Opinion
Civil Action No. 19-cv-02112-PAB
06-24-2020
PONCIANO VERDUZCO-CERVANTES, Applicant, v. DEAN WILLIAMS, Executive Director, C.D.O.C., and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS
Applicant Ponciano Verduzco-Cervantes, a state prisoner, has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No. 1, challenging the validity of his convictions in the District Court for the City and County of Denver, Colorado, case number 07CR6038. After reviewing the Application, the Answer, and the state court record, the Court concludes Applicant is not entitled to relief.
I. BACKGROUND
Applicant was convicted by a jury of one count of first degree kidnapping, two counts of second degree kidnapping, and one count of first degree felony murder. The Colorado Court of Appeals' decision on direct appeal provides the following relevant background:
According to the prosecution's evidence, defendant and the victim became embroiled in a dispute. A witness testified at trial that defendant was in "some sort of trouble" with an unidentified man because of the
victim's actions.Docket No. 11-4 at pp. 3-4. Applicant was sentenced to a term of life imprisonment without the possibility of parole. Docket No. 1 at p. 2. The Colorado Court of Appeals affirmed the judgment of conviction in People v. Ponciano Verduzco-Cervantes, No. 09CA1367 (Colo. App. July 18, 2013). Docket No. 11-4. Applicant's petition for certiorari review was denied by the Colorado Supreme Court. Docket No. 11-5.
On the night of the killing, defendant met the victim, two friends of the victim, and a business associate of defendant ("shooter") at a house. Once there, defendant said to the victim, "You know what you did wrong," and the group went to the garage to "talk," at the shooter's request. A witness testified that the shooter displayed a gun when he made the request. After talking for some time in the garage, the shooter fatally shot the victim. Defendant and the shooter left the scene together and were later arrested together in another state.
Defendant was charged as a complicitor with three counts of kidnapping: one for the first degree kidnapping of the victim and two counts of second degree kidnapping of the victim's two friends. Defendant also was charged as a complicitor with first degree murder - felony murder for the victim's killing. The jury convicted defendant of all charges.
Applicant then filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule 35(c), which was denied by the trial court following an evidentiary hearing. The Colorado Court of Appeals affirmed in No. 17CA2123 (Colo. App. April 18, 2019). Docket No. 11-8. The Colorado Supreme Court denied Applicant's petition for certiorari review. Docket No. 11-9.
Applicant filed his federal Application on July 22, 2019. He asserts five claims for relief:
(1) Applicant's Sixth and Fourteenth Amendment rights were violated
when the trial court admitted statements of the victim through the testimony of the victim's girlfriend, which constituted inadmissible hearsay.See Docket No. 1 at pp. 4-7.
(2) Applicant's Fourteenth Amendment right to a fair trial was violated when the trial court gave a supplemental instruction to the jury on the terms "seized and carried," which lessened the prosecution's burden of proof on the charge of second degree kidnapping.
(3) The evidence was insufficient to support the conviction of first degree kidnapping, which was used as a predicate offense for the felony murder conviction, in violation of the Fourteenth Amendment.
(4) Applicant's Fourteenth Amendment right was violated when the prosecutor engaged in misconduct by misstating the law as to one of the elements of first degree kidnapping.
(5) Applicant's attorneys were ineffective in plea negotiations and at trial, in violation of the Sixth Amendment.
Respondents concede that the Application is timely under 28 U.S.C. § 2244(d) and that Applicant exhausted state court remedies for his claims. Docket No. 11. The Court addresses the merits of the claims below.
II. STANDARDS OF REVIEW
The Court must construe the Application and other papers filed by Applicant liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state 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; or28 U.S.C. § 2254(d). The Applicant bears the burden of proof under § 2254(d). See Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
(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.
The threshold question the Court must answer under § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time the state court adjudicated the claim on its merits. Greene v. Fisher, 565 U.S. 34, 38 (2011). 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." Williams v. Taylor, 529 U.S. 362, 412 (2000). Furthermore,
clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law if: (a) "the state court applies a rule that contradicts the governing law set
forth in Supreme Court cases"; or (b) "the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent." Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405, 120 S. Ct. 1495). "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405, 120 S. Ct. 1495 (citation omitted).House, 527 F.3d at 1018.
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, 120 S. Ct. 1495.
The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is 'objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation omitted, brackets in original). In conducting this analysis, the Court "must determine what arguments or theories supported or . . . could have supported[] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102.
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 Harrington, 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.Harrington, 562 U.S. at 103.
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, 563 U.S. at 181.
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. The court "must defer to the state court's factual determinations so long as 'reasonable minds reviewing the record might disagree about the finding in question.'" Smith v. Duckworth, 824 F.3d 1233, 1241 (10th Cir. 2016) (quoting Brumfield v. Cain, 576 U.S. 305, 135 S.Ct. 2269, 2277 (2015)). Nevertheless, "if the petitioner can show that 'the state courts plainly misapprehend[ed] or misstate[d] the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable.'" Id. (alterations in original) (internal quotation marks and citation omitted).
Pursuant to § 2254(e)(1), the Court presumes the state court's factual determinations are correct and the applicant bears the burden of rebutting the presumption by clear and convincing evidence. The presumption of correctness applies to factual findings of the trial court as well as state appellate courts. See Al-Yousif v. Trani, 779 F.3d 1173, 1181 (10th Cir. 2015). The presumption of correctness also applies to implicit factual findings. See Ellis v. Raemisch, 872 F.3d 1064, 1071 n.2 (10th Cir. 2017).
If the requisite showing under § 2254(d) is made, the Court must consider the merits of the constitutional claim de novo. See Harmon v. Sharp, 936 F.3d 1044, 1056-57 (10th Cir. 2019).
The deferential standards of § 2254(d) do not apply to a claim that was not adjudicated on the merits in state court; instead, the federal habeas court reviews the claim de novo. See id. at 1057.
III. MERITS OF APPLICANT'S CLAIMS
A. Claim 1
Applicant first claims that his Sixth and Fourteenth Amendment rights were violated when the trial court admitted statements of the victim through the testimony of the victim's girlfriend. Docket No. 1 at p. 4. Applicant maintains that he was denied "a fair trial" because the girlfriend's testimony included inadmissible hearsay. Id.
1. Fourteenth Amendment due process claim
a. State court proceeding
On direct appeal, the Colorado Court of Appeals rejected Applicant's claim on the following grounds:
At trial, the girlfriend testified that the day before the victim's death, she had expressed concern to the victim about defendant visiting their house, and had asked the victim to "fix" the situation. The witness then testified that the victim had responded by saying, "I need a gun. He's going to kill me."
. . .
Because the parties do not dispute that the contested testimony was hearsay, we treat it as such for purposes of review. See People v. Rogers, 68 P.3d 486, 493 (Colo. App. 2002) (reviewing witness testimony "[a]ssuming, arguendo, that all th[e] evidence was hearsay").
The Attorney General argues that the statements fall within the "state of mind" exception, CRE 803(3). "[A] proponent may use the declarant's statements as circumstantial proof of [his] state[] of mind . . . . Sometimes the mere fact a person makes a certain statement gives [the jury] insight into that person's frame of mind." Edward J. Imwinkelried, Evidentiary Foundations, § 10.02[3][a], at 407 (8th ed. 2012). Here, the statement suggests that the victim feared defendant would harm him. Statements demonstrating a declarant's present fear of another "fall squarely within the state of mind hearsay exception under CRE 803 because they refer not to past events or conditions, but to the victim's then existing state of mind." Rogers, 68 P.3d at 493.
Additionally, the victim's fear is relevant because lack of consent is an element of the lesser-included offense of false imprisonment, on which the jury was instructed and defendant does not challenge. According to the jury instruction defining consent, which defendant also does not challenge, "[s]ubmission under the influence of fear shall not be sufficient to constitute consent." And testimony that the victim feared defendant made it more likely that the victim acted "under the influence of fear" during the incident. See CRE 401.
Further, the statement was not so unduly prejudicial that admitting it was an abuse of discretion. Compared to the undisputed testimony that the victim was shot, the statement did not "introduce[ ] into the trial considerations extraneous to the merits, such as bias, sympathy, anger or shock." People v. Greenlee, 200 P.3d 363, 367 (Colo. 2009). Therefore, maximizing the statement's probative value and minimizing its prejudicial effect, see Ray, 109 P.3d at 1001, we discern no abuse of discretion.Docket No. 11-4 at pp. 5-9.
. . .
Therefore, we conclude that the trial court did not err by permitting the witnesses' statement at trial. . . .
b. AEDPA analysis
Applicant's contention that the admission of the hearsay statements was improper under Colorado law is not reviewable by this Court. Federal habeas review does not lie to correct errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). See also Spears v. Mullin, 343 F.3d 1215, 1225 (10th Cir. 2003) ("Federal habeas review is not available to correct state law evidentiary errors; rather it is limited to violations of constitutional rights."). The constitutional inquiry is whether the admission of the challenged evidence denied Applicant a fair trial.
In Lott v. Trammell, 705 F.3d 1167 (10th Cir. 2013), the Tenth Circuit recognized that "the Supreme Court outlined a general due process standard that applies to criminal trials" in Lisenba v. California, 314 U.S. 219 (1941):
As applied to a criminal trial, denial of due process is the failure to observe that fundamental fairness essential to the very concept of justice. In order to declare a denial of it we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.Lott, 705 F.3d at 1190 (quoting Lisenba, 314 U.S. at 236). See also Estelle, 502 U.S at 75 (holding that "neither the introduction of the challenged evidence, nor the jury instruction as to its use, "'so infused the trial with unfairness as to deny due process of law,'" quoting Lisenba, 314 U.S. at 228).
"Inquiry into fundamental fairness requires examination of the entire proceedings, including the strength of the evidence against the petitioner. . . . " Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir. 2002) (citing Donnelly v. DeChristophoro, 416 U.S. 637, 643 (1974)). "[B]ecause a fundamental-fairness analysis is not subject to clearly definable legal elements, when engaged in such an endeavor a federal court must tread gingerly and exercise considerable self-restraint." Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002).
Applicant does not challenge the Colorado Court of Appeals' factual findings, which are presumed correct and are supported by the state court record. Moreover, Applicant does not argue that the Colorado Court of Appeals applied a rule that contradicts governing Supreme Court law, or that the facts relevant to his claim are materially indistinguishable from a Supreme Court decision that arrived at a different result from the state appellate court. Therefore, the Court is left to determine whether the Colorado Court of Appeals' decision was an unreasonable application of federal due process standards.
At trial, prosecution witnesses testified that, on the day of the shooting, Applicant instructed the co-defendant to "go and get [the victim]" and "bring [him] back [to the house]"; after the co-defendant met the victim, the victim and a friend drove to the house voluntarily, and, once inside the kitchen, Applicant told the victim, "you know you did wrong" and the victim agreed; Applicant and the co-defendant then walked the victim and his friend outside the kitchen, across the patio, and to the inside of the garage, while co-defendant held a gun; the victim and his friend were ordered to sit with their backs against the inside of the garage bay door and not move; the co-defendant had a gun in his hand the entire time the four men were in the garage; Applicant told the victim that the victim's conduct had gotten him in trouble with an unidentified man and the victim needed to apologize; the co-defendant became angry and put the gun against the victim's neck several times; and, while waiting for the man to come to the garage to receive the victim's apology, the co-defendant shot the victim, after which Applicant and co-defendant fled the scene by car and were subsequently arrested together in New Mexico.
See State Court Record ("R."), 5/5/09 Trial Tr., Ashley Martinez testimony, at pp. 425-27; Arnoldo Castro-Morena testimony, at pp. 530, 532-35; 5/6/09 Trial Tr., Fernando Hernandez Vasquez testimony, at pp. 671-709, 738.
In the context of the entire trial, the admission of testimony that the victim feared Applicant was not so unduly prejudicial as to render Applicant's trial fundamentally unfair. The Court thus finds that the Colorado Court of Appeals' decision was not objectively unreasonable under the Lisenba due process standard.
Applicant is not entitled to relief with respect to the alleged Fourteenth Amendment violation asserted as part of claim one.
2. Sixth Amendment Confrontation Clause claim
Applicant asserts in claim one, without further elaboration, that the trial court's admission of the victim's statements through the testimony of the victim's girlfriend violated the Sixth Amendment.
a. State court proceeding
On direct appeal, Applicant made a conclusory assertion that the trial court's admission of the hearsay statements "violated [Applicant's] state and federal constitutional rights to confrontation," citing the Sixth Amendment to the United States Constitution. Docket No. 11-2 at p. 21. Applicant argued that he had a "fundamental constitutional right to confront and cross-examine adverse witnesses against [him] at trial," citing Delaware v. Van Arsdall, 475 U.S. 673 (1986). Id. The Colorado Court of Appeals determined that the Sixth Amendment claim was "insufficiently presented for review," and that Applicant failed to articulate how the admission of the statement violated the principles of Crawford v. Washington, 541 U.S. 36 (2004). Docket No. 11-4 at pp. 8-9.
b. AEDPA analysis
In Crawford, the Supreme Court explained the "primary object" of the Confrontation Clause is "testimonial hearsay." 541 U.S. at 53. "Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Id. at 68. "Testimonial" statements typically involve "a solemn declaration or affirmation made for the purpose of . . . proving some fact," id. at 51, such as "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" and "statements taken by police officers in the course of interrogations." Id. at 52 (citations omitted). See also Davis v. Washington, 547 U.S. 813, 830 n.5 (2006) (recognizing that "formality is indeed essential to testimonial utterance.").
At trial, the victim's girlfriend testified that the day before the shooting, a housemate told her that Applicant had stopped by the house to speak to the victim, but the victim was not present. The girlfriend was concerned and told the victim "to fix it." The victim responded, "I need a gun. He's going to kill me." The victim's statement to his girlfriend was in response to her expression of concern for him and was for the purpose of expressing to her his fear and need for protection. The statement was not "testimonial." See, e.g., Stachmus v. Rudek, No. 14-7092, 613 F. App'x 691, 694 (10th Cir. May 27, 2015) (unpublished) (victim's brother's testimony that the victim told him that if her husband "was having an affair, cheating on her, or sending flowers or even talking to another woman, that she would leave him" was not a testimonial statement); Garrison v. Ortiz, No. 08-1216, 296 F. App'x 724, 726 (10th Cir. Oct. 21, 2008) (unpublished) (concluding that, because "the out-of-court statements were made informally to an acquaintance and did not seek to prove facts relevant to a criminal investigation, they cannot be deemed testimonial."). See also Crawford, 541 U.S. at 52 ("An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.").
R., 5/5/09 Trial Tr., Mindy Osbahr testimony, at p. 587.
Id. at p. 588.
Id.
Because the victim's statement to his girlfriend that he was afraid of Applicant was not subject to exclusion under the Confrontation Clause, the Colorado Court of Appeals did not unreasonably apply Crawford in summarily rejecting the claim.
Applicant is not entitled to relief with respect to the alleged Sixth Amendment violation asserted in claim one.
B. Claim Two
For his second claim, Applicant asserts that his Fourteenth Amendment right to a fair trial was violated when the trial court gave a supplemental instruction to the jury on the term "seized and carried," which lessened the prosecution's burden of proof on the charge of second degree kidnapping. Docket No. 1 at p. 5.
1. State court proceeding
On direct appeal, the Colorado Court of Appeals reached the following resolution of Applicant's claim:
The crime of second degree kidnapping requires the victim to be "seize[d] and carrie[d] . . . from one place to another . . . ." § 18-3-302(1). Together, these are referred to as the asportation element of kidnapping. People v. Owens, 97 P.3d 227, 237 (Colo. App. 2004).
When asportation is disputed at trial, a court reviewing for sufficiency of the evidence may consider whether "defendant's movement of the victim substantially increased the risk of harm to the victim." Id. However, the jury need not be instructed on this concept. Id. "It is, instead, only a factual circumstance reviewing courts consider in some cases to determine whether there is sufficient evidence to prove that the defendant moved the victim from one place to another." Id. (internal quotations and citations omitted).
. . .
The prosecution tendered a supplemental jury instruction defining "seized and carried" as having "moved or caused to move any distance." The trial court gave this instruction over defendant's objection. During closing arguments, the prosecution referred to this definition by reminding the jury that "kidnapping can be any distance, moved or caused to be moved any distance. They brought him from the kitchen out to the yard. They brought him from the yard into the foyer of the garage. They brought him from the foyer of the garage into the garage itself."
. . .
Defendant does not argue that the definition of "seized and carried" in the supplemental instruction was legally incorrect. Nevertheless, defendant argues error on two grounds: because the instruction did not reference any "increase in harm" caused by the victim being seized and carried; and because the definition may have convinced the jury that "any movement, in and of itself, sufficed for conviction." While the record is unclear whether he presented both arguments to the trial court, out of an abundance of caution, we address both contentions.
First, defendant concedes that the jury need not be instructed on the "increase in harm" principle, as it is a test by which appellate courts review sufficiency of the evidence challenges. See Owens, 97 P.3d at 237. Yet, defendant does not argue that the evidence was insufficient to support the jury's verdict on this basis.
Second, defendant argues that the "definitional instruction indicated to the jury that any movement, however short, would in and of itself support a conviction for second degree kidnapping." However, defendant does not say how the language of the instruction misled the jury to believe that finding asportation alone was sufficient for conviction. To the contrary, the elemental instruction for second degree kidnapping allowed the jury to find defendant guilty only if "the prosecution has proven each of the elements beyond a reasonable doubt," while requiring acquittal if "the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt." And, "[w]e presume that a jury follows these instructions given by the trial court." Medina v. People, 114 P.3d 845, 856 (Colo. 2005).
The prosecutor's closing argument does not suggest a different conclusion. As relevant here, the prosecutor told the jury that "kidnapping can be any distance, moved or caused to be moved any
distance." This statement does not "exacerbate[ ]" errors in the trial court's instructions, as defendant argues, because we have discerned no error. And defendant does not cite, nor can we find, any statement by the prosecution in closing argument informing the jury that asportation alone is sufficient for conviction.Docket No. 11-4 at pp. 20-24.
Defendant's reliance on People v. Owens is misplaced. In Owens, 97 P.3d at 237, the trial court erred by orally instructing the jury using one definition of "seized and carried" before telling the jury that "the law had changed" and giving another definition of "seized and carried" in a written instruction. Although the final definition was correct, the manner in which the instruction was given "explicitly injected" extraneous principles into the case. Id. Here, in contrast, defendant does not argue that the manner in which the instructions were read to the jury was improper.
Thus, we discern no error in the trial court's instructions.
2. AEDPA analysis
The Fourteenth Amendment Due Process Clause requires the prosecution to prove every element of a charged offense beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). To demonstrate a constitutional error from a jury instruction in a state criminal trial, a habeas petitioner must show (1) an "ambiguity, inconsistency, or deficiency" in the instruction, and, (2) a "reasonable likelihood" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt. Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (internal quotation marks and citations omitted). See also Victor v. Nebraska, 511 U.S. 1, 6 (1994) (explaining that the constitutional inquiry is "whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard."); Cupp v. Naughten, 414 U.S. 141, 147 (1973) (habeas petitioner must show that the error in a jury instruction violated the petitioner's Fourteenth Amendment right to due process). It is not enough that there is some "slight possibility" that the jury misapplied the instruction. Weeks v. Angelone, 528 U.S. 225, 236 (2000). An instruction is considered in the context of the trial as a whole. Brown v. Payton, 544 U.S. 133, 144 (2005).
Applicant does not argue that the Colorado Court of Appeals applied a rule that contradicts governing Supreme Court law, or that the facts relevant to his claim are materially indistinguishable from a Supreme Court decision that arrived at a different result from the Colorado Court of Appeals. Further, he does not take issue with any state court factual findings. Therefore, the Court's review of claim two is limited to determining whether the state appellate court's decision was objectively reasonable under applicable Supreme Court standards.
The trial court gave the jurors the following instruction on second degree kidnapping ("elements instruction"): (1) that the Defendant; (2) in the City and County of Denver, State of Colorado, on or about October 5, 2007; (3) knowingly, (4) seized and carried Fernando Hernandez-Vasquez from one place to another, (5) without his consent; and (6) without lawful justification. See also § 18-3-302(1), C.R.S. (2007) ("Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.").
R., Court File, at p. 164, Instruction No. 19.
Applicant does not contend that the elements instruction was incorrect under Colorado law. Instead, he argues that the jurors were misled by the supplemental instruction defining the element of "seized and carried."
The supplemental instruction was a definitional instruction that defined the terms "bodily injury," "consent," "deadly weapon," "seized and carried," and "serious bodily injury." The supplemental instruction defined the term "seized and carried" as "moved or caused to be moved any distance," which was a correct statement of Colorado law. See Owens, 97 P.3d at 237. The elements instruction for second degree kidnapping included two elements in addition to the asportation element and required the jury to find that each of the elements had been proven by the prosecution beyond a reasonable doubt. There is nothing in the state court record to suggest that the jury ignored the elements instruction and instead found Applicant guilty based solely on the definition of "seized and carried" contained in the supplemental instruction. As noted by the Colorado Court of Appeals, the Court presumes that the jurors followed their instructions. See Richardson v. Marsh, 481 U.S. 200, 211 (1987).
R. Court File, at p. 171, Instruction No. 24.
Id.
Applicant fails to demonstrate any error in the instruction on second degree kidnapping or that the supplemental instruction defining the term "seized and carried" relieved the prosecution of its burden of proof or otherwise violated his right to due process. Consequently, the Court finds that the Colorado Court of Appeals' decision was an objectively reasonable application of controlling federal due process standards.
Applicant is not entitled to relief with respect to claim two.
C. Claim Three
In claim three, Applicant asserts that the evidence was insufficient to convict him of first degree kidnapping, and felony murder predicated on first degree kidnapping, in violation of due process, because the victim was not forced to make a concession or give up something of value in order to secure his release. Docket No. 1 at p. 5.
1. State court proceeding
On direct appeal, the Colorado Court of Appeals reached the following resolution of Applicant's claim:
The crime of first degree kidnapping requires the defendant to act with the "intent . . . to force the victim or any other person to make any concession . . . ." § 18-3-301(1), C.R.S. 2012. The statutory definition of "concession" is not limited to something of objective value, but rather "recognizes a more expansive scope . . . [,] cover[ing] situations where kidnappers act with the intent of obtaining a benefit that is subjectively valuable to them." People v. San Emerterio, 839 P.2d 1161, 1165 (Colo. 1992).
. . .
Here, a witness testified at trial that defendant was angry with the victim for "[getting] him into some sort of trouble" with an unidentified man inside the house. The witness then agreed with the prosecutor that defendant had told the victim "to wait for the man [who] was inside the house to come to the garage" in order to "ask him for an apology."
From this evidence, a jury could infer that defendant wanted to make the victim apologize to the man believed to be in the house. This apology, in turn, would end the conflict between the man and defendant that the victim had supposedly caused. While repairing a relationship with an associate may lack objective value, such relationships have subjective value, which satisfied the statutory definition of "concession." Id. Therefore, we may not disturb the jury's finding or the court's
judgment on this basis.Docket No. 11-4 at pp. 19-20.
2. AEDPA analysis
A constitutional challenge to the sufficiency of the evidence is governed by Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction as a matter of due process if, "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Coleman v. Johnson, 566 U.S. 650, 654 (2012) (quoting Jackson, 443 U.S. at 319). "[F]ederal courts must look to state law for 'the substantive elements of the criminal offense,' but the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." Coleman, 566 U.S. at 655 (quoting Jackson, 443 U.S. at 324 n. 16). A state court's interpretation of state law "binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam).
Review under Jackson is "sharply limited, and a court faced with a record of historical facts that supports conflicting inferences must presume - even if it does not affirmatively appear in the record that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Turrentine v. Mullin, 390 F.3d 1181, 1197 (10th Cir. 2004) (quotations and alterations omitted).
"Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." Coleman, 566 U.S. at 651. First, the state court defers to the jury's resolution of any disputed facts. And second, the federal court defers to the state court's resolution of the Jackson claim, which must be upheld provided simply that it was not "objectively unreasonable." Id.
Applicant does not dispute the Colorado Court of Appeals' factual findings, which are supported by the state court record. Further, because the state appellate court applied a state law standard similar to the Jackson standard in resolving Applicant's claim, see Docket No. 11-4 at p. 18, the Colorado Court of Appeals' decision was not contrary to Supreme Court law. The Court therefore determines whether the Colorado Court of Appeals' determination constituted an unreasonable application of Jackson.
Under Colorado law, the "the term `concession' as used in section 18-3-301(1) is broad enough to include a promise that has sufficient subjective value to a kidnapper that he would hinge release of a victim upon that promise." San Emerterio, 839 P.2d at 1167.
At trial, the victim's friend, who was present at the shooting, testified that Applicant was angry with the victim because the victim had obtained a man's phone number from Applicant's telephone and called him, without Applicant's permission, which had gotten Applicant "in some sort of trouble." The friend further testified that Applicant told the victim he had to stay in the garage, wait for the man to come, and then apologize. The jury could reasonably infer from this evidence that Applicant intended to force the victim to apologize to the man in order to obtain a benefit subjectively valuable to Applicant—i.e, the resolution of his own problems with the man that were caused by the victim.
R., 5/6/09 Trial Tr., Hernandez-Vasquez testimony, at pp. 687-89.
Id. at p. 690.
Applicant argues that the evidence was insufficient to support his first degree kidnapping conviction because the victim "never tendered any concession or gave up anything of value." Docket No. 1 at 5. However, Colorado law does not require that the concession was actually made by the victim, or that the victim believed his release was contingent upon giving the concession. See § 18-3-301(1), C.R.S. ("Any person who [forcibly seizes and carries any person from one place to another] with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping"); see also San Emerterio, 839 P.3d at 1167 ("First-degree kidnapping requires only an intent to force a concession. It does not require that the concession be made. . . .").
The Court finds that fair-minded jurists could disagree as to whether the Colorado Court of Appeals' determination that the evidence at Applicant's trial met the "concession" element of first-degree kidnapping comported with the Jackson standard.
Applicant is not entitled to relief with respect to claim three.
D. Claim Four
For his fourth claim, Applicant contends that the prosecutor engaged in misconduct during voir dire and in closing argument by misstating the "concession" element of first degree kidnapping. Docket No. 1 at pp. 5-6.
1. State court proceeding
On direct appeal, the Colorado Court of Appeals reviewed Applicant's claim for plain error, see Docket No. 11-4 at 24, and rejected it on the following grounds:
During voir dire, the prosecutor made statements equating a concession to a "gentleman's bet":
[Prosecutor]: Does [a concession] mean only a ransom, only money in your mind?
[Prospective Juror]: For this particular case, I have no idea.
[Prosecutor]: In general?
[Prospective Juror]: In general, kidnapping, no.
[Prosecutor]: A concession in kidnapping?
[Prospective Juror]: Am I hearing it right, c-o-n-c-e-s-s-i-o-n?
[Prosecutor]: Yes.
[Prospective Juror]: Okay. And do - I guess I'm not understanding your question, I'm sorry.
[Prosecutor]: Okay. Have you ever had a, done a gentleman's bet?
[Prospective Juror]: A gentleman's bet?
[Prosecutor]: Yes.
[Prospective Juror]: Yeah, sometimes.
[Prosecutor]: And what's a gentleman's bet to you?
[Prospective Juror]: Well, I will give you something for something.
[Prosecutor]: Okay. Like I often will make - we'll say
[another prosecutor] and I talk about football. And I say, I bet Broncos are going to go to the Super Bowl this coming season. And she goes, Oh, really, you think they're going to with McDaniels and the quarterback situation and all that, you think they're going to still go to the Super Bowl? Yeah.
Do you know [sic] want to bet on it, she says to me? And say, Well, sure, I don't really have any cash to give you and I won't have any cash to give you if they should not go to the Super Bowl, but you know you can have bragging rights. And we shake on it and we kind of leave it at that, a gentleman's bet. Do you think that's a concession to her having her walk around the office once the Broncos don't go to the Super Bowl? They don't even go to the playoffs. They don't win a game this coming season and she gets to walk around the office and gloat about the fact that I said they were going to go to the Super Bowl?
[Prospective Juror]: That you gave her bragging rights?
[Prosecutor]: Right.
[Prospective Juror]: Okay. You gave her something for something, that's okay.
The prosecution then referred to the required concession in the context of "the gentleman's bet, as we discussed in jury selection . . ." during closing arguments.
. . .
Here, while perhaps inartful, the prosecutor's statements during voir dire are not plain error. The prosecutor began by asking if concessions "mean only a ransom, only money in [the prospective juror's] mind." When a prospective juror expressed confusion about the question, the prosecutor then attempted to clarify by analogizing non-monetary concessions to a "gentleman's bet." And when asked if the "bragging rights" afforded by a "gentleman's bet" constituted a concession, the juror said they did because it was an exchange of "something for something." Thus, the dialogue, taken as a whole, was intended to illustrate the difference between concessions of objective and subjective value which was relevant to the prosecution's case. Cf. [People v.] Allee, 77 P.3d [831,] 837 [(Colo. App. 2003)] (recognizing that plain error reversal based on prosecutor statements was appropriate only
in limited circumstances, including when the prosecution "attempt[ed] to inject irrelevant issues into the case.").Docket No. 11-4 at pp. 25-29.
Further, the challenged voir dire constitutes fewer than three pages of the voir dire questioning, which totaled over 175 pages. And Defendant challenges only one brief statement in closing arguments, which refers back to the concept of a "gentleman's bet," without further embellishment or emotional appeal. Cf. People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2020) ("[E]mbellishments are improper if they induce the jury to determine guilt on the basis of passion or prejudice . . . . ").
Also, to the extent that defendant argues that the allusion to a "gentleman's bet" in the context of sports improperly trivialized the concession concept, ample trial testimony showed the serious nature of the underlying dispute. And by not objecting to the statements when made, defense counsel's own conduct suggests that error, if any, is not plain. . . .
For these reasons, prosecutorial misconduct, if any, was not so "flagrantly or glaringly or tremendously improper" as to "undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction." [People v.] Tillery, 231 P.3d [36,] 44 [(Colo. App. 2009)]. Thus, we discern no plain error.
2. AEDPA analysis
The Tenth Circuit has outlined the following Supreme Court standards applicable to prosecutorial misconduct claims:
In a habeas corpus action, claims of prosecutorial misconduct are reviewed only for a violation of due process. See Darden v. Wainwright, 477 U.S. 168, 181 (1986). "[N]ot every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a failure to observe that fundamental fairness essential to the very concept of justice." Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (citations and quotations omitted). In order to be entitled to relief, [petitioner] must establish that the prosecutor's conduct or remarks "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 643. This determination may be made only after considering all of
the surrounding circumstances, including the strength of the State's case. See Darden, 477 U.S. at 181-82.Malicoat v. Mullin, 426 F.3d 1241, 1255 (10th Cir. 2005). See also Parker v. Matthews, 567 U.S. 37, 45 (2012) (per curiam) (recognizing that the due process standards articulated in Darden and Donnelly are the clearly established federal law relevant to a constitutional claim challenging a prosecutor's allegedly improper comments). "[T]he Darden standard is a very general one, leaving courts 'more leeway. . . in reaching outcomes in case-by-case determinations.'" Parker, 567 U.S. at 48 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Colorado's plain error standard is rooted in due process. People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (plain error occurs when the error so undermines the fundamental fairness of the trial that it casts serious doubt on the reliability of the judgment of conviction). There is no practical distinction between the state court's plain error standard of review and the federal standard for a prosecutorial misconduct claim—whether the alleged misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process,'" Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). Thus, the rule applied by the Colorado Court of Appeals did not contradict the governing Supreme Court law, and the Court must determine whether that application was reasonable.
Although the prosecutor's comments in voir dire somewhat trivialized the concession element of first degree kidnapping, the evidence at trial demonstrated that the "concession" at issue was premised on conduct much more serious than a casual gentleman's bet. Further, as recognized by the Colorado Court of Appeals, the prosecutor's limited reference to a gentleman's bet during a lengthy voir dire, and the passing reference again in closing argument, minimized any prejudicial effect. Evaluating the challenged prosecutorial comments in the context of the entire trial, the Court finds that the Colorado Court of Appeals' resolution of Applicant's claim was not so lacking in justification under the standards of Darden and Donnelly that there was an error well understood and comprehended beyond all possibility for fair-minded disagreement. The Court further finds, based on review of the state court record, that the state appellate court's resolution of the claim was based on a reasonable determination of the facts.
Applicant is not entitled to relief with respect to claim four.
E. Claim Five
In claim five, Applicant asserts that his attorneys were constitutionally ineffective in: (a) failing to adequately advise Applicant, who does not speak English and was not provided with an adequate translator, about the legal concepts of felony murder and complicity, so that Applicant could make an informed decision as to whether to accept a plea agreement; and, (b) in failing to subject the prosecution's case to meaningful adversarial testing. Docket No. 1 at pp. 6-7.
1. Failure to advise Applicant adequately in plea negotiations
a. State court proceedings
On state post-conviction review, the Colorado Court of Appeals made the following factual findings in connection with the ineffective assistance claim:
A public defender began representing defendant after he was charged with, among other things, first degree kidnapping and felony murder. The parties agreed that the evidence didn't show that defendant shot and killed the victim or that the shooting was an intentional act by defendant's associate. But the public defender explained felony murder and complicitor liability to defendant, and explained that ample evidence existed to convict defendant at trial. The public defender also (1) chose not to waive the preliminary hearing, to help defendant understand the sufficiency of the evidence against him; (2) obtained assurances from the prosecutor that defendant's demanding a preliminary hearing wouldn't foreclose continuing plea negotiations; and (3) talked with defendant during several meetings to help him understand the legal concepts relevant to his case.
The public defender negotiated a plea offer calling for a guilty plea to kidnapping and manslaughter charges, a sentence between ten and thirty-eight years, and concurrent sentencing with defendant's other pending cases. He also advised defendant to accept the offer and continued to emphasize the offer's benefits and a trial's risks. But defendant met with private counsel, who told him—without reviewing any discovery—that he had a "50/50" chance of prevailing at trial. Defendant retained private counsel roughly two months before the plea offer expired, and the public defender withdrew as defendant's counsel.
At a hearing with private counsel, defendant rejected the plea offer and said he understood that the prosecution was unlikely to make any further offers. Defendant went to trial and a jury convicted him of one count of first degree kidnapping, two counts of second degree kidnapping, and one count of first degree felony murder. The trial court sentenced defendant to life in prison without the possibility of parole, and the judgment was affirmed on direct appeal. . . .
Defendant sought postconviction relief under Crim. P. 35(c). The district court appointed counsel and held a hearing at which defendant limited his claims to whether his public defender and, after, his private counsel, provided ineffective assistance by inadequately communicating with him and advising him about the plea offer.
The public defender, private counsel, and defendant testified at the hearing. The court denied the motion in a written order. It found that the public defender testified credibly at the hearing and had given defendant "all of the information he needed to make an informed decision" about the plea offer. The court found defendant's testimony
not credible and rejected his claim that he never understood the felony murder rule or complicitor liability until postconviction counsel explained it to him. Rather, the court found that the public defender appropriately advised defendant, but defendant refused to accept the information, instead choosing to retain private counsel. So, the court concluded that the public defender's performance wasn't deficient.Docket No. 11-8 at pp. 3-6.
The court also found that, although private counsel may have performed deficiently, defendant failed to show that he was prejudiced by such performance. Instead, the court found that defendant was determined to reject the plea offer.
The Colorado Court of Appeals then addressed Applicant's ineffective assistance claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984), and resolved the claim on the following grounds:
An attorney's failure to present his client with the opportunity to make a reasonably informed decision whether to accept a plea offer is deficient representation. Carmichael v. People, 206 P.3d 800, 806 (Colo. 2009). But, in evaluating counsel's performance, a court must make "every effort . . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. And, "a court must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance." Id.
To show prejudice in the context of a rejected plea offer, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, (1) the plea offer would've been presented to the court (i.e., that the defendant would've accepted the plea and the prosecution wouldn't have withdrawn it in light of intervening circumstances); (2) the court would've accepted its terms; and (3) the conviction, sentence, or both would've been less severe under the offer's terms than under the judgment imposed. Lafler v. Cooper, 566 U.S. 156, 164 (2012).
B. The Public Defender
Defendant argues that the public defender failed to spend adequate time with him or effectively communicate with him given his language, cultural, and mental health barriers. We conclude that the evidence supports the district court's conclusion that the public defender didn't perform deficiently.
The public defender testified that any time he personally met with a Spanish-speaking client, he used certified Spanish language interpreters who he "knew were good at what they did and were accurately translating what [he] was saying." In meeting with defendant, he discussed the ample evidence of defendant's guilt and explained felony murder and complicitor liability. After procuring the plea offer, the public defender did his "best" to explain it to defendant and advised him to accept the offer.
The court credited this testimony and rejected defendant's testimony that he never understood felony murder and complicitor liability until postconviction counsel explained them. The court also rejected defendant's testimony that he was depressed and not thinking clearly and instead found that he had the mental acuity to engage with the public defender, as evidenced by his actively disputing certain facts. True, the public defender testified that he wasn't always sure whether defendant understood the information he presented. But, the record supports the court's determination that this wasn't because of defendant's language or mental health barriers or the public defender's deficient advisement, but rather defendant's stubbornness. The public defender said that talking to defendant was sometimes "like talking to a child who only responds no, no, no, but you can't get any sort of analysis or thought behind it." And despite the public defender's efforts to be direct with defendant, defendant steadfastly refused to admit why he was at the scene of the crime or "get past . . . flat denials." Indeed, defendant admitted that the public defender informed him that the prosecution's plea offer "was a good deal," and that he could still be found guilty of felony murder even though he hadn't killed the victim. Under these circumstances, and in light of the district court's credibility determinations, we conclude that the court didn't err in determining that the public defender's performance wasn't deficient. See Dunlap [v. People], 173 P.3d [1054,] 1062 [(Colo. 2007)].
Docket No. 11-8 at pp. 7-12.
C. Private Counsel
We also won't disturb the district court's determination that defendant failed to establish that he was prejudiced by private counsel's alleged deficient performance. While we agree with the court that the record contains "many indications" that private counsel "rendered deficient performance," the court rejected—as not credible—defendant's assertion that he would've accepted the plea agreement had he been further advised by private counsel. Rather, the court found that defendant was "unwilling to accept the plea agreement regardless of the lawyer that represented him."
The public defender's testimony, which the court credited, supports a finding that defendant was simply unwilling to engage in meaningful discussions about the plea offer. And despite his testimony that he hired private counsel to "get a better deal," defendant said he understood that the prosecution was not likely to continue negotiating after he rejected their one and only plea offer. Lastly, we won't second-guess the court's prejudice conclusion because it rests in part on the court's credibility determination as to defendant's testimony that he would've accepted the plea offer. See People v. Harlan, 109 P.3d 616, 627-28 (Colo. 2005) ("We cannot second-guess determinations of the trial court regarding witness credibility."). But the court's conclusion also rested on its finding that defendant was adequately advised by the public defender about the plea offer and his chances at trial and still rejected the offer.
We aren't persuaded otherwise by defendant's assertion that the court failed to consider objective, corroborating evidence that he would've pleaded guilty had private counsel advised him about the plea offer. While we recognize the substantial sentencing disparity between the plea offer and defendant's conviction at trial, we can't disregard the court's credibility findings.
b. AEDPA analysis
A defendant in a criminal case has a Sixth Amendment right to the effective assistance of counsel that extends to the plea-bargaining process. See Strickland, 466 U.S. at 686; Lafler, 566 U.S. at 162. See also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that two-part Strickland inquiry applies to claims that counsel provided ineffective assistance in plea negotiations). To establish 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. Strickland, 466 U.S. at 687.
"Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. There is "a strong presumption" that counsel's performance falls within the range of "reasonable professional assistance." Id. "When assessing a state prisoner's ineffective-assistance-of-counsel claims on habeas review, [federal courts] defer to the state court's determination that counsel's performance was not deficient and, further, to the attorney's decision in how to best represent a client." Harmon v. Sharp, 936 F.3d 1044, 1058 (10th Cir. 2019) (internal quotation marks and brackets omitted). Thus, review under § 2254(d) is doubly deferential. See id.
Under the prejudice prong Applicant 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. See also Lafler, 566 U.S. at 164 (where the alleged ineffective assistance caused the petitioner to reject a plea offer, the petitioner must show, inter alia, "that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances."). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Harrington, 562 U.S. at 112 (stating that "[t]he likelihood of a different result must be substantial, not just conceivable.").
The Colorado Court of Appeals analyzed Applicant's ineffective assistance claim under the correct legal standards set forth in Strickland and Lafler. This Court must decide whether the state appellate court's application of those standards was reasonable, keeping in mind that the Colorado Court of Appeals' determination of Applicant's claim rested largely on credibility determinations made by the state post-conviction court ("Rule 35(c) court"), following an evidentiary hearing. A state court's credibility determinations are factual findings subject to deference by the federal habeas court under § 2254(d)(2) so long as the findings were reasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006). See also Romano v. Gibson, 239 F.3d 1156, 1175 (10th Cir. 2001) (stating that the federal habeas court "must defer to the district court's implicit credibility determination underlying its factual finding."). In addition, the state court's credibility determinations are presumed correct under § 2254(e)(1), absent clear and convincing evidence to the contrary. See Ellis, 872 F.3d at 1071 n.2.
See R., 8/24/16 Evid. Hrg Tr.; Court File, at pp. 313-317.
The Court notes that the Supreme Court has "explicitly left open the question whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2)." Wood v. Allen, 558 U.S. 290, 300 (2010) (citing Rice, 546 U.S. at 339).
i. The public defender
The Rule 35(c) court found, based on the public defender's testimony, that the public defender "attempted on multiple occasions to explain to [Applicant] the critical legal issues and the benefits of accepting the plea offer," but "[Applicant] refused to accept this information and communicate in a productive way with counsel." The public defender recommended to Applicant that he take the plea, but Applicant would not even admit to being at the location where the shooting occurred and was not receptive to the plea offer. Applicant testified that, at the time of plea negotiations, he believed he should have received a plea offer of 8-10 years, not 10-38 years, because he was "innocent"—i.e., he wasn't the shooter and he did not move the victim from one place to another—and, that he fired the public defender and retained the Romero firm to represent him because he hoped to get a better plea deal.
R., Court File at p. 316; see also 8/24/16 Hrg. Tr., Jason Young testimony, at pp. 1012-17, 1020, 1037-39, 1044.
R., 8/24/16 Hrg. Tr., Young testimony, at pp. 1023-25.
R., 8/24/16 Hrg. Tr, Ponciano Verduzco-Cervantes testimony, at pp. 1132-33, 1147-48.
This Court defers to the state court's finding, based on the testimony at the Rule 35(c) hearing, that Applicant refused the plea offer of 10-38 years because he did not like the offer, not because the public defender performed deficiently in explaining the strength of the prosecution's case against him. Applicant does not point to any clear and convincing evidence to the contrary. Furthermore, the state court's rejection of Applicant's testimony that he did not understand the legal principles of felony murder and complicity because of a language barrier was not unreasonable. Applicant conceded at the Rule 35(c) hearing that the public defender had explained to him, through a certified Spanish language interpreter, that even though he did not "pull the trigger" he could be held legally accountable to the same degree as his co-defendant (the shooter). In addition, Applicant was present at the preliminary hearing where the trial court ruled that the evidence against him was sufficient to proceed to trial.
Id. at p. 1130.
Id., Young testimony, at p. 1035; Court File at p. 316.
The Court finds that the Colorado Court of Appeals' determination that the public defender's assistance in plea negotiations was within the range of reasonable professional assistance was not so lacking in justification under the Strickland standard as to be beyond all possibility for fair-minded disagreement. In addition, the state appellate court's decision was based on a reasonable determination of the facts in light of the evidence presented in the state court proceeding.
Applicant is not entitled to relief with regard to his claim that the public defender provided constitutionally ineffective assistance in plea negotiations.
ii. Private counsel
Applicant further claims that private counsel performed deficiently by failing to ask the prosecutor to reopen plea negotiations after the plea offer expired. Docket No. 1 at p. 7.
The state court record reflects that Applicant was present at a pre-trial hearing in July 2008, when the public defender told the court that Applicant's co-defendant had accepted a plea offer of 10-38 years; the same plea offer had been extended to Applicant; and Applicant wished to hire private counsel to replace the public defender. The prosecutor stated on the record that Applicant would not receive a more favorable plea offer in the future. The Romero firm entered its appearance on Applicant's behalf approximately two weeks later. At a September 11, 2008 pre-trial hearing, the prosecutor informed the court that the plea offer had expired and Applicant's counsel stated that Applicant was not interested in the plea deal.
R., 7/11/08 Hrg. Tr. at pp. 958-599.
Id. at p. 959.
R., 7/24/08 Hrg. Tr.
R., 9/11/08 Hrg. Tr., at pp. 1197-98.
The Rule 35(c) court's determination that Applicant "was unwilling to accept the plea agreement regardless of the lawyer that represented him" is supported by the state court's findings crediting the testimony of the public defender. Moreover, Applicant was present at the July and September 2008 hearings when the prosecutor stated that a more favorable plea offer would not be extended. Applicant had no objective basis to believe that plea negotiations would be reopened at private counsel's request once the plea offer expired. Mere speculation that the prosecutor would have extended a more favorable plea offer, after twice informing the trial court that no better offer would be forthcoming, is insufficient to satisfy the prejudice prong of the Strickland inquiry. See Hooks v. Workman, 689 F.3d 1148, 1187 (10th Cir. 2012); see also Strickland, 466 U.S. at 693 ("It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.").
R., Court File, at p. 317.
The Colorado Court of Appeals' determination that Applicant failed to demonstrate any prejudice resulting from private counsel's performance in the plea negotiation process was based on a reasonable determination of the facts and was consistent with Strickland and Lafler. "What this case comes down to is a clear case of buyer's remorse, which does not entitle [Applicant] to relief." Baertschy v. Raemisch, No. 18-1252, 764 F. App'x 732, 740 (10th Cir. Feb. 28, 2019) (unpublished).
Applicant is not entitled to relief with respect to his claim that private counsel provided constitutionally ineffective assistance in plea negotiations.
b. Failure to provide effective assistance at trial
Applicant's allegation in claim five that private counsel was ineffective in failing to subject the prosecution's case to meaningful adversarial testing is procedurally barred because Applicant failed to exhaust this claim in the state courts. See Coleman v. Thompson, 501 U.S. 722, 735, n.1 (1991).
A claim that is subject to a procedural bar may nonetheless be denied by the federal habeas court on the merits so long as the entire application is dismissed on the merits. See Wood v. McCollum, 833 F.3d 1272, 1273-74 (10th Cir. 2016); Moore v. Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002); see also 28 U.S.C. § 2254(b)(2).
In support of his claim, Applicant argues that private counsel who represented him at trial had "no felony level experience" and "didn't investigate the facts of the case." Docket No. 1 at p. 7. However, Applicant does not articulate how he was prejudiced by these deficiencies. As such, Applicant fails to demonstrate a reasonable probability that he would have been acquitted, absent the alleged deficiencies in counsel's performance, as required under the prejudice prong of the Strickland inquiry.
Applicant is not entitled to relief with respect to his claim that private counsel provided constitutionally ineffective assistance at trial.
V. CONCLUSION
For the reasons discussed in this order, Applicant is not entitled to relief on any of his claims. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Docket No. 1, is denied and this case is dismissed with prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
DATED June 24, 2020.
BY THE COURT:
/s/_________
PHILIP A. BRIMMER
Chief United States District Judge