Ford v. Raemisch et al

Filing 30

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS. ORDERED: The amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 9 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), by Judge William J. Martinez on 2/12/2018. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-01395-WJM
CHARLES K. FORD,
Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9) (the “Am ended Application”) filed pro
se by Applicant Charles K. Ford. Respondents have filed an Answer to Petition for Writ
of Habeas Corpus (ECF No. 24) (“the Answer”). Mr. Ford subsequently filed four letters
(ECF Nos. 25, 27, 28, & 29) asserting that his claims have merit. After reviewing the
Amended Application, the Answer, the state court record, and Mr. Ford’s letters, the
Court FINDS and CONCLUDES that the Amended Application should be denied and
the case dismissed with prejudice.
I. BACKGROUND
Mr. Ford is challenging the validity of his conviction and sentence in Denver
District Court case number 08CR10514. The following background information is taken
from the opinion of the Colorado Court of Appeals on postconviction appeal.
¶2

In a city park, defendant got into a fistfight with the

victim. After the fight ended and the victim was walking
away, defendant acquired a gun from an acquaintance and
shot the victim several times. Although initially charged with
first degree murder, pursuant to a plea agreement,
defendant pleaded guilty to one count of second degree
murder and one count of first degree assault in the shooting
death of the victim. As part of the plea agreement,
defendant agreed to provide truthful information and
testimony about other crimes and the perpetrators of those
crimes. In exchange, the prosecution agreed to limit the
sentence to between thirty-five and sixty years in the
custody of the Department of Corrections (DOC) and to
allow the court to consider defendant’s cooperation in those
other cases in determining the sentence and whether to
reduce the sentence on reconsideration.
¶3
Defendant’s sentencing was postponed for several
months to allow him to provide testimony on those other
cases and to enable the court to consider his cooperation in
arriving at an appropriate sentence within the stipulated
range. As it turned out, however, all of those cases were
resolved without the prosecution needing defendant to
testify.
¶4
Before sentencing, defendant’s two attorneys, Mr.
Rios and Ms. Frei, filed a Crim. P. 32(d) motion to withdraw
defendant’s guilty plea, alleging that they had provided
ineffective assistance. At the same time, they sought to
withdraw as his counsel and to have alternate defense
counsel appointed. The district court denied both the Crim.
P. 32(d) motion and counsel’s motion to withdraw, and
sentenced defendant to consecutive prison terms of
thirty-two years on the second degree murder conviction and
twelve years on the first degree assault conviction. A
division of this court affirmed the denial of defendant’s Crim.
P. 32(d) motion. See People v. Ford, (Colo. App. No.
10CA1090, Mar. 15, 2012) (not published pursuant to C.A.R.
35(f)).
¶5
After the mandate issued following his direct appeal,
defendant filed a pro se Crim. P. 35(b) motion for
reconsideration of his sentence. The district court denied
that motion, finding that defendant’s sentence was within the
range provided for in the plea agreement, was appropriate
when entered, and remained appropriate.
2

¶6
Defendant thereafter filed a pro se Crim. P. 35(c)
motion alleging that he received ineffective assistance of
counsel because (1) Mr. Rios promised him that his initial
sentence would be cut in half on reconsideration; (2) Mr.
Rios did not accurately advise him that he would have to
serve seventy-five percent of his sentence before becoming
parole eligible; (3) he was promised as part of the plea
agreement that he would be transferred out of state, but Mr.
Rios failed to require specific performance of that promise;
and (4) he was coerced into pleading guilty because his
attorneys failed to fully investigate the facts of the case and
his self-defense claim and pressured him into accepting the
plea. He also alleged that, but for counsel’s deficient
performance, he would not have accepted the plea, and
instead, would have insisted on going to trial.
¶7
The district court, by a written order, denied the claim
regarding plea counsel’s failure to investigate because
defendant failed to allege with specificity what investigation
could have been done, what the result of such an
investigation would have been, and how it would have
changed his decision to plead guilty. However, the court
found that defendant’s remaining claims had arguable merit
and appointed counsel to represent him.
¶8
A supplemental motion filed by counsel reiterated
defendant’s first three claims, specifically alleging that plea
counsel had promised defendant he would be sentenced to
thirty-five years and that the sentence would be reduced to
seventeen and a half years upon reconsideration. The
supplemental motion alleged that the promises made as part
of the plea agreement were unenforceable and that
defendant therefore should be allowed to withdraw his plea.
¶9
At the postconviction hearing, defendant, Mr. Rios,
Ms. Frei, and the district attorney testified. The court denied
defendant’s motion by a written order. The court found
credible Mr. Rios’ testimony that he never promised
defendant a sentence of thirty-five years or told him that it
would be cut in half on reconsideration. The court also
found that the plea agreement did not include a promise that
defendant would serve his sentence out of state. The court
noted that neither the People nor def endant’s attorney had
the authority to get him transferred, but that they could make
a request to the DOC for such a transfer, which was
3

completely within the DOC’s discretion. Thus, the court
concluded that because defendant was fully advised about
his plea agreement and Rios did not make additional
promises to him, he failed to establish that his counsel’s
performance was deficient.
(ECF No. 14-6 at 3-7) (People v. Ford, No. 15CA0438 (Colo. App. Mar. 16, 2017)
(unpublished)). The Colorado Court of Appeals affirmed the trial court’s order denying
the Rule 35(c) motion. (See ECF No. 14-6).
Mr. Ford asserts two claims in the Amended Application. According to
Respondents, Mr. Ford contends in claim 1 that counsel were ineffective when they: (a)
promised Mr. Ford his initial sentence would be cut in half on reconsideration; (b) did
not accurately advise Mr. Ford he would have to serve seventy-five percent of his
sentence before being eligible for parole; (c) failed to require specific performance of a
plea-agreement promise that Mr. Ford would be transferred out of state for his safety;
and (d) coerced Mr. Ford’s guilty plea by failing to fully investigate the facts of the case
and his self-defense claim. Mr. Ford contends in claim 2 that the terms of his plea
agreement were breached.
The Court previously entered an Order to Dismiss in Part (ECF No. 22)
dismissing claim 1(d) and claim 2.
II. STANDARDS OF REVIEW
The Court must construe the Amended Application and other papers filed by Mr.
Ford liberally because he is not represented by an attorney. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10 th Cir.
1991). However, the Court should not be an advocate for a pro se litigant. See Hall,
935 F.2d at 1110.
4

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). Mr. Ford 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, “determ ining 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 m ust 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 (10 th Cir. 1999). Therefore, the Court
5

“must uphold the state court’s summary decision unless [the Court’s] independent
review of the record and pertinent federal law persuades [the Court] that its result
contravenes or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Id. at 1178.
“[T]his ‘independent review’ should be distinguished from a full de novo review of the
petitioner’s claims.” Id.
The threshold question the Court must answer under § 2254(d)(1) is whether Mr.
Ford 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 (10 th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry under § 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
6

materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from
[that] precedent.” Maynard [v. Boone], 468 F.3d [665,] 669
[(10th Cir. 2006)] (internal quotation marks and brackets
omitted) (quoting Williams, 529 U.S. at 405). “The word
‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually
opposed.’” Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it
identifies the correct governing legal rule from Supreme
Court cases, but unreasonably applies it to the facts. Id. at
407-08.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judg ment 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 . . .
7

could have supported[] the state court’s decision” and then “ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with
the holding in a prior decision of [the Supreme] Court.” Id. 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
must presume that the state court’s factual determinations are correct and Mr. Ford
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 (10 th Cir. 2015). The
presumption of correctness also applies to implicit factual findings. See Ellis v.
Raemisch, 872 F.3d 1064, 1071 n.2 (10 th Cir. 2017). “The standard is demanding but
8

not insatiable . . . [because] ‘[d]eference does not by definition preclude relief.’” MillerEl v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340
(2003)).
Finally, the Court’s analysis is not complete “[e]ven if the state court decision
was contrary to, or involved an unreasonable application of, clearly established federal
law.” Bland v. Sirmons, 459 F.3d 999, 1009 (10 th Cir. 2006). “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) . . . .” Id.;
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must
conduct harmless error analysis under Brecht anytime 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 ef fect” on the jury’s
verdict. Brecht, 507 U.S. at 637. “A ‘substantial and injurious ef fect’ 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 (10 th 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.

9

See Byrd v. Workman, 645 F.3d 1159, 1167 n.9 (10 th Cir. 2011).
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 (10 th
Cir. 2004).
III. MERITS OF REMAINING CLAIMS
Mr. Ford contends in each of his remaining claims that plea counsel were
ineffective with respect to his sentence. It was clearly established when Mr. Ford was
convicted that a defendant has a Sixth Amendment right to the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Furthermore, “the twopart Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58 (1985).
To establish counsel was ineffective Mr. Ford 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. Ford’s 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
must have been completely unreasonable, not merely wrong.” Boyd v. Ward, 179 F.3d
904, 914 (10 th Cir. 1999).

10

Under the prejudice prong Mr. Ford 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.”). A defendant is prejudiced by counsel’s deficient performance that
allegedly led to the improvident acceptance of a guilty plea if “there is a reasonable
probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty
and would have insisted on going to trial.” Hill, 474 U.S. at 59. In determining whether
Mr. Ford has established prejudice the Court must look at the totality of the evidence
and not just the evidence that is helpful to Mr. Ford. See Boyd, 179 F.3d at 914.
If Mr. Ford 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 (10 th 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).
In addressing Mr. Ford’s ineffective assistance of counsel claims the Colorado
Court of Appeals initially recounted the evidence presented to the trial court in the
postconviction proceedings.
1. Crim. P. 11 Advisement
¶ 11

Defendant’s written Crim. P. 11 advisement provided
11

that defendant would plead guilty to one count of second
degree murder and one count of first degree assault, that
the prosecution would dismiss the original charge of first
degree murder, that defendant would be sentenced to
between thirty-five and sixty years in prison for these
offenses, and that defendant would have to cooperate fully
with the prosecution in other cases, including by giving
truthful testimony.
2. Video of Plea Agreement
¶ 12 A videotaped recording of the prosecutor, made in the
presence of defendant’s lawyers, explaining the plea
agreement to defendant was admitted as an exhibit at the
postconviction hearing. In that video, the prosecutor
reiterated that the agreement was that defendant would
provide complete and truthful information and testimony in
any subsequent hearing, trial or court proceeding at which
the prosecution would require him to testify. In exchange,
the prosecution was offering him the chance to plead guilty
in this murder case and be sentenced to between thirty-five
and sixty years in prison, plus a period of parole. The
prosecutor explained that what would drive defendant’s
ultimate sentence would be his level of cooperation and
truthfulness in subsequent court cases. The prosecutor also
stated that, because defendant was providing information,
he would, as part of the plea agreement, contact the DOC
and request that defendant be incarcerated somewhere
outside of Colorado, but that he could not promise that the
DOC would do that and could not make any promise as to
where defendant would be incarcerated.
3. Defendant’s Testimony
¶ 13 Defendant testified consistently with the allegations in
his motion. He told the court that Mr. Rios and Ms. Frei
were the public defenders appointed to represent him in this
case, and that he understood Mr. Rios as telling him that “I
could - a plea deal was offered to me. And upon my
testimony in my codefendant’s case I would plead guilty to a
35-year sentence. He would file a 35(b). It would be cut in
half to 17 years. And upon me getting the 17, I would
possibly - I would be able to get it to be housed out of state.”
He also said that there was no discussion about how much
time he would serve with any kind of parole calculation.
12

¶ 14 Further, when testifying about why he agreed to the
plea, defendant said, “Mr. Rios had repeatedly stated 35
being cut in half to 17. It was the only reason.”
¶ 15 On cross-examination, defendant stated he did not
remember being told that whether he got transferred out of
state was up to the DOC’s discretion and that the prosecutor
could not promise that he would get transferred. He did say,
however, that he never asked Mr. Rios or the prosecutor to
have him moved out of state. On recross-examination,
defendant admitted that he understood that the prosecutor
wanted to keep him safe and that unless he was named as a
witness in a particular case or asked to be moved, the
prosecutor was not going to try to get him moved.
4. Ms. Frei’s Testimony
¶ 16 Ms. Frei testified that she was second chair on
defendant’s case and was not present during all of the
conversations Mr. Rios had with defendant. However, she
testified that she was present during a conversation between
defendant and Mr. Rios just before defendant entered his
guilty plea in which Mr. Rios explained the plea agreement
to defendant. She said that because the range was large,
defendant was concerned with the actual number of years
he would get, and Mr. Rios indicated that he thought
defendant would get a sentence in the low end, thirty-five or
thirty-six years, and that he believed defendant was looking
for a sentence in the range of eighteen years. She testified
that she was concerned about Mr. Rios’s use of those
numbers with defendant, because she thought defendant
would interpret those numbers as promises or guarantees.
She also said that she had “developed a very strong sense
from that conversation that [Mr. Rios] was implying to
[defendant] that he had some sort of kind of unwritten
understanding with the prosecution that that’s where it would
go.”
¶ 17 Ms. Frei also testified that in rating the representation
defendant received, she would characterize it as “sloppy,”
and when asked if she thought he received effective
assistance of counsel, she answered: “Not in terms of the
advisement that he received as to the plea agreement and
what was a given and not a given, no.”
13

¶ 18 However, when asked on cross-examination whether
Mr. Rios was promising defendant a particular sentence, she
testified that her recollection of the conversation was that
she thought “Mr. Rios was forecasting and using his
experience to estimate what he believed [defendant] would
get. That he would get a sentence on the lower end of the
range.” She also conceded that she was aware that any
Crim. P. 35(b) reduction would be contingent on defendant’s
performance in those other cases and that she had nev er
been privy to any discussion about defendant being moved
out of state.
5. Mr. Rios’s Testimony
¶ 19 As pertinent here, Mr. Rios testified that he explained
the terms of the plea agreement to defendant, specifically
that the sentence would be in the thirty-five to sixty year
range and that there was no guarantee of what sentence the
court would impose. However, he told defendant that he
believed it could be in the lower end of the range and then
reduced upon reconsideration. He also stated that
defendant was aware that any potential reduction could not
be part of the plea agreement because it was contingent on
unknown events related to the other cases.
¶ 20 In addition, he explained that he discussed with
defendant that he would have to serve seventy-five percent
of his sentence because his offenses were crimes of
violence, but that according to someone in the DOC time
computation department, if defendant behaved, that number
could be reduced to as low as fifty-five percent. He also
testified that the number seventeen came up, but that it was
in connection with a discussion about what defendant could
ultimately end up serving. He stated that he told defendant
if the court reduced his initial sentence on reconsideration to
the minimum possible (twenty-six years), and if defendant
earned good time and earned time and behaved, he might
be eligible for parole after seventeen years.
¶ 21 In addition, although Mr. Rios indicated he never gave
defendant inaccurate advice, he testified that he did not
anticipate that all of the cases in which defendant provided
information to the police would be resolved without the use
of defendant’s testimony. Mr. Rios opined that he therefore
14

may have been ineffective because he did not advise
defendant of that possibility.
6. Prosecutor’s Testimony
¶ 22 The prosecutor who handled defendant’s case
testified that he had a strong case against defendant for the
murder, that defendant had prior experience with the
criminal justice system and offered information on a number
of other crimes, including other murders, in exchange for a
plea agreement. The disposition reached was thirty-five to
sixty years, but the ultimate sentence was contingent upon
defendant’s cooperation and the truthfulness of his
information. Thus, a reduced sentence as part of a Crim. P.
35(b) motion was not part of the plea because the quality of
defendant’s information at that time was unknown. In
addition, the prosecutor testified that defendant was
concerned for his safety and was interested in being
relocated, but indicated he had children and f amily in the
state and did not necessarily want to go out of state. He
was, however, interested in whether that was a possibility.
In addressing that concern, the prosecutor said he told
defendant he could not promise a transfer because that was
up to the DOC to decide, but that if he came to him and
wanted a transfer, he would go to the DOC and make that
request for him.
(ECF No. 14-6 at 7-14 (brackets in original).) The Colorado Court of Appeals then
recited the trial court’s findings and conclusions.
¶ 23 In the order denying defendant’s motion, the
postconviction court found that defendant’s testimony was
not credible and rejected his arguments. Specifically, the
court noted that defendant’s testimony at the postconviction
hearing contradicted the statements he made at his
providency hearing; and that if he was under the impression
that he would be sentenced closer to thirty-five years with
the possibility of a lower sentence, he had an opportunity at
his providency hearing to so inform the court, but did not do
so. In addition, the court found unpersuasive defendant’s
argument that his attorney promised him he would file a
Crim. P. 35(b) motion and that his initial sentence would be
cut in half. Neither the written plea agreement nor the
providency hearing included such promises. Thus, the court
15

found that defendant had not been promised either a
particular sentence or that it would be reduced on
reconsideration. As for defendant’s claim about serving his
sentence out of state, the court found, based on the
testimony of Mr. Rios and the prosecutor, that no such
promise had been made. Further, the court found that
defendant never asked Mr. Rios to be moved out of state.
(ECF No. 14-6 at 14-15.)
A. Claim 1(a)
Mr. Ford contends in claim 1(a) that counsel were ineffective by promising his
initial sentence would be cut in half on reconsideration. In the state court proceedings
he also asserted a related argument that counsel promised his initial sentence would be
thirty-five years. The Colorado Court of Appeals recited and applied the two-part
Strickland test and rejected this claim because the record supported the trial court’s
findings.
¶ 30 Here, the court’s findings are based on its
assessment of the credibility of the testimony of defendant
and the other witnesses. The court expressly found that it
did not believe defendant’s testimony that Mr. Rios promised
him a specific sentence of thirty-five years and that it would
later be cut in half on reconsideration. Notably, the court
found that defendant’s contrary statements at the providency
hearing carried more weight than either his or Ms. Frei’s
testimony at the postconviction hearing. Particularly
important to the court’s determination was that defendant
never told the court at his providency hearing that his
understanding of the plea was different, or that anyone had
made him any promises other than the ones discussed in
open court. Further, in reaching its conclusion, the court
found credible Mr. Rios’s testimony that defendant
understood that the court would ultimately determine his
sentence.
¶ 31 The court’s findings are supported by the record,
which includes Mr. Rios’s testimony that he never promised
defendant a particular sentence and that his assessm ent of
16

a likely sentence was only a prediction based on his
experience and that ultimately the judge would decide the
sentence. He also testified that he explained to defendant
that his sentence would be based on his cooperation and
testimony in the other cases, and that a reduction in his
sentence would be dependent on his behavior in the DOC
and what programs he completed.
¶ 32 In addition, the videotape of the plea agreement
demonstrates that the prosecutor explained to defendant
that his ultimate sentence would be up to the district court,
but that defendant’s truthfulness and cooperation in those
other cases would be considered by the court in sentencing
defendant.
¶ 33 Thus, although there was conflicting testimony at the
postconviction hearing, we conclude that the court did not
abuse its discretion in finding that defendant was properly
advised about the sentence he could receive upon entry of
his conviction. As the court noted, if defendant received
advice different from what was discussed at the providency
hearing, he had an affirmative obligation to inform the court
at that time. See People v. DiGuglielmo, 33 P.3d 1248,
1251 (Colo. App. 2001). Further, trial counsel’s erroneous
assessment or estimate of a probable sentence does not
constitute ineffective assistance of counsel. See People v.
Zuniga, 80 P.3d 965, 973 (Colo. App. 2003); People v.
Williams, 908 P.2d 1157, 1161 (Colo. App. 1995).
¶ 34 Defendant argues on appeal that the court ignored
Mr. Rios’s own statement that he believed he was ineffective
in representing defendant because he never anticipated that
all of the cases defendant provided information on would be
disposed of without the use of his testimony. However,
because counsel’s testimony about not anticipating how
those cases would be resolved was based on hindsight, we
conclude that it does not establish that counsel’s conduct
was deficient at the time defendant entered his guilty plea.
See Dunlap, 173 P.3d at 1062-63.
¶ 35 As for defendant’s related assertion that his attorney
promised that his initial sentence would be cut in half upon
the filing of a Crim. P. 35(b) motion for reconsideration, the
court found that defendant had never been promised that
the reduction would be automatic, but rather, had been
17

advised that any Crim. P. 35(b) reduction would be
dependent on his testimony in the other cases and would be
discretionary. Again, this finding is supported by the record.
Specifically, Mr. Rios testified that he discussed the possible
reduction in the sentence upon a Crim. P. 35(b) motion for
reconsideration with defendant, and that based on the
information or testimony he provided in those other cases
and his behavior in the DOC, the court could, in its
discretion, reduce his sentence, but that the num ber could
not go below the minimum sentence required for the crimes.
(ECF No. 14-6 at 19-22.)
Mr. Ford does not argue that the state court’s decision with respect to claim 1(a)
is contrary to Strickland under § 2254(d)(1). In other words, he does not cite any
contradictory governing law set forth in Supreme Court cases or any materially
indistinguishable Supreme Court decision that would compel a different result. See
House, 527 F.3d at 1018.
Mr. Ford also fails to demonstrate the state court’s decision with respect to claim
1(a) was based on an unreasonable determination of the facts in light of the evidence
presented under § 2254(d)(2). As noted above, the Court presumes the state court’s
factual determinations are correct and Mr. Ford bears the burden of rebutting the
presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Notably,
the presumption of correctness applies to the determination that Mr. Ford was not
credible when he testified he was promised a specific sentence of thirty-five years and
that his sentence would be cut in half on reconsideration. See Rice v. Collins, 546 U.S.
333, 338-39 (2006) (treating a credibility determination as a factual determination in the
habeas context). The presumption of correctness also applies to the state court factual
findings regarding the credibility of the other witnesses and the finding that neither the
18

written plea agreement nor the providency hearing included a promise of a particular
sentence that would be cut in half upon reconsideration. Although Mr. Ford points to
testimony from Mr. Rios that he may have been ineffective and from Ms. Frei that the
representation was sloppy, he does not present clear and convincing evidence that
would overcome the presumption of correctness. The mere existence of conflicting
testimony, which the state courts acknowledged, is not clear and convincing evidence
that overcomes the presumption of correctness. The conflicting testimony also does
not demonstrate the state court’s rejection of claim 1(a) was based on an unreasonable
determination of the facts in light of the evidence presented.
Mr. Ford also fails to demonstrate the state court’s ruling was an unreasonable
application of the general Strickland standard under § 2254(d)(1). In light of the factual
findings that Mr. Ford was not credible and that he was not promised a particular
sentence or sentence reduction, it was not unreasonable for the state court to conclude
this ineffective assistance of counsel claim lacks merit. It also was reasonable to rely
on Mr. Ford’s providency hearing statements that no other promises were made
because “[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). The state court also reasonably
concluded that counsel’s erroneous assessment of Mr. Ford’s probable sentence is not
sufficient to support an ineffective assistance of counsel claim. See United States v.
Washington, 619 F.3d 1252, 1258-59 (10 th Cir. 2010) (“Although defense counsel’s
predictions later proved incorrect, our precedent was clear that ‘a miscalculation or
erroneous sentence estimation’ by a defense counsel is not a constitutionally deficient
performance rising to the level of ineffective assistance of counsel.”).
19

Mr. Ford is correct that Mr. Rios testified he was ineffective, but that admission
related only to counsel’s failure to anticipate that Mr. Ford’s testimony might not be
needed in the other cases for which he had offered information. Mr. Rios did not testify
he was ineffective with respect to advising Mr. Ford about the sentencing range he
faced or by promising his sentence would be cut in half. In any event, the state court
reasonably concluded Mr. Rios’s failure to anticipate how the other cases would be
resolved was based on hindsight and did not establish counsel was ineffective.
Ultimately, Mr. Ford 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.
Therefore, he is not entitled to relief with respect to claim 1(a).
B. Claim 1(b)
Mr. Ford contends in claim 1(b) that counsel were ineffective because they failed
to accurately advise him he would have to serve seventy-five percent of his sentence
before being eligible for parole. The Colorado Court of Appeals did not explicitly
address the precise argument Mr. Ford raises in claim 1(b). However, as noted above,
“[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.” Richter, 562 U.S. at 99; see also Early v. Packer, 537 U.S. 3, 8 (2002) (per
curiam) (an adjudication on the merits “does not require citation of [Supreme Court]
cases – indeed, it does not even require awareness of [Supreme Court] cases, so long
as neither the reasoning nor the result of the state-court decision contradicts them.”).
20

Mr. Ford does not argue that the Colorado Court of Appeals did not adjudicate the
substance of claim 1(b) on the merits. Therefore, the Court considers claim 1(b) under
the deferential standards in § 2254(d).
Mr. Ford fails to demonstrate that the decision of the Colorado Court of Appeals
is contrary to clearly established federal law. He does not cite any contradictory
governing law set forth in Supreme Court cases or any materially indistinguishable
Supreme Court decision that would compel a different result under § 2254(d)(1). See
House, 527 F.3d at 1018.
Mr. Ford also fails to demonstrate the state court’s ruling with respect to claim
1(b) was based on an unreasonable determination of the facts in light of the evidence
presented under § 2254(d)(2). The evidence presented included Mr. Ford’s testimony
“that there was no discussion about how much time he would serve with any kind of
parole calculation” (ECF No. 14-6 at 9) and Mr. Frei’s contradictory testimony that he
advised Mr. Ford he would have to serve seventy-five percent of his sentence because
his offenses were crimes of violence. As discussed in connection with claim 1(a), the
state courts determined as a factual matter that Mr. Ford’s testimony was not credible
and that Mr. Frei’s testimony was credible. Mr. Ford does not rebut the presumption of
correctness that attaches to these factual determinations under § 2254(e)(1).
Therefore, Mr. Ford is not entitled to relief under § 2254(d)(2).
Finally, Mr. Ford fails to demonstrate the state court’s ruling was an
unreasonable application of Strickland under § 2254(d)(1). In light of the presumptively
correct factual determination that Mr. Frei accurately advised Mr. Ford about his parole
eligibility, it was reasonable to conclude counsel was not ineffective.
21

Ultimately, Mr. Ford fails to demonstrate the state court’s decision with respect to
claim 1(b) “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. Therefore, Mr. Ford is not entitled to relief with respect to
claim 1(b).
C. Claim 1(c)
Mr. Ford finally contends in claim 1(c) that counsel were ineffective by failing to
require specific performance of a plea-agreement promise that Mr. Ford would be
transferred out of state for his safety. The Colorado Court of Appeals considered this
claim under Strickland and rejected it for the following reasons:
¶ 37 To the extent defendant argues in his reply brief that
the court erred in finding that counsel’s performance was not
deficient as it related to the agreement to have him
transferred out of state, we disagree.
¶ 38 First, as argued in his pro se motion, defendant
alleged that he was promised he would be transferred to a
prison out of state and that his counsel failed to enforce that
promise. The postconviction court rejected this argument,
finding that defendant’s assertion of such a promise was
incredible because neither the prosecutor nor def ense
counsel had the authority to make such a promise, as the
DOC is responsible for making that decision. The evidence
in the record supports the court’s conclusion that no such
promise was made. Specifically, the video recording of the
plea agreement shows that the prosecutor explained in
detail to defendant that he could not promise defendant
would be transferred because the decision to make an outof-state transfer was solely within the DOC’s discretion.
¶ 39 Second, while the written motion focused on an
alleged promise to be transferred, the testimony at the
postconviction hearing seemed to suggest that the
prosecution promised to request the transfer if defendant,
through his attorney, specifically asked the prosecution to
22

make the request to the DOC. In defendant’s closing
argument at the postconviction hearing, he argued that
counsel was ineffective for failing to make that request to the
prosecutor.
¶ 40 The court summarily rejected this claim in its order,
finding that defendant never asked his counsel to contact
the prosecution to make the request. Again, because the
record supports the court’s order on this issue, we will not
disturb it on appeal.
¶ 41 At the postconviction hearing, defendant testified that
he never asked counsel to request that the prosecutor
contact the DOC for a transfer. Also, Mr. Rios testified that
prior to entry of the plea, defendant was ambivalent about
whether he wanted to be moved out of state because he
would not be near his family, and thus, he never asked the
prosecutor to request the transfer. Accordingly, because the
record supports the court’s finding, we will not disturb it on
appeal. See Dunlap, 173 P.3d at 1061-62.
(ECF No. 14-6 at 23-25.)
Mr. Ford again fails to demonstrate the decision of the Colorado Court of
Appeals is contrary to clearly established federal law. He does not cite any
contradictory governing law set forth in Supreme Court cases or any materially
indistinguishable Supreme Court decision that would compel a different result under §
2254(d)(1). See House, 527 F.3d at 1018.
Mr. Ford also fails to demonstrate the state court’s ruling with respect to claim
1(c) was based on an unreasonable determination of the facts in light of the evidence
presented under § 2254(d)(2). The state courts determined as a factual matter that Mr.
Ford was not promised he would be transferred out of state and that he never
requested a transfer. These factual determinations are presumed correct under §
2254(e)(1) and Mr. Ford presents no evidence to overcome that presumption.
23

Therefore, he is not entitled to relief under § 2254(d)(2).
Finally, Mr. Ford fails to demonstrate the state court’s ruling was an
unreasonable application of Strickland under § 2254(d)(1). In light of the presumptively
correct factual determination that Mr. Ford was not promised a transfer and that he
never requested a transfer, he cannot demonstrate the state courts unreasonably
concluded counsel was not ineffective. In other words, the state courts reasonably
concluded counsel was not ineffective by failing to require specific performance of a
nonexistent promise.
Ultimately, Mr. Ford fails to demonstrate the state court’s decision with respect to
claim 1(c) “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. Therefore, he is not entitled to relief with respect to claim
1(c).
V. CONCLUSION
In summary, the Court finds that Mr. Ford is not entitled to relief on his remaining
claims. Accordingly, it is
ORDERED that the amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 9) is denied and this case is dism issed 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).

24

Dated this 12th day of February, 2018.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

25