Docket No. 44], and a motion [Docket No. 51] seeking leave to proceed in forma pauperis
in connection with the motion for appointment of counsel. The Motion for Discovery and
Evidentiary Hearing is relevant to claim 3(b) and will be denied for the reasons discussed
below in connection with that claim. The motions for appointment of counsel and for
leave to proceed in forma pauperis also will be denied.
After reviewing the record, including the Application, the Answer, the Traverse,
and the state court record, the Court concludes Mr. Jones is not entitled to relief on his
remaining claims.
I. BACKGROUND
The relevant factual and procedural background, which is lengthy and convoluted,
was summarized by the Colorado Court of Appeals as follows:
A jury convicted Jones of first degree sexual assault
and possession with intent to distribute a controlled
substance. The trial court found that Jones was a habitual
offender and sentenced him to sixty-four years in prison on
the sexual assault conviction and ninety-six years in prison on
the controlled substance conviction. Jones’s convictions
were affirmed on direct appeal. People v. Jones, (Colo. App.
No. 98CA0146, Jan. 13, 2000) (not published pursuant to
C.A.R. 35(f)).
Jones then filed a pro se Crim. P. 35(c) motion alleging
ineffective assistance of trial counsel. The trial court
summarily denied the motion. Jones appealed, and a
division of this court remanded the case for an evidentiary
hearing on the ineffective assistance of trial counsel related to
three issues: (1) evidence of the victim’s gang affiliation; (2)
the use of the victim’s juvenile adjudication to show motive or
bias; and (3) the testing of Jones’s dental moldings. People
v. Jones, (Colo. App. No. 01CA1118, Apr. 17, 2003) (not
published pursuant to C.A.R. 35(f)).
In 2006, the trial court held an evidentiary hearing,
which was later reconvened and completed in 2012. On the
date of the final hearing, Jones filed a supplemental Crim. P.
35(c) motion based on alleged newly discovered evidence.
In a detailed and well-reasoned order, the trial court denied
the Rule 35(c) motions and declined to hear evidence on the
supplemental motion.
Docket No. 10-12 at 2-3.
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Mr. Jones contends he and the victim had consensual sex and denies any intent to
distribute a controlled substance. He asserts the following claims: ineffective assistance
of trial counsel by failing to obtain and present evidence of the victim’s gang affiliation
(claim 1); ineffective assistance of trial counsel by failing to present evidence of the
victim’s juvenile adjudication (claim 2); the trial court erred during postconviction
proceedings by not considering expert testimony regarding newly discovered evidence
that a bite mark on the victim was inconsistent with defendant’s dentition (claim 3(a)) and
trial counsel were ineffective by failing to have the bite mark tested (claim 3(b)); trial
counsel labored under a conflict of interest (claim 4); ineffective assistance of trial counsel
by failing to challenge the validity of Mr. Jones’ prior convictions (claim 5); and vindictive
prosecution by punishing Mr. Jones for exercising his constitutional rights (claim 6).
Facts pertinent to each claim are set forth below.
The Court previously entered an Order [Docket No. 28] dismissing claim 3(a) and
the portion of claim 5 in which Mr. Jones seeks to directly challenge the validity of his prior
convictions.
II. STANDARD OF REVIEW
The Court must construe the Application and other papers filed by Mr. Jones
liberally because he 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 should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued
with respect to any claim that was adjudicated on the merits in state court unless the state
3
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). Mr. Jones bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. See Harrington v. Richter,
562 U.S. 86, 98-99 (2011). In particular, “determining whether a state court’s decision
resulted from an unreasonable legal or factual conclusion does not require that there be
an opinion from the state court explaining the state court’s reasoning.” Id. at 98. Thus,
“[w]hen a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.” Id. at 99.
Even “[w]here a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the
state court to deny relief.” Id. at 98. In other words, the Court “owe[s] deference to the
state court’s result, even if its reasoning is not expressly stated.” Aycox v. Lytle, 196
F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court “must uphold the state court’s
summary decision unless [the Court’s] independent review of the record and pertinent
federal law persuades [the Court] that its result contravenes or unreasonably applies
4
clearly established federal law, or is based on an unreasonable determination of the facts
in light of the evidence presented.” Id. at 1178. “[T]his ‘independent review’ should be
distinguished from a full de novo review of the petitioner’s claims.” Id.
The threshold question the Court must answer under § 2254(d)(1) is whether Mr.
Jones seeks to apply a rule of law that was clearly established by the Supreme Court at
the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000).
Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state‑court decision.” Id. at
412. Furthermore,
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar to
the case sub judice. Although the legal rule at issue need not
have had its genesis in the closely-related or similar factual
context, the Supreme Court must have expressly extended
the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) “the state court applies a rule that contradicts
the governing law set forth in Supreme Court cases”; or (b)
“the state court confronts a set of facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from [that]
precedent.” Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
5
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,
[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 and citation omitted). In conducting
this analysis, the Court “must determine what arguments or theories supported or . . .
could have supported[] the state court’s decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
6
the holding in a prior decision of [the Supreme] Court.” Id. at 102. In addition, “review
under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (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.
Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the
relevant state court decision was based on an unreasonable determination of the facts in
light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court
presumes the state court’s factual determinations are correct and Mr. Jones bears the
burden of rebutting the presumption by clear and convincing evidence. The presumption
of correctness applies to factual findings of the trial court as well as state appellate courts.
See Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015). The presumption of
correctness also applies to implicit factual findings. See Ellis v. Raemisch, 872 F.3d
1064, 1071 n.2 (10th Cir. 2017). “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)).
7
Finally, the Court’s analysis is not complete even if Mr. Jones demonstrates the
existence of a constitutional violation. “Unless the error is a structural defect in the trial
that defies harmless-error analysis, [the Court] must apply the harmless error standard of
Brecht v. Abrahamson, 507 U.S. 619 (1993).” Bland v. Sirmons, 459 F.3d 999, 1009
(10th Cir. 2006); see also Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015) (“For reasons of
finality, comity, and federalism, habeas petitioners are not entitled to habeas relief based
on trial error unless they can establish that it resulted in actual prejudice.”) (internal
quotation marks omitted); Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a
federal court must conduct harmless error analysis under Brecht any time it finds
constitutional error in a state court proceeding regardless of whether the state court found
error or conducted harmless error review). Under Brecht, a constitutional error does not
warrant habeas relief unless the Court concludes it “had substantial and injurious effect”
on the jury’s verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious effect’ exists
when the court finds itself in ‘grave doubt’ about the effect of the error on the jury’s
verdict.” Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)).
“Grave doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual
equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435. The Court
makes this harmless error determination based upon a review of the entire state court
record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000). Notably,
however, a second prejudice inquiry under Brecht is unnecessary in the context of an
ineffective assistance of counsel claim in which prejudice under Strickland is shown.
See Byrd v. Workman, 645 F.3d 1159, 1167 n.9 (10th Cir. 2011).
If a claim was not adjudicated on the merits in state court, and if the claim also is
8
not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
Cir. 2004).
III. MERITS OF APPLICANT’S REMAINING CLAIMS
A. Claim 1
Mr. Jones contends in claim 1 that trial counsel were ineffective by failing to obtain
and present evidence of the victim’s gang affiliation. The Colorado Court of Appeals
accurately described the factual basis for this claim and the trial court’s reasons for
rejecting the claim as follows:
Jones argues that his trial counsel were ineffective
because they failed to obtain evidence of the victim’s gang
affiliation, which would have provided the jury with her motive
to lie. Jones asserts that the victim fabricated the sexual
assault allegation in order to avoid retaliation from her gang,
the Four Corner Hustlers, for having sex with a non-member.
Jones also claims that after he had consensual sex with the
victim, a fellow gang member beat her up and bit her in
retaliation.
The trial court rejected this argument, finding (1) trial
counsel’s testimony credible that he attempted to obtain
information concerning the victim’s gang affiliation and no
evidence was presented that he was deficient in these
attempts; (2) no credible evidence was presented that the
victim was in fact a gang member; (3) trial counsel made a
reasonable strategic decision not to pursue the victim’s gang
affiliation because it could have backfired and harmed
Jones’s case; and (4) Jones’s theory is not credible because
the person he asserts bit the victim was not even a member of
the Four Corner Hustlers.
Docket No. 10-12 at 5.
Mr. Jones concedes that counsel investigated whether the victim was a gang
member and twice moved for a continuance to complete the investigation. The trial court
9
denied the motions. Mr. Jones contends “[t]he denial of [counsel’s] request for a
continuance of the trial prevented him from completing his investigation to secure the
testimony of a gang expert to support his theory of defense.” Docket No. 1 at 14. With
respect to prejudice, Mr. Jones maintains that the victim
was the key witness in the case at bar, and there could have
been no sexual assault charge without her testimony. She
was also the only witness that claimed to have actually
witnessed Mr. Jones distribute powdered cocaine during the
party (which supported the drug distribution charge instead of
the lesser included charge of simple possession charge).
Thus, a direct attack on [the victim’s] credibility would have
changed the outcome of the jury’s verdict of guilt on both
charges once the jury was provided with her motive for
testifying falsely against Mr. Jones as a direct result of her
fear of gang retaliation.
Docket No. 1 at 15.
It was clearly established at the time of Mr. Jones’ conviction that a defendant in a
criminal case has a Sixth Amendment right to the effective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668 (1984). Ineffective assistance of counsel claims
are mixed questions of law and fact. See id. at 698.
To establish counsel was ineffective, Mr. Jones must demonstrate both that
counsel’s performance fell below an objective standard of reasonableness and that
counsel’s deficient performance resulted in prejudice to his defense. See id. at 687.
“Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
There is “a strong presumption” that counsel’s performance falls within the range of
“reasonable professional assistance.” Id. It is Mr. Jones’ burden to overcome this
presumption by showing that the alleged errors were not sound strategy under the
circumstances. See id. “For counsel’s performance to be constitutionally ineffective, it
10
must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d
904, 914 (10th Cir. 1999).
Under the prejudice prong, Mr. Jones must establish “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.; see also Richter, 562 U.S. at
112 (stating that “[t]he likelihood of a different result must be substantial, not just
conceivable.”). In determining whether Mr. Jones has established prejudice, the Court
must look at the totality of the evidence and not just the evidence that is helpful to Mr.
Jones. See Boyd, 179 F.3d at 914.
If Mr. Jones fails to satisfy either prong of the Strickland test, the ineffective
assistance of counsel claim must be dismissed. See Strickland, 466 U.S. at 697.
Furthermore, conclusory allegations that counsel was ineffective are not sufficient to
warrant habeas relief. See Humphreys v. Gibson, 261 F.3d 1016, 1022 n.2 (10th Cir.
2001). Finally, “because the Strickland standard is a general standard, a state court has
even more latitude to reasonably determine that a defendant has not satisfied that
standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The Colorado Court of Appeals applied the two-part Strickland test and rejected
Mr. Jones’ claim that counsel were ineffective by failing to obtain and present evidence of
the victim’s gang affiliation:
The trial court’s factual findings are supported by the
record. Trial counsel made reasonable attempts to
investigate the victim’s gang affiliation, including twice
requesting a continuance of the trial in order to pursue further
investigation. Even Jones’s expert witness on ineffective
assistance of counsel testified that after counsel’s requests
11
for a continuance were denied, there was nothing more they
could have done with respect to this issue.
The record reveals that trial counsel could also have
reasonably decided not to pursue this strategy in order to
avoid testimony about gang affiliation and gang culture that
could have potentially harmed Jones’s case. Counsel
testified that presenting evidence of the victim’s gang
affiliation could have opened the door to testimony about
Jones’s possible gang affiliation. Therefore, the trial court
did not err in finding that trial counsel’s performance was not
deficient in failing to investigate and present evidence of the
victim’s gang affiliation.
Even if counsel’s performance was deficient, Jones
has not established prejudice. Jones’s expert witness
testified that he “[could] not say” that the outcome of the
proceedings would have been different had trial counsel
further developed the gang affiliation testimony. In addition,
no conclusive evidence was presented regarding the victim’s
gang affiliation, and Jones has not shown that the trial court
would have even admitted this evidence had it been
discovered. See People v. James, 117 P.3d 91, 91 (Colo.
App. 2004) (stating that while gang affiliation may be
admissible, the trial court has broad discretion in determining
its relevance, probative value, and potential of unfair
prejudice). Thus, Jones has not established that counsel
were ineffective as to this issue.
Docket No. 10-12 at 5-7 (brackets in original).
Mr. Jones fails to demonstrate the state court’s decision with respect to claim 1 is
contrary to Strickland under § 2254(d)(1). Instead, he argues the state court’s decision
is contrary to clearly established federal law in Powell v. Alabama, 287 U.S. 45 (1932).
However, Powell does not establish any clearly established federal law applicable to
claim 1. As noted above, “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.”
House, 527 F.3d at 1016. Powell addressed a failure to appoint counsel as a violation of
12
due process and did not involve an ineffective assistance of counsel claim premised on
factual allegations that appointed counsel failed to conduct an adequate investigation.
See Powell, 287 U.S. at 50. Therefore, Powell is not applicable to the Court’s review
under § 2254(d)(1).
Mr. Jones also argues that the state court’s ruling with respect to claim 1 is based
on an unreasonable determination of the facts under § 2254(d)(2) and an unreasonable
application of Strickland under § 2254(d)(1) because the victim was the main witness
against him, he presented evidence at the postconviction hearing that the victim was a
gang member, evidence that the victim was a gang member was available at the time of
trial, trial counsel never made a strategic decision not to present evidence of the victim’s
gang affiliation, and evidence of the victim’s gang affiliation was admissible. The Court is
not persuaded.
With respect to the deficient performance prong, Mr. Jones does not dispute that
counsel investigated the victim’s gang affiliation and sought two continuances to conduct
further investigation. It was not unreasonable to conclude that these efforts were
reasonable and do not establish deficient performance under Strickland. It also was not
unreasonable to conclude that counsel reasonably could have made a strategic decision
not to pursue the issue of the victim’s alleged gang affiliation in order to avoid opening the
door to testimony that potentially could harm the defense case. Counsel’s strategic
choices “made after thorough investigation . . . are virtually unchallengeable.”
Strickland, 466 U.S. at 690.
With respect to the prejudice prong, Mr. Jones again fails to demonstrate the state
13
court’s decision was based on an unreasonable determination of the facts in light of the
evidence presented or an unreasonable application of Strickland. Mr. Jones does not
present any clear and convincing evidence to overcome the presumption of correctness
that attaches to the factual determinations that Mr. Jones’ expert witness could not say
there was a reasonable probability the outcome of the proceedings would have been
different and that no conclusive evidence was presented regarding the victim’s gang
affiliation. See 28 U.S.C. § 2254(e)(1). Mr. Jones also fails to demonstrate the trial
court would have admitted evidence of the victim’s gang affiliation if it had been
discovered. As a result, it was not unreasonable to conclude Mr. Jones failed to
demonstrate a substantial likelihood of a different result. See Richter, 562 U.S. at 112
(to establish prejudice under Strickland, “[t]he likelihood of a different result must be
substantial, not just conceivable.”); Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir.
2011) (“mere speculation is not sufficient” to demonstrate prejudice under Strickland).
Ultimately, Mr. Jones is not entitled to relief with respect to claim 1 because he fails
to demonstrate the state court ruling “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.
B. Claim 2
Mr. Jones contends in claim 2 that trial counsel were ineffective by failing to
present evidence of the victim’s juvenile adjudication for conspiracy to commit theft in
order to impeach her testimony. According to Mr. Jones, the victim’s juvenile case was
pending at the time she testified at his preliminary hearing and she received a favorable
14
plea deal four days later. Mr. Jones specifically contends counsel were ineffective
because state law permits the use of a juvenile adjudication if it is probative of truthfulness
or untruthfulness and federal law entitles him to present evidence of motive and bias.
The Colorado Court of Appeals discussed this claim as follows:
Jones argues that his trial counsel were ineffective
because they failed to impeach the victim with her juvenile
adjudication.
A juvenile adjudication is not a felony conviction and
the mere fact that it exists cannot be used to impeach a
witness’s credibility. People v. D’Apice, 735 P.2d 882, 883
(Colo. App. 1986). But a witness may be cross-examined
about specific instances of conduct surrounding a juvenile
adjudication that are probative of the witness’s character for
truthfulness or untruthfulness. CRE 608(b); see, e.g.,
People v. Corson, 2013 COA 4, ¶ 20 (“[A] prior juvenile
adjudication for false reporting may be used to elicit character
for untruthfulness.”) (cert. granted Nov. 12, 2013). Theft is a
specific instance of conduct that is probative of
untruthfulness. People v. Segovia, 196 P.3d 1126, 1132
(Colo. 2008). However, the trial court still has discretion to
exclude the evidence for other reasons. Id. In addition, a
pending juvenile adjudication may be admissible to show
motive, bias, prejudice, motivation for testifying, or hope for
leniency in the juvenile proceeding. Corson, ¶ 19.
The trial court found that trial counsel were not
deficient as to this issue because (1) the victim was not on
probation at the time of her testimony; (2) there is no evidence
to suggest that the victim received a favorable disposition in
exchange for her testimony in this case; and (3) choosing not
to impeach the victim about her juvenile delinquency record
was a reasonable strategic decision.
Evidence of the victim’s juvenile adjudication for
conspiracy to commit theft could not have been used to
impeach her credibility by the mere fact that it existed. Nor
could it have been used to show motive, bias, prejudice,
motivation for testifying, or hope for leniency in the juvenile
proceeding because it was not pending at the time of Jones’s
15
trial. Trial counsel could, however, have attempted to
impeach the victim with the juvenile adjudication in order to
show her character for untruthfulness. But Jones’s counsel
testified that impeaching the victim on a juvenile adjudication
could have backfired because it would have highlighted the
large age difference between her and Jones. It also may
have been unpopular with the jury due to the possible
appearance, according to counsel, that they were “taking on a
teenager for doing . . . teenage things.” This is a reasonable
strategic choice, and the trial court did not err in finding that
counsel’s performance was not deficient.
To the extent that Jones argues the victim received a
favorable disposition in her juvenile case in exchange for her
testimony, we reject this argument. The trial court found that
the disposition was not unusual, and this finding has record
support.
Moreover, Jones has failed to establish prejudice. His
expert witness acknowledged that the trial court likely would
not have allowed the impeachment. Even had the
impeachment been allowed, Jones has not shown that the
outcome of the trial would have been different.
Docket No. 10-12 at 7-9 (footnote omitted).
Mr. Jones first argues the state court’s decision that defense counsel could not use
evidence of the victim’s juvenile adjudication to demonstrate motive or bias is contrary to
clearly established federal law under the Confrontation Clause. However, claim 2 is not
a Confrontation Clause claim and Mr. Jones does not identify any materially
indistinguishable Supreme Court decision that would compel a different result under
Strickland. See House, 527 F.3d at 1018. Therefore, he is not entitled to relief with
respect to claim 2 under the “contrary to” clause of § 2254(d)(1).
Mr. Jones also fails to demonstrate the state court’s ruling regarding deficient
performance was based on an unreasonable determination of the facts in light of the
16
evidence presented to the state court under § 2254(d)(2) or an unreasonable application
of Strickland under § 2254(d)(1). The state courts recognized that evidence of a pending
juvenile adjudication may be relevant to motive or bias, but reasonably concluded
counsel was not ineffective for not introducing such evidence for that purpose because
the victim’s juvenile adjudication was not pending at the time Mr. Jones was tried. Mr.
Jones does not present any clear and convincing evidence to overcome the presumption
of correctness regarding the factual finding that the juvenile proceedings were not
pending at the time he was tried. See 28 U.S.C. § 2254(e)(1). Mr. Jones also fails to
present any clear and convincing evidence to overcome the presumption of correctness
regarding the factual determination that the disposition in the victim’s juvenile case was
not unusual. See id. Finally, it was not unreasonable to conclude counsel made a
reasonable strategic determination not to impeach the victim with evidence of her juvenile
adjudication because it could have been unpopular with the jury or even backfired by
highlighting the large age difference between the victim and Mr. Jones. The Court
reiterates that strategic choices made by counsel “after thorough investigation . . . are
virtually unchallengeable.” Strickland, 466 U.S. at 690.
Mr. Jones is not entitled to relief with respect to claim 2 because he fails to
demonstrate the state court ruling “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.
C. Claim 3(b)
Mr. Jones contends in claim 3(b) that trial counsel were ineffective by failing to
17
have a bite mark on the victim’s cheek tested. The victim testified she was bitten by Mr.
Jones during the sexual assault. A prosecution expert examined dental moldings and
imprints obtained from Mr. Jones and testified that this evidence was consistent with the
bite mark on the victim’s cheek. At the time Mr. Jones was tried, the prosecution expert’s
“consistent with” conclusion was the lowest level of certainty for a possible match. Mr.
Jones denies biting the victim and the defense did not call its own expert.
The Colorado Court of Appeals applied the two-part Strickland test and rejected
this ineffective assistance of counsel claim for the following reasons:
A decision regarding whether to call an expert witness
is a strategic choice within the discretion of trial counsel. See
People v. Aguilar, 2012 COA 181, ¶ 12; People v. Bradley, 25
P.3d 1271, 1276 (Colo. App. 2001). Even where expert
testimony would have supported the defense, defense
counsel may still choose not to introduce that testimony. See
Harrington v. Richter, 562 U.S. 86, 107-08 (2011). While
strategic choices made after thorough investigation are
“virtually unchallengeable,” strategic choices made after less
than thorough investigation are reasonable to the extent that
the limitations on investigation are supported by reasonable
professional judgments. Ardolino, 69 P.3d at 76.
The trial court found that Jones’s trial counsel were not
deficient in (1) waiting for the prosecution’s expert report
before deciding whether to conduct their own testing and (2)
deciding to attack the weakness in the prosecution’s expert’s
conclusion rather than calling another expert.
The record supports the trial court’s finding that
Jones’s trial counsel conducted a reasonable investigation of
the bite mark evidence. They consulted an odontologist in
advance of trial and reasonably waited until receiving the
prosecution’s expert’s report before deciding whether to
conduct their own testing. Trial counsel tried, albeit
unsuccessfully, to give their expert more time to conduct
testing and form an opinion by twice requesting a
continuance. The trial court’s second denial of counsel’s
18
motion to continue effectively tied counsel’s hands in their
ability to complete testing prior to trial.
In addition, counsel testified that their expert was
unable to exclude Jones as the source of the bite mark, and
thus would not have been able to offer a different conclusion
than the prosecution’s expert. Thereafter, counsel made the
strategic decision to attack the prosecution’s expert’s
characterization of Jones’s dental impression as “consistent”
with the bite mark on the victim’s cheek. At the time of the
trial, this was one of the lowest levels of certainty for bite mark
comparisons. Counsel successfully elicited testimony that
the bite “may or may not” have been caused by Jones.
Considering the circumstances of this case, counsel’s
decision to attack the weakness of the prosecution’s expert’s
conclusion was reasonable. Jones’s expert witness testified
that after the trial court denied counsel’s requests for a
continuance, there was nothing more they could have done
with respect to this issue. Therefore, counsel’s performance
was not deficient.
In addition, Jones has failed to establish prejudice.
He has not shown that had the defense expert completed his
testing, he would have come to a favorable conclusion that
would have ultimately changed the outcome of the
proceedings. His expert witness testified that he “[could] not
say” that the outcome of the proceedings would have been
different had trial counsel further developed the bite mark
evidence. Therefore, Jones has failed to show that counsel
were ineffective in failing to test the bite mark evidence.
Docket No. 10-12 at 10-13 (footnote omitted, brackets in original).
Mr. Jones does not argue the state court applied law that contradicts Strickland
and he fails to identify any materially indistinguishable Supreme Court decision that would
compel a different result. See House, 527 F.3d at 1018. Therefore, he is not entitled to
relief with respect to claim 3(b) under the “contrary to” clause of § 2254(d)(1).
Mr. Jones also fails to demonstrate the state court’s ruling regarding deficient
19
performance in connection with claim 3(b) was based on an unreasonable determination
of the facts in light of the evidence presented under § 2254(d)(2) or an unreasonable
application of Strickland under § 2254(d)(1). It was not unreasonable to wait for the
prosecution expert’s report before determining whether defense testing was necessary or
appropriate. In addition, Mr. Jones does not present any clear and convincing evidence
to overcome the presumption of correctness that attaches to the factual determinations
that counsel did consult an expert regarding the bite mark evidence after receiving the
prosecution expert’s report, counsel sought additional time to conduct defense testing
after receiving the prosecution expert’s report, the prosecution expert’s “consistent with”
conclusion was the lowest level of certainty regarding a possible match at the time of his
trial, the defense expert could not exclude Mr. Jones as the source of the bite mark, and
counsel made a strategic choice to seek to discredit the prosecution’s expert rather than
present a defense expert. See 28 U.S.C. § 2254(e)(1). Given these facts, it was not
unreasonable to conclude counsel’s performance was not deficient. Once again,
strategic choices made by counsel “after thorough investigation . . . are virtually
unchallengeable.” Strickland, 466 U.S. at 690. Mr. Jones’ arguments regarding newly
discovered evidence and advances in forensic odontology ten or fifteen years after the
fact are not relevant to whether counsel’s performance was deficient prior to and during
trial.
Mr. Jones also fails to demonstrate the state court’s resolution of the prejudice
prong with respect to claim 3(b) was based on an unreasonable determination of the facts
or an unreasonable application of Strickland. His own expert could not testify
20
unequivocally at the postconviction hearing that the prejudice prong under Strickland had
been met. As a result, it was not unreasonable to conclude Mr. Jones failed to
demonstrate a substantial likelihood of a different result. See Richter, 562 U.S. at 112
(to establish prejudice under Strickland, “[t]he likelihood of a different result must be
substantial, not just conceivable.”); Byrd, 645 F.3d at 1168 (“mere speculation is not
sufficient” to demonstrate prejudice under Strickland).
Finally, as noted above, Mr. Jones has filed a Motion for Discovery and Evidentiary
Hearing [Docket No. 45] pertinent to claim 3(b). In particular, Mr. Jones seeks discovery
and an evidentiary hearing that he believes will demonstrate conclusively through new
testing of the bite mark evidence that he did not bite the victim. According to Mr. Jones,
his “attorneys have repeatedly and diligently attempted to have the bite mark evidence
tested during the post-conviction proceedings to prove prejudice under the Strickland
test.” Docket No. 45 at 10.
The Motion for Discovery and Evidentiary Hearing will be denied for three reasons.
First, to the extent the motion supports a claim of actual innocence, the Court already
dismissed that claim in an Order [Docket No. 28] entered on July 5, 2017. Second, with
respect to the ineffective assistance of counsel argument in claim 3(b), “review under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.” Cullen, 563 U.S. at 181. Therefore, the Court must limit its review
of claim 3(b) to the evidence presented to the state courts in the postconviction
proceedings. Third, even assuming the evidence Mr. Jones seeks to discover and
present could undermine the Court’s resolution of the prejudice prong, the evidence does
21
not undermine Court’s conclusion that the state court reasonably rejected claim 3(b) on
the deficient performance prong.
Ultimately, Mr. Jones is not entitled to relief with respect to claim 3(b) because he
fails to demonstrate the state court ruling “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.
D. Claim 4
Mr. Jones contends in claim 4 that he received ineffective assistance of counsel
because trial counsel labored under a conflict of interest. More specifically, he contends
he was represented at trial by counsel from the public defender’s office even though
counsel from the public defender’s office also represented him in his prior cases that
served as the basis for potential impeachment and the habitual criminal counts. Mr.
Jones concedes that alternate defense counsel was appointed to represent him during
the habitual criminal proceedings. However, he contends his decision on whether to
testify at trial was impacted by uncertainty regarding the legality of his prior convictions
and his uncertainty could not be resolved while he was represented by counsel from the
public defender’s office.
“In the normal course, defendants claiming ineffective assistance of counsel must
satisfy the familiar framework of Strickland v. Washington, 466 U.S. 668, 687 (1984),
which requires a showing that ‘counsel’s performance was deficient’ and ‘that the
deficient performance prejudiced the defense.’” Woods v. Donald, 135 S. Ct. 1372, 1375
(2015) (per curiam). A different analysis applies and prejudice is presumed “if the
22
defendant demonstrates that counsel ‘actively represented conflicting interests’ and that
‘an actual conflict of interest adversely affected [counsel’s] performance.’” Strickland,
466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980)). Under
Cuyler, “the possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler,
446 U.S. at 350. “An actual conflict of interest exists only if counsel was forced to make
choices advancing . . . interests to the detriment of his client.” Workman v. Mullin, 342
F.3d 1100, 1107 (10th Cir. 2003) (internal quotation marks omitted). “Furthermore, the
petitioner must be able to point to specific instances in the record that suggest his
interests were damaged for the benefit of another party.” Id. (internal quotation marks
omitted).
The Court finds that claim 4 must be dismissed because the Supreme Court has
not applied Cuyler’s presumption of prejudice outside the context of defense counsel’s
concurrent representation of multiple defendants in the same criminal proceeding. See
Mickens v. Taylor, 535 U.S. 162, 175-76 (2002) (stating it is “an open question” whether
the holding in Cuyler applies outside the context of concurrent representation of multiple
defendants). Because Mr. Jones’s conflict of interest claim is not premised on
concurrent representation of multiple defendants, there is no clearly established federal
law to be applied under § 2254(d)(1). See Schwab v. Crosby, 451 F.3d 1308, 1328 (11th
Cir. 2006) (a decision that Cuyler’s presumption of prejudice does not apply outside the
context of concurrent multiple legal representation is not contrary to or an unreasonable
application of clearly established federal law); Smith v. Hofbauer, 312 F.3d 809, 818 (6th
Cir. 2002) (Petitioner’s claim does not rest upon clearly established federal law because
23
Cuyler applies “only to joint representation and the Supreme Court has yet to extend
[Cuyler’s] reach to any other type of conflict.”). As noted above, the absence of clearly
established federal law ends the Court’s inquiry under § 2254(d)(1). See House, 527
F.3d at 1018.
Mr. Jones argues his conflict of interest argument in claim 4 is not governed by
Cuyler and that the relevant clearly established federal law is found in Holloway v.
Arkansas, 435 U.S. 475 (1978). The Court is not persuaded because Holloway also is a
joint representation case. See id. at 476-77. Thus, Holloway also is not clearly
established federal law with respect to the particular conflict issue Mr. Jones asserts in
claim 4.
Mr. Jones also fails to demonstrate the resolution of his conflict of interest claim
by the state courts was based on an unreasonable determination of the facts in light of the
evidence presented under § 2254(d)(2). Therefore, Mr. Jones is not entitled to relief with
respect to claim 4.
E. Claim 5
Mr. Jones contends in claim 5 that he received ineffective assistance of counsel
during the habitual criminal proceedings because alternate defense counsel failed to
challenge the validity of his prior convictions. Mr. Jones contends in support of claim 5
that counsel erroneously determined any attempt to challenge the prior convictions was
time-barred. The Colorado Court of Appeals determined this ineffective assistance of
counsel claim lacked merit because Mr. Jones could not demonstrate prejudice. The
state court specifically found an absence of prejudice under Strickland because “the
24
collateral attacks on defendant’s prior convictions were timebarred under [Colorado state
law], and defendant did not and cannot establish justifiable excuse or excusable neglect.”
Docket No. 10-7 at 8.
Mr. Jones does not argue the state court applied law that contradicts Strickland
and he fails to identify any materially indistinguishable Supreme Court decision that would
compel a different result. See House, 527 F.3d at 1018. Therefore, he is not entitled to
relief with respect to claim 5 under the “contrary to” clause of § 2254(d)(1).
Mr. Jones also fails to demonstrate the state court’s ruling regarding prejudice was
based on an unreasonable determination of the facts in light of the evidence presented
under § 2254(d)(2) or an unreasonable application of Strickland under § 2254(d)(1). Mr.
Jones concedes that any challenges to his prior convictions were time-barred under state
law in the absence of a showing of justifiable excuse or excusable neglect and he fails to
present clear and convincing evidence to overcome the presumption of correctness that
attaches to the factual determination that he failed to demonstrate either justifiable
excuse or excusable neglect. See Lankford v. Novac, 7 F. App’x 867, 868 (10th Cir.
2001) (“Whether a defendant has demonstrated ‘justifiable excuse or excusable neglect’
is a factual matter determined in accordance with state law . . . .”). In light of this
presumptively correct factual determination, it was not unreasonable to conclude he
could not establish prejudice under Strickland.
Ultimately, Mr. Jones is not entitled to relief with respect to claim 5 because he fails
to demonstrate the state court ruling “was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded
25
disagreement.” Richter, 562 U.S. at 103.
F. Claim 6
Mr. Jones contends in claim 6 that his constitutional rights were violated because
he was subjected to a vindictive prosecution. Mr. Jones specifically contends he was
punished for exercising his constitutional rights in a prior case in which he argued the
prosecution had breached a plea agreement. According to Mr. Jones, the prosecutor
who tried his case, Gordon Denison, had secured a conviction against Mr. Jones in a prior
case through a plea agreement and, after Mr. Jones successfully moved to vacate that
conviction, Mr. Denison took over the instant case that originally was assigned to another
prosecutor and filed habitual criminal charges in order to make sure Mr. Jones spends the
rest of his life in prison.
Clearly established federal law in the context of vindictive prosecutions provides
that:
[t]o punish a person because he has done what the law
plainly allows him to do is a due process violation of the most
basic sort, and for an agent of the State to pursue a course of
action whose objective is to penalize a person’s reliance on
his legal rights is patently unconstitutional.
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (internal citation and quotation marks
omitted). Certain circumstances give rise to a presumption that the prosecutor or
sentencing judge acted with unconstitutional vindictiveness in charging or sentencing a
criminal defendant. See North Carolina v. Pearce, 395 U.S. 711, 725 (1969) (holding
that due process “requires that vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the sentence he receives after a new
26
trial”); Blackledge v. Perry, 417 U.S. 21, 27 (1974) (holding there was a “realistic
likelihood of vindictiveness” when a prosecutor reindicted a convicted misdemeant on a
felony charge after the defendant invoked an appellate remedy). However, there is no
clearly established federal law applying a presumption of vindictiveness to charging
decisions made before trial. See United States v. Goodwin, 457 U.S. 368, 380-84 (1982)
(holding that presumption of prosecutorial vindictiveness is not warranted where the
prosecutor brought a felony charge in place of the original misdemeanor charges after
defendant requested a jury trial); Bordenkircher, 434 U.S. at 363-65 (holding there was no
due process violation when the prosecutor carried out a threat, made during plea
negotiations, to bring additional charges if the defendant refused to plead guilty to the
original charges). Absent a presumption of vindictiveness a defendant must affirmatively
prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 569 (1984).
The Colorado Court of Appeals rejected Mr. Jones’ vindictive prosecution claim
because “the record does not support defendant’s claim of vindictiveness [and] [t]here is
no evidence that defendant’s constitutional rights were chilled by a threat made by the
prosecution.” Docket No. 10-7 at 21.
Mr. Jones does not argue the state court applied law that contradicts the clearly
established federal law regarding vindictive prosecutions and he fails to identify any
materially indistinguishable Supreme Court decision that would compel a different result.
See House, 527 F.3d at 1018. Therefore, he is not entitled to relief with respect to claim
6 under the “contrary to” clause of § 2254(d)(1).
Mr. Jones also fails to demonstrate the state court’s ruling regarding his vindictive
27
prosecution claim was based on an unreasonable determination of the facts in light of the
evidence presented under § 2254(d)(2). As noted above, Mr. Jones asserts the
prosecution was vindictive because Mr. Denison vowed to make sure he would spend the
rest of his life in prison and filed habitual criminal charges because Mr. Jones had
successfully challenged his guilty plea in a prior case. Mr. Jones fails, however, to
present clear and convincing evidence to overcome the presumption of correctness that
attaches to the state court’s factual determinations that there was no evidence of any
vindictiveness. See 28 U.S.C. § 2254(e)(1). In fact, the state court record confirms that
the habitual criminal charges against Mr. Jones were included in the very first information
that was filed by a different prosecutor before Mr. Denison took over. See State Ct. R.
(Court File) at 7-10.
Based on the fact that the habitual criminal charges were included in the first
information filed before Mr. Denison was involved in the prosecution, Mr. Jones cannot
demonstrate the state court’s ruling regarding his vindictive prosecution claim was based
on an unreasonable application of clearly established federal law under § 2254(d)(1).
No clearly established federal law gives rise to a presumption of prejudice under these
circumstances and, in the absence of any evidence of vindictiveness, it was not
unreasonable to conclude Mr. Jones was not denied due process. To the extent Mr.
Jones may be asserting he should be allowed to conduct discovery regarding claim 6 or
that an evidentiary hearing is required, the Court rejects the argument because the
Court’s review ‘is limited to the record that was before the state court that adjudicated the
claim on the merits” Cullen, 563 U.S. at 181.
28
For these reasons, Mr. Jones is not entitled to relief with respect to claim 6.
IV. CONCLUSION
For the reasons discussed in this order, Mr. Jones is not entitled to relief on any of
his remaining claims. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 [Docket No. 1] is denied and this case is dismissed with prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c). It is further
ORDERED that the Motion for Discovery and Evidentiary Hearing [Docket No. 45],
the Motion for Appointment of Counsel [Docket No. 44], and the motion [Docket No. 51]
seeking leave to proceed in forma pauperis in connection with the motion for appointment
of counsel are denied.
Dated April 26, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
29
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