Hardin v. Jaques et al
Filing
34
ORDER Denying 6 Amended Application for Writ of Habeas Corpus by Judge Christine M. Arguello on 5/7/2019. (swest)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02626-CMA
WILLIAM DANIEL HARDIN,
Applicant,
v.
TERRY JAQUES, Warden,
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents.
ORDER DENYING AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS
The matter before the Court is an Amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. ' 2254 filed pro se by Applicant. (Doc. # 6). The Court
has determined it can resolve the Application without a hearing. See 28 U.S.C.
' 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).
I.
BACKGROUND
In 1988, Mr. Hardin was convicted by a jury of two counts of aggravated robbery,
two counts of felony murder, and two counts of murder after deliberation. He was
sentenced to consecutive terms of sixteen years for each aggravated robbery conviction
and life imprisonment for each felony murder.
The Colorado Court of Appeals provides the following detailed account of the
background in this case:
1
Hardin was accused of robbing three men, Isaac Fisher, Victor Irving, and
Lloyd Rhodes, and of killing two of the men, Fisher and Irving. The
prosecution charged Hardin with one count of aggravated robbery for the
robbery of all three men and with two counts each of felony murder and
murder after deliberation with respect to the killings of Fisher and Irving.
When Hardin’s 1988 trial concluded, the jury found him guilty by separate
verdict forms of two counts of aggravated robbery regarding Irving and
Rhodes and two counts each of felony murder and murder after
deliberation with respect to Fisher and Irving. The jury acquitted Hardin of
the aggravated robbery count with respect to Fisher.
The trial court entered a judgment of conviction and sentenced Hardin to
consecutive terms of imprisonment of sixteen years for each aggravated
robbery conviction and life for each felony murder conviction. It did not
sentence Hardin on the murder after deliberation convictions.
Several months after the trial, Hardin filed a notice of appeal regarding the
judgment of conviction. Soon after, he requested and was granted a
limited remand to pursue an ineffective assistance claim, pursuant to
Crim. P. 35(c), concerning his trial counsel. To avoid a conflict of interest,
the public defender’s office was allowed to withdraw from the
postconviction proceedings and the appeal. In granting the remand in
1991, a division of this court ordered that the postconviction proceedings
“be done with all due speed.”
Over the next six years, the postconviction court appointed a succession
of private attorneys to represent Hardin; they all withdrew before
resolution of the proceedings. The postconviction court repeatedly set the
matter, only to later vacate the settings. Hardin repeatedly expressed
frustration with his legal representation and with his appointed attorneys’
lack of action in the postconviction court and in this court.
A division of this court eventually vacated the limited remand and decided
Hardin’s direct appeal in 1997, about ten years after Hardin committed the
underlying crimes. See People v. Hardin, (Colo. App. No. 88CA1898, Dec.
18, 1997) (not published pursuant to C.A.R. 35(f)) (Hardin I). That division
affirmed Hardin’s convictions, but it remanded with instructions for the trial
court to vacate the felony murder conviction concerning Irving’s death,
enter a judgment of conviction for the count of murder after deliberation
concerning Irving’s death, and resentence Hardin accordingly. Id. That
division also concluded that Hardin’s ineffective assistance of counsel
claims should be considered in a postconviction proceeding. Id.
Hardin later filed a pro se Crim. P. 35(c) motion raising numerous claims,
2
including ineffective assistance of counsel. The postconviction court
denied the motion in 1999 without holding a hearing, appointing counsel,
or resentencing Hardin in accordance with the remand instructions.
Hardin appealed the 1999 order denying his postconviction motion. In
December 2000, a division of this court reversed the order and remanded
with instructions to hold further proceedings on Hardin’s postconviction
claims and to comply with the 1997 remand instructions regarding
resentencing. See People v. Hardin, (Colo. App. No. 99CA2405, Dec. 21,
2000) (not published pursuant to C.A.R. 35(f)) [(Hardin II)].
After the remand, the postconviction court appointed another attorney to
represent Hardin in April 2001. Over the next four years, and after the
postconviction court allowed several extensions of time to supplement
Hardin’s pro se Crim. P. 35(c) motion, Hardin’s appointed counsel failed to
file any supplement. Meanwhile, Hardin made numerous pro se filings
expressing his frustration with his attorney’s inaction and his desire to
obtain adequate counsel. In response to the inactivity in these
proceedings, the postconviction court appointed Hardin’s current attorney
in February 2005.
Almost eight years later, in December 2012 – about twenty-four years
after trial and about twelve years after Hardin filed his original Crim. P.
35(c) motion – the third and final trial judge to preside over this case since
the 2000 remand issued an order mandating that Hardin’s postconviction
proceedings “get moving.” Thereafter, Hardin’s attorney filed two
supplemental briefs in support of his motion for postconviction relief. The
postconviction court held an evidentiary hearing over three days on the
matter. After the hearing, the postconviction court denied Hardin’s motion.
In denying the motion, the postconviction court stated that the twelve-year
delay in the postconviction proceedings “did not amount to a remedial due
process violation . . . and, perhaps most importantly, did not legally
prejudice [Hardin].”
(Doc. # 13-9 at 2-6) (People v. Hardin, 405 P.3d 379 (Colo. App. 2016) (Hardin III).
Following the trial court’s lengthy written order, issued on February 26, 2014,
denying Mr. Hardin’s postconviction claims, (Doc. # 13-7), he appealed the denial, (Doc.
# 13-8). The Colorado Court of Appeals affirmed the denial of his postconviction claims
on December 1, 2016. Hardin III, (Doc. # 13-9). The Colorado Supreme Court denied
certiorari review on October 16, 2017. (Docs. # 13-10 and 13-11).
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Mr. Hardin filed the instant federal habeas corpus action on November 2, 2017.
(Doc. # 1). In the Amended Application, filed on November 28, 2017, Mr. Hardin
asserts the following ten claims for relief:
1. Mr. Hardin’s convictions for felony murder and aggravated robbery are
invalid because the jury failed to convict him of the charged aggravated
robbery which served as the underlying felony for the aggravated murder.
This violated the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution;
2. It was improper for Mr. Hardin to be convicted and sentenced for
aggravated robbery when that aggravated robbery served as the predicate
felony for a felony murder conviction;
3. The over eight year delay in adjudicating Mr. Hardin’s direct appeal
violated his rights under the due process and equal protection clauses of
the United States Constitution;
4. The trial court’s “acquittal first” instructions in Mr. Hardin’s case interfered
with the jury’s ability to consider lesser included offenses thus depriving
Mr. Hardin of his Fifth, Sixth and Fourteenth Amendment rights under the
United States Constitution;
5. The trial court erred in failing to provide testimony requested by the jury
during its deliberations thus violating Mr. Hardin’s rights as guaranteed by
the United States Constitution;
6. The Court’s over 12-year delay in resolving Mr. Hardin’s Crim. P. 35(c)
motion violated Mr. Hardin’s rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution, and the
corresponding Colorado Constitution;
7. The denial of Mr. Hardin’s right to counsel of choice violated the Sixth and
Fourteenth Amendments of the United States Constitution and clearly
established federal law;
8. Mr. Hardin’s appellate counsel rendered ineffective assistance of counsel
by failing to raise “counsel of choice” on direct appeal as this clearly
violated his constitutional rights and clearly established federal law;
9. Counsel was ineffective at Mr. Hardin’s trial thus violating Mr. Hardin’s
constitutional rights pursuant to the Sixth and Fourteenth Amendments;
4
10. Delay in the re-sentencing of Mr. Hardin of 15 years from the Court of
Appeals mandate in 88CA1898 requiring re-sentencing issued in 1998
following denial of a petition for certiorari to the Colorado Supreme Court,
commensurate with the delay in re-sentencing of Mr. Hardin of 12 years
from the Court of Appeals mandate in 99CA2405 requiring re-sentencing
in 2001 violates due process, speedy trial rights, and amounts to cruel and
unusual punishment.
(Doc. # 6).
On November 30, 2017, Magistrate Judge Gordon P. Gallagher ordered
Respondents to file a Pre-Answer Response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court
remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if they intended to raise either or both
of those defenses in this action. (Doc. # 7). After receiving an extension of time,
Respondents filed their Pre-Answer Response (Doc. # 13) on January 18, 2018,
arguing that the Application appeared timely but that Claims One, Two, Four, Five,
Seven, Eight, Nine and Ten were procedurally defaulted. Additionally, Respondents
argued that Claims One and Two were moot, and Claims Three, Six, and (part of) Nine
failed to present a cognizable habeas claim. Mr. Hardin filed a Reply (Doc. # 16) on
March 8, 2018, and a Supplement to the Reply (Doc. # 17) on March 30, 3018.
The Court reviewed the Pre-Answer Response, the Reply, and the Supplement
to the Reply, and filed an Order to Dismiss in Part and for an Answer on May 4, 2018.
See (Doc. # 22). In the May 4 Order, the Court determined that Claims One, Four,
Seven, Eight and Ten were procedurally defaulted and barred from federal habeas
review. Id. Additionally, Claim Two was dismissed as moot and Claim Six was
dismissed for failure to state a cognizable habeas claim. Id. Respondents were
5
directed to file an answer in compliance with Rule 5 of the Rules Governing Section
2254 Cases that fully addressed the merits of Claims Three and Five. Id. Additionally,
pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), the Court deferred ruling on the
applicability of a procedural bar to the ineffective assistance of counsel allegations
asserted in Claim Nine, pending receipt of the state court record and Respondents’
argument in the Answer as to whether the claim is substantial.
Respondents filed an Answer on June 28, 2018. (Doc. # 30). Applicant was
granted an extension of time to file a Reply. He filed a Traverse on August 22, 2018.
(Doc. # 33). After reviewing the Amended Application, the Answer, the Traverse, and
the state court record, the Court concludes, for the following reasons, that the
Application should be denied and the case dismissed with prejudice.
II.
HABEAS CLAIMS
The remaining claims for review on the merits, Claims Three and Five, are as
follows:
(3) The over eight-year delay in adjudicating Mr. Hardin’s direct appeal
violated his rights under the due process and equal protection clauses of
the United States Constitution;
(5) The trial court erred in failing to provide testimony requested by the jury
during its deliberations thus violating Mr. Hardin’s rights as guaranteed by
the United States Constitution.
Additionally, Claim Nine, which was procedurally defaulted, but might be subject
to review pursuant to Martinez v. Ryan is:
(9) Counsel was ineffective at Mr. Hardin’s trial thus violating Mr. Hardin’s
constitutional rights pursuant to the Sixth and Fourteenth Amendments.
(Doc. # 6).
6
III.
LEGAL STANDARDS
Section 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).
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. ' 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question pursuant to § 2254(d)(1) is whether Applicant seeks to
apply a rule of law that was clearly established by the Supreme Court at the time her
conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). The Areview
under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the prisoner=s claim on the merits.@ Cullen v. Pinholster, 563 U.S.170, 181
(2011). AFinality occurs when direct state appeals have been exhausted and a petition
for writ of certiorari from this Court has become time barred or has been disposed of.@
Greene v. Fisher, 565 U. S. 34, 39 (2011) (citing Griffith v. Kentucky, 479 U.S. 314, 321,
n.6 (1987).
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Clearly established federal law Arefers to the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant state-court decision.@
Williams, 529 U.S. 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)
Athe state court applies a rule that contradicts the governing law set forth
in Supreme Court cases@; or (b) Athe state court confronts a set of facts
that are materially indistinguishable from a decision of the Supreme Court
and nevertheless arrives at a result different from [that] precedent.@
Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). AThe word >contrary= is commonly understood to mean >diametrically
different,= >opposite in character or nature,= or >mutually opposed.= @
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of clearly
established federal law when it identifies the correct governing legal rule
from Supreme Court cases, but unreasonably applies it to the facts. Id. at
407-08. Additionally, we have recognized that an unreasonable
application may occur if the state court either unreasonably extends, or
unreasonably refuses to extend, a legal principle from Supreme Court
precedent to a new context where it should apply. Carter [v. Ward], 347
F3d. [860,] 864 [10th Cir. 2003] (quoting Valdez [v. Ward, 219 F.3d [1222]
1229-30 [10th Cir. 2000]).
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House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the Aunreasonable application@ clause is an
objective one. See Williams, 529 U.S. at 409-10. A[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[A]
decision is >objectively unreasonable= when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.@
Maynard, 468 F.3d at 671. In addition,
evaluating whether a rule application was unreasonable requires
considering the rule=s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[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.
Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation
omitted). The Court Amust determine what arguments or theories supported or . . .
could have supported[ ] the state court’s decision@ and then Aask 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. A[E]ven a strong
case for relief does not mean the state court’s contrary conclusion was unreasonable.@
Id. (citation omitted). ASection 2254(d) reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice systems, not a substitute for
9
ordinary error correction through appeal.@ Id. at 102-03 (internal quotation marks and
citation omitted).
Under this standard, Aonly the most serious misapplications of Supreme Court
precedent will be a basis for relief under ' 2254.@ Maynard, 468 F.3d at 671.
Furthermore,
[a]s a condition for obtaining habeas corpus relief 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.
The Court reviews claims of factual errors pursuant to 28 U.S.C. ' 2254(d)(2).
See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the state court decision was based
on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to ' 2254(e)(1), the Court must presume that the state court’s factual
determinations are correct, see Sumner v. Mata, 455 U.S. 591, 592-93 (1982), and
Applicant bears the burden of rebutting the presumption by clear and convincing
evidence, see Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997). AThe
standard is demanding but not insatiable . . . [because] >[d]eference does not by
definition preclude relief.=@ Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
A claim, however, may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for rejecting the claim. Richter,
10
562 U.S. at 98 (A[D]etermining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning@). Furthermore, A[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.
In other words, the Court Aowe[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 Amust uphold the state court’s summary decision unless
[its] independent review of the record and pertinent federal law persuades [it] that [the]
result contravenes or unreasonably applies clearly established federal law, or is based
on an unreasonable determination of the facts in light of the evidence presented.@ Id. at
1178. AThis >independent review= should be distinguished from a full de novo review of
the [applicant=s] claims.@ Id. (citation omitted). Likewise, the Court applies the AEDPA
(Antiterrorism and Effective Death Penalty Act) deferential standard of review when a
state court adjudicates a federal issue relying solely on a state standard that is at least
as favorable to the applicant as the federal standard. See Harris v. Poppell, 411 F.3d
1189, 1196 (10th Cir. 2005). If a claim was not adjudicated on the merits in state court,
and if the claim also is not procedurally barred, the Court must review the claim de novo
and the deferential standards of ' 2254(d) do not apply. See Gipson v. Jordan, 376
F.3d 1193, 1196 (10th Cir. 2004).
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IV.
ANALYSIS
Claim Three
Mr. Hardin alleges in Claim Three that his due process and equal protection
rights were violated because of the over eight-year delay in adjudicating his direct
appeal. The Colorado Court of Appeals addressed the merits of this claim and rejected
it as follows:
Defendant asserts that, because of delay in the adjudication of his direct
appeal, he was denied his rights to due process, equal protection, and the
effective assistance of counsel. Even assuming that the constitutional
right to due process includes a right to a reasonably prompt disposition of
a direct appeal, we find no violation of that right here.
In evaluating due process claims of denial of the right to a speedy appeal,
courts have used a four-factor balancing test similar to that used for
examining alleged speedy trial violations. See Barker v. Wingo, 407 U.S.
514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972) (setting forth speedy trial test);
Simmons v. Beyer, 44 F.3d 1160 (3rd Cir. 1995) (applying Barker test in
speedy appeal context). The factors include: (1) the length of delay; (2)
the reason for delay; (3) the defendant’s assertion of the right; and (4)
prejudice to defendant. Simmons v. Beyer, supra; Harris v. Champion, 15
F.3d 1538 (10th Cir. 1994).
The reason for the delay is a critical factor in the analysis. In the absence
of state-action, there can be no due process or other constitutional
violation. See Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73
L.Ed.2d 418 (1982); Sceifers v. Trigg, 46 F.3d 701 (7th Cir. 1995).
The delay cannot be attributed to the state based on the record before us.
Rather, the delay resulted from a series of continuances in the postconviction proceedings and delays in proceeding with the direct appeal, all
requested by defense counsel.
Defendant argues that the various post-conviction and appellate counsel
who represented him were providing ineffective assistance, and that such
ineffective assistance can be attributed to the state. However, our review
here is on direct appeal. We cannot discern from the record whether any
particular attorney’s representation was legally deficient, let alone whether
it can be attributed to the state. Because the issue can be better resolved
12
in a post-conviction proceeding under Crim. P. 35(c), we do not address it
on this direct appeal. See People v. Thomas, 867 P.2d 880 (Colo. 1994).
Nor do we find, as defendant suggests, that this court was a cause of
delay. Initially, we note that defendant had to elect between pursuing his
direct appeal or his ineffective assistance claim. People v. Dillon, 655 P.2d
841 (Colo. 1982) (jurisdiction may not rest simultaneously in both a district
court and an appellate court).
Here, the record indicates defendant initially requested the remand. The
division to which the appeal had been assigned issued an order requiring
that all post-conviction and appellate counsel submit status reports every
thirty days to keep the court apprised of the Crim. P. 35(c) proceedings.
The court also issued numerous orders to show cause why the remand
should not be vacated and the appeal allowed to proceed, on one
occasion even vacating the limited remand and having counsel appear.
Each time, defendant expressed his desire to continue the remand
pending resolution of the Crim. P. 35(c) proceeding.
We therefore conclude that the record before us fails to establish that
delay in proceeding with defendant’s appeal was caused by state action or
can be attributed to state action. Thus, at least on this direct appeal,
defendant’s due process and equal protection claims must be rejected.
See Rendell-Baker v. Kohn, supra; Sceifers v. Trigg, supra.
(Doc. # 13-2 at 7-9) (Hardin I).
Mr. Hardin is not entitled to relief under § 2254(d)(2) with respect to Claim Three
because the claim is not premised on any factual error. Therefore, Mr. Hardin is entitled
to relief only if the decision of the Colorado Court of Appeals was contrary to or an
unreasonable application of clearly established federal law under § 2254(d)(1).
According to Respondents, relief under § 2254(d)(1) is not available because there is no
clearly established federal law regarding the right to a speedy appeal.
If there is no clearly established federal law, that is the end of the Court’s inquiry
under § 2254(d)(1). House, 527 F.3 at 1018. Clearly established federal law “refers to
13
the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time
of the relevant state-court decision.” Williams, 529 U.S. 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, 527 F.3d at 1016.
Mr. Hardin argues that the clearly established federal law of Barker v. Wingo, 407
U.S. 514 (1972), applies to his claim. Indeed, the Colorado Court of Appeals cited to
the holding of Barker in rejecting Mr. Hardin’s claim. See (Doc. # 13-2 at 7-9).
However, the United States Supreme Court’s holding in Barker established only the
contours of the right to a speedy trial, not the right to a speedy appeal. Barker, 407 U.S.
at 515-516. The Supreme Court did not expressly extend its holding in Barker to apply
to the right of a speedy appeal. Although a majority of circuit courts, including the Tenth
Circuit, have held that an excessive appellate delay may violate the Due Process
Clause in some circumstances, see Harris v. Champion, 15 F.3d 1538 (10th Cir. 1994),
there is no Supreme Court precedent establishing such a constitutional right. The
Supreme Court has explained that “[i]f this Court has not broken sufficient legal ground
to establish an asked-for constitutional principle, the lower federal courts cannot
themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.”
Williams v. Taylor, 529 U.S. 362, 381 (2000). Therefore, although this Court has
serious concerns over the lengthy delay Mr. Hardin experienced during his appellate
and postconviction proceedings, there is no Supreme Court decision holding that
14
excessive delay in a direct appeal is a violation of the Due Process Clause of the United
States Constitution.
The absence of clearly established federal law ends the Court’s inquiry under
§ 2254(d)(1). See House, 527 F.3d at 1018. For these reasons, Mr. Hardin is not
entitled to relief with respect to Claim Three.
Claim Five
In Claim Five, Mr. Hardin argues that the trial court erred in failing to provide
testimony requested by the jury during its deliberations, which violated his constitutional
rights. During deliberations, the jury made a written request for a transcript of the
testimony of Lloyd Rhodes, the robbery victim who had escaped. Although the trial
transcripts and state court record provided to this Court do not provide the specifics of
the jury’s question or the trial court’s answer, the parties do not dispute that: the jury
submitted a request for the transcript of the testimony of Lloyd Rhodes; the trial court
consulted with the parties regarding the jury’s request; the parties did not object to the
trial court’s response to the jury, which was: “No transcript of Lloyd’s testimony has
been prepared from the Reporter’s shorthand notes. Please rely on your individual and
collective memories of the testimony.” See (Doc. # 13-1 at 3, 33).
The Colorado Court of Appeals rejected this claim as follows:
Defendant contends the trial court erred in failing to provide a transcript of
testimony that the jury requested during deliberations. We conclude to the
contrary.
During its deliberations, the jury asked for a copy of the testimony of the
robbery victim who had managed to escape from the house. After
consulting with the prosecutor and defense counsel, the trial court
responded to the jurors’ request by telling them that no transcript had
15
been prepared and that they would have to rely on their individual and
collective memories of the evidence.
It is within the trial court’s discretion whether to read all or part of the
testimony of one or more witnesses in response to a jury’s request during
its deliberations. Settle v. People, 180 Colo. 262, 504 P.2d 680 (1972);
Franklin v. People, 734 P.2d 133 (Colo. App. 1986).
Here, defendant did not object to the trial court’s response to the jury’s
question. We must therefore determine whether the trial court’s exercise
of its discretion amounts to plain error. Walker v. People, 932 P.2d 303
(Colo. 1997).
The trial court explained in its response to the jury that a transcript had not
been prepared. Nothing in the record indicates that defendant was
prejudiced by the response. Indeed, defense counsel may have made the
tactical decision not to have the testimony read to avoid possible prejudice
to defendant.
In these circumstances, we cannot say the trial court’s response to the
jury’s request so undermined the fundamental fairness of defendant’s trial
as to cast substantial doubt on the reliability of the judgment of conviction.
See Walker v. People, supra; Franklin v. People, supra.
(Doc. # 13-2 at 10-11) (Hardin I).
Mr. Hardin is not entitled to relief under § 2254(d)(2) with respect to Claim Five
because the claim is not premised on any factual error. Therefore, Mr. Hardin is entitled
to relief only if the decision of the Colorado Court of Appeals was contrary to or an
unreasonable application of clearly established federal law under § 2254(d)(1). In the
Answer, Respondents argue that it is unaware of any authoritative decision of the
Supreme Court regarding a trial court’s response to a deliberating jury’s request for a
transcript. (Doc. # 30 at 26).
In his Amended Application, Applicant fails to identify any clearly established
federal law that renders the trial court’s decision and response to the jury’s question
16
unconstitutional under these circumstances. In his Traverse, Mr. Hardin argues that the
trial court’s refusal to read-back the requested testimony denied him a fair trial as was
clearly established in Bruton v. United States, 391 U.S. 123, 135 (1968) and Screws v.
United States, 325 U.S. 91, 107 (1965). (Doc. # 33 at 12). In Bruton, the Supreme
Court held that the Sixth Amendment rights of a defendant are violated if the
defendant's non-testifying codefendants make an extrajudicial confession that
implicates the defendant and the Government introduces the confession into evidence
at their joint trial, even if the jury is instructed to consider the evidence only against the
codefendant. Bruton, 391 U.S. at 137. In Screws, the Supreme Court held that the
term “willful[]” in the federal criminal statute regarding civil rights violations, means either
“particular purpose” or “reckless disregard.” See, e.g., United States v. Johnstone, 107
F.3d 200, 208–09 (3d Cir. 1997) (discussing Screws).
Neither of these Supreme Court cases relied upon by Mr. Hardin involve facts
that are at all similar or closely related to this case. Further, the Supreme Court did not
expressly extend the legal rules articulated in Bruton and Screws to the circumstances
in this case.
Additionally, the Court has not found any clearly established federal law
regarding a trial court’s responsibilities to allow a jury access to trial transcripts. See,
e.g., Burns v. Lafler, 328 F. Supp. 2d 711, 723 (E.D. Mich. 2004) (“There is no United
States Supreme Court decision requiring judges to re-read testimony or to provide
transcripts to jurors upon their request.”). Therefore, the Court agrees with
Respondents that there is no clearly established federal law relevant to the specific
17
constitutional argument presented in Claim Five. 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. For these reasons, Mr. Hardin is not entitled to relief with respect to
Claim Five.
Claim Nine
In claim nine, Applicant asserts that he received ineffective assistance of trial
counsel because his trial counsel:
(i) failed to investigate and present evidence favorable to Mr. Hardin,
including:
(A) evidence that would have challenged the star-prosecution
witness, Mr. Rhodes;
(B) evidence that Anna Marie Gutierrez’s view of the street and
alley area were obstructed;
(C) inconsistencies between Mr. Rhodes’ rendition of the events
and other evidence;
(D) failure to impeach police investigation;
(E) failure to elicit evidence of criminal history of Mr. Irving;
(F) failure to interview and present testimony of witnesses favorable
to Mr. Hardin’s defense, including Consuela Gutierrez, David Huff,
Allen Guss, Daniel Billings, and Chico Hurst; and
(ii) failed to properly object, including:
(A) failed to object to indictment which charged all aggravated
robberies in one count;
(B) failed to object to the sentences for felony murder since Mr.
Hardin was acquitted of the underlying felony;
(C) failed to object to Mr. Hardin’s sentences for aggravated
robbery since he was acquitted of aggravated robbery;
18
(D) failed to object to the convictions and sentences on both the
felony murder and the underlying felony;
(E) failed to object to the trial court’s ‘acquittal first’ instruction;
(F) failed to object when the trial court refused to provide Lloyd
Rhodes testimony to the jury upon its request.
See (Doc. # 6 at 34-41).
As discussed in the Order to Dismiss in Part, Mr. Hardin’s postconviction counsel
included the ineffective assistance of trial counsel sub-claims based on failure to
investigate and present evidence (sub-claims (i)(A) through (i)(F)) in the initial-review
collateral proceeding. However, those sub-claims were not presented on postconviction
appeal and, therefore, they are procedurally barred. See (Doc. # 22 at 15-17).
As for the sub-claims involving trial counsel failing to object (sub-claims (ii)(A)
through (ii)(F)), in the Order to Dismiss in Part, the Court stated that “it appears [Mr.
Hardin’s] postconviction counsel failed to assert an ineffective assistance of trial counsel
claim based on numerous failures of counsel to object. Applicant initially included such
a claim in his opening brief on direct appeal and the claim is included as part of claim
nine in this habeas action.” (Doc. # 22 at 22.) As noted, these ineffective assistance
sub-claims based on trial counsel failing to object were included in Mr. Hardin’s opening
brief on direct appeal. (Doc. # 13-1 at 36-39.) However, the Colorado Court of Appeals
failed to address the merits of the sub-claims, concluding that an assertion of ineffective
assistance of counsel “can be better resolved in a post-conviction proceeding.” (Doc.
# 13-2 at 11) (Hardin I). If Mr. Hardin’s postconviction counsel provided ineffective
assistance of counsel by failing to assert these claims in his initial postconviction
19
motion, and the claims are “substantial,” the procedural default will be excused pursuant
to Martinez v. Ryan.
As such, in the Order to Dismiss in Part (Doc. # 22), the Court deferred ruling on
the Respondents’ assertion of the procedural default defense with respect to the
Applicant’s ineffective assistance of counsel claims based on trial counsel failure to
object (sub-claims (ii)(A) through (ii)(F)), pursuant to Martinez v. Ryan. In Martinez, the
Supreme Court held:
Where, under state law, claims of ineffective assistance of trial counsel
must be raised in an initial-review collateral proceeding, a procedural
default will not bar a federal habeas court from hearing a substantial claim
of ineffective assistance at trial if, in the initial-review collateral proceeding,
there was no counsel or counsel in that proceeding was ineffective.
Martinez, 566 U.S. at 17. To constitute cause to excuse a procedural default, Applicant
must show that he received ineffective assistance of postconviction counsel and that the
procedurally defaulted ineffective assistance of trial counsel claim is “substantial”— i.e.,
has “some merit.” Id. at 15.
In his Traverse, Mr. Hardin points out that in the Order to Dismiss in Part, the
Court references that he must show that his ineffective assistance of trial counsel claims
have “substantial merit.” See (Doc. # 33 at 15); see also (Doc. # 22 at 25). Mr. Hardin is
correct that to demonstrate cause for the procedural default under Martinez, the
ineffective assistance of trial counsel claim must just have “some merit;” the claim is not
required to have “substantial merit.” The specific wording of Martinez states that in
order for a claim to be “substantial” claim, the prisoner must
demonstrate that the underlying ineffective-assistance-of-trial-counsel
claim is a substantial one, which is to say that the prisoner must
20
demonstrate that the claim has some merit. Cf. Miller–El v. Cockrell, 537
U.S. 322 [123 S.Ct. 1029, 154 L.Ed.2d 931] (2003) (describing standards
for certificates of appealability to issue).
Martinez, 566 U.S. at 15. Under the standard for issuing a certificate of appealability,
which the Martinez Court incorporated in its definition of substantiality, “a petitioner must
show that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at
336, (internal quotation marks and alterations omitted).
In the Answer, Respondents argue that the procedural default of these claims
cannot be excused pursuant to Martinez v. Ryan because the sub-claims (ii)(A), (B),
(C), and (F) were raised by postconviction counsel during the initial postconviction
proceedings and sub-claims (ii)(D) and (E) are not substantial.
Sub claims (ii)(A), (B), (C), and (F)
Although not previously argued, Respondents now assert that the ineffective
assistance of counsel sub-claims (ii)(A), (B), (C), and (F) were raised and argued by
postconviction counsel during the initial-review postconviction proceedings. (Doc. # 30
at 32-36). To support their argument that the sub-claims were raised and argued by
postconviction counsel during the initial-review postconviction proceedings,
Respondents cite to the “Supplemental To Pro Se Motion for Post-Conviction Review
Filed on September 17, 1999, Pursuant to Crim. P. 35(c) and Request for Witness
Testimony and Hearing on All Claims,” (“Supplement to the 35(c) Motion”) (Doc. # 302), which was provided to this Court for the first time when the Respondents filed their
21
Answer. The Court has reviewed the Supplement to the 35(c) Motion, which included
ineffective assistance of trial counsel claims for failure to object to a duplicitous charge,
failure to object to trial court’s response to the jury’s questions regarding the testimony
of Mr. Rhodes, failure to object to an incomplete Curtis-advisement, and failure to object
to and impeach prejudicial identification of participants by witnesses. (Doc. # 30-2 at
36-42).
The claim in the Supplement to the 35(c) Motion regarding ineffective assistance
of trial counsel for failure to object to a duplicitous charge corresponds to sub-claim
(ii)(A) in the instant habeas application for failure to object to the indictment which
charged all aggravated robberies in one count. Similarly, the claim in the Supplement to
the 35(c) Motion regarding ineffective assistance of trial counsel for failure to object to
the trial court’s response to the jury’s questions regarding the testimony of Mr. Rhodes
corresponds to sub-claim (ii)(F) in the instant habeas application for failure to object
when the trial court refused to provide Lloyd Rhodes testimony to the jury upon its
request. Thus, sub-claims (ii)(A) and (ii)(F) were presented by Mr. Hardin’s
postconviction counsel during the initial postconviction proceedings. Therefore, the
procedural default of these claims cannot be excused by Martinez. Sub-claims (ii)(A)
and (ii)(F) will be dismissed as procedurally barred.
Respondents also argue that sub-claims (ii)(B) and (ii)(C) were raised by
postconviction counsel during the initial review postconviction proceedings. As support
for this argument, Respondents cite to the claim presented in the Supplement to the
35(c) Motion regarding ineffective assistance of trial counsel for failure to object to a
22
duplicitous charge. The claim in the Supplement to the 35(c) Motion was based on
ineffective assistance of trial counsel for failure to object to the charges included in the
indictment, not trial counsel’s failure to object to Mr. Hardin’s sentence. Both sub-claims
(ii)(B) and (ii)(C) are based on trial counsel’s failure to object to Mr. Hardin’s sentence.
Thus, contrary to the argument by Respondents, after review of the Supplement to the
35(c) Motion (Doc. # 30-2), the Court cannot confirm that sub-claims (ii)(B), failure to
object to the sentences for felony murder since Mr. Hardin was acquitted of the
underlying felony, and (ii)(C), failure to object to Mr. Hardin’s sentences for aggravated
robbery since he was acquitted of aggravated robbery, were raised during the initial
postconviction proceedings.
Therefore, pursuant to Martinez, if these ineffective assistance of trial counsel
claims are substantial and Mr. Hardin’s postconviction counsel provided ineffective
assistance by failing to raise them, the procedural default of the claims may be excused.
To establish that counsel was ineffective, Applicant 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 Strickland v.
Washington, 466 U.S. 668, 687 (1984). If Applicant 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. AJudicial scrutiny of counsel=s performance must be highly
deferential.@ Id. at 689. AA court considering a claim of ineffective assistance must
apply a strong presumption that counsel=s representation was within a wide range of
reasonable professional assistance.@ United States v. Rushin, 642 F.3d 1299, 1306
23
(10th Cir. 2011) (citations and internal quotation marks omitted). It is an applicant=s
burden to overcome this presumption by showing that the alleged errors were not sound
strategy under the circumstances, see Strickland, 466 U.S. at 689, and that the errors
were so serious that Acounsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment,@ Rushin, 642 F.3d at 1307 (quoting Richter, 562
U.S. at 104) (emphasis, citation, and internal quotation marks omitted). An applicant
must show counsel failed to act Areasonab[ly] considering all the circumstances.@
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466 U.S. at 688).
Under the prejudice prong, an applicant must establish Aa reasonable probability
that, but for counsel=s unprofessional errors, the result of the proceeding would have
been different.@ Strickland, 466 U.S. at 694. AA reasonable probability is a probability
sufficient to undermine confidence in the outcome.@ Id. In assessing prejudice under
Strickland, the question is whether it is reasonably likely the result would have been
different. Richter, 562 U.S. at 111. AThe likelihood of a different result must be
substantial, not just conceivable.@ Id. at 112 (citing Strickland, 466 U.S. at 693).
Mr. Hardin has failed to demonstrate that his ineffective assistance of trial
counsel claims in sub-claims(ii)(B) and (ii)(C) are substantial and/or that his
postconviction counsel provided ineffective assistance by failing to raise the claims.
Sub-claim (ii)(B) alleges that Mr. Hardin received ineffective assistance of
counsel because his trial counsel failed to object to the sentences for felony murder
since Mr. Hardin was acquitted of the underlying felony. Apparently, Mr. Hardin is
referring to the fact that he was acquitted of the aggravated robbery charge as to Mr.
24
Fisher but sentenced to felony murder as to Mr. Fisher. He was originally sentenced to
felony murder as to Mr. Irving also, but the Colorado Court of Appeals vacated the
conviction and sentence for felony murder as to Mr. Irving because he had also been
convicted and sentenced for the underlying felony of aggravated robbery of Mr. Irving,
(Doc. #13-2 at 3-5) (Hardin I). Therefore, the appellate court vacated the felony murder
conviction as to Mr. Irving and remanded for the trial court to sentence Mr. Hardin for
murder after deliberation as to Mr. Irving. (Id.).
The felony murder sentence as to Mr. Fisher was based on the felony
aggravated robberies of Mr. Irving and Mr. Rhodes. See (id. at 2) (noting that “the
verdicts reflect that the jury found defendant not guilty of robbing one of the two men
who were murdered, but guilty of felony murder because the murder of that victim
occurred during the course of the robbery of the other two.”). Therefore, Mr. Hardin’s
underlying premise that he should not have been sentenced for felony murder of Mr.
Fisher because he was acquitted of felony aggravated robbery of Mr. Fisher lacks merit.
Because the underlying issue lacks merit, Applicant’s claim that he received ineffective
assistance of trial counsel based on his counsel’s failure to object to his sentence for
felony murder fails. See Lafler v. Cooper, 123 S.Ct. 1376, 1386 (2011) (recognizing
that an ineffective assistance of counsel claim fails if the underlying premise on which it
is based lacks merit). As a result, the procedural default of sub-claim (ii)(B) is not
excused pursuant to Martinez and it will be dismissed.
In sub-claim (ii)(C), Mr. Hardin alleges that he received ineffective assistance of
counsel because his trial counsel failed to object to the sentences for aggravated
25
robbery since he was acquitted of aggravated robbery. Apparently, Mr. Hardin is
referring to the fact that he was acquitted of the aggravated robbery charge as to Mr.
Fisher and that he was only charged with one count of aggravated robbery for all three
men in the indictment. Therefore, because he was only charged with one count of
aggravated robbery and he was acquitted of robbing one of the men, Applicant is
apparently arguing that he received ineffective assistance of trial counsel by his counsel
failing to object to his sentence for aggravated robbery. However, this claim lacks merit
because the underlying issue lacks merit. In Hardin I, the Colorado Court of Appeals
held that there was either a constructive amendment to or a variance from the original
count in the indictment and Mr. Hardin failed to demonstrate any prejudice resulting
from the manner in which the aggravated robberies were charged. (ECF No. 13-2 at 6)
(Hardin I). Thus, Mr. Hardin’s trial counsel was not ineffective for failing to object to his
sentence for aggravated robbery. Further, Mr. Hardin’s postconviction counsel did not
provide ineffective assistance by failing to raise an issue of ineffective assistance of trial
counsel based on this sub-claim. Sub-claim (ii)(C) is not substantial under Martinez and
Mr. Hardin’s postconviction counsel did not provide ineffective assistance by failing to
raise the claim, and therefore, it is barred as procedurally defaulted.
Sub-claims (ii)(D) & (ii)(E)
Respondents argue that the procedural default of sub-claims (ii)(D) and (ii)(E)
should not be excused because the claims are not substantial. In sub-claim (ii)(D),
Applicant argues he received ineffective assistance of trial counsel because his counsel
failed to object to the convictions and sentences on both the felony murder and the
26
underlying felony. (Doc. # 13-1 at 38). However, this issue was resolved on direct
appeal. The appellate court agreed that Mr. Hardin could not be sentenced for both
felony murder against Mr. Irving as well as the underlying felony of aggravated robbery
against the same victim. Therefore, the appellate court remanded the case for the trial
court to vacate the felony murder conviction as to Mr. Irving and enter a conviction and
sentence for murder after deliberation instead. (Doc. # 13-2 at 3-5, 11) (Hardin I) (“The
cause is remanded for the trial court to amend the judgment of conviction, sentence,
and mittimus by vacating defendant’s conviction for the felony murder of the victim the
jury found was both robbed and murdered, entering a judgment of conviction for the
murder after deliberation of that victim, and resentencing defendant accordingly”).
Therefore, there was no need for postconviction counsel to raise this issue during the
postconviction proceedings because it had already been resolved. As a result, Mr.
Hardin’s postconviction counsel was not ineffective for failing to raise the claim and subclaim (ii)(D) is barred as procedurally defaulted.
In sub-claim (ii)(E), Applicant argues that he received ineffective assistance of
trial counsel because his counsel failed to object to the trial court’s “acquittal first”
instruction. However, this underlying issue was also resolved on direct appeal. The
Colorado Court of Appeals held that the jury instruction, which was requested by the
Defendant, was approved by established precedent in People v. Padilla, 638 P.2d 15
(Colo. 1981). (Doc. # 13-2 at 9) (Hardin I). Thus, Mr. Hardin’s trial counsel was not
ineffective for failing to object to an instruction that was consistent with controlling state
precedent. Further, Mr. Hardin’s postconviction counsel did not provide ineffective
27
assistance by failing to raise an issue of ineffective assistance of trial counsel based on
this sub-claim. Sub-claim (ii)(E) is not substantial under Martinez and Mr. Hardin’s
postconviction counsel did not provide ineffective assistance by failing to raise the
claim, and, therefore, the claim is barred as procedurally defaulted.
V.
CONCLUSION
Based on the above findings, it is
ORDERED that the Amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. ' 2254, Doc. # 6, 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 leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from this
Order is not taken in good faith, and, therefore, in forma pauperis status is denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file
a motion to proceed in forma pauperis in the United States Court of Appeals for the
Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
DATED: May 7, 2019
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge
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