Free Supplement/Amendment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00790 DAVID TURLEY, Applicant, v. AL ESTEP, Warden, Limon Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. SUPPLEMENTAL ANSWER TO FEDERAL HABEAS APPLICATION In response to this court's order of May 10, 2006, undersigned counsel for the Respondents submit this Supplemental Answer to Federal Habeas Application. Claim Five The Applicant argues that the prosecution violated his rights to a fair trial under the Sixth and Fourteenth Amendments of the federal constitution were violated by the prosecutor's eliciting testimony that the Applicant's wife visited him in jail. The Applicant raised this claim in his first postconviction motion and it was reviewed by the Colorado Court of Appeals (CCA) (Appendix H).

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On claims of prosecutorial misconduct, since federal review is limited to the narrow issue of due process, the court looks to the fairness of the trial rather than the culpability of the prosecutor. Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000) (citing Darden v. Wainright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986)). Relief will be granted where the misconduct "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' " Darden v. Wainwright, 477 U.S. at 81 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed. 431 (1974)). For post AEDPA writs, the federal court must give heightened deference to the state's determination of petitioner's claims of misconduct. See Macias v. Makowski, 291 F.3d 477, 453-54 (6th Cir. 2002). The court focuses its attention not on whether the state court reached the right outcome but rather whether the state court unreasonably applied established federal law. Id. The Applicant argued in the state courts that reversible error occurred when the prosecutor mentioned four times that he was in jail. At the trial, the following occurred during the prosecution's crossexamination of Debra Turley, the Applicant's wife: Q. A. Okay. Did Vernon [co-defendant] have a vehicle? He had one but it doesn't run.
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Q.

Did you ever see him drive the truck or the Blazer?

A. The Blazer was my vehicle. Nobody drove my vehicle expect David when they went out or other times. Joe never drove my Blazer. Q. A. David only drove it when he went out? When he went out.

Q. Do you realize how the Blazer plays in this case? Did you hear about that before talking with your husband at jail and with the defense attorney how important the Blazer is in this case? A. I know that the Blazer was involved but I have not talked to him. Q. You didn't talk to your husband at the jail about the Blazer ever? A. Oh, I'm sure we have talked about the Blazer, but nothing specific. We are trying to get it fixed so that it will run so that I can use it. Q. But as it related to this case you never mentioned or happened to talk about, okay, where was the Blazer on April 28th? You never talked about that with your husband at the jail? A. No, because I always drove the Blazer. Q. Did you talk about the fact that you always drove the Blazer and that what you would come in a testify to? A. I don't remember us talking about that, no. Q. So you recall pretty much went in and just talked about things and the weather and things and the family, and not about this case? A. Q. No. Nothing?
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A. He told me trial dates and we talked about it, but that's not ­ we didn't talk details. Q. And you probably went there every two or three days to see him, at least? Sometimes everyday? A. No, you cannot visit everyday. They are only entitled to three visits a week. Q. A. Q. A. So you average about three visits a week? When my work schedule allows, yes, I do. Since he's been in jail? Yes.

(Appendix G, pp. 18-19) (emphasis added). Because the Applicant did not object to the testimony at issue, the Colorado Court of Appeals reviewed the issue on a plain error standard.1 The CCA rejected the Applicant's argument that the references to his being in jail were gratuitous and wholly undermined the presumption of innocence, because, taken in context, the colloquy, as well as much of the remainder of the cross-examination, were intended to explore the possibility that the Applicant and his wife and fabricated certain testimony. The prosecutor was identifying to the witness the circumstances under which the possible collusion occurred and directing her attention to the conversations that took place at the jail. The CCA found that the references to
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Under Colorado law, plain error occurs when the appellate court, after reviewing the entire record, can say with fair assurance that the error so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction (Appendix H, p. 5, citing, Bogdanov v. People, 941 P.2d 247 (Colo. 1997)). 4

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being in jail were relatively few and innocuous were not sufficient to undermine the presumption of innocence, and that there was nothing in the record to overcome the presumption that the jurors followed the instructions, including the instruction on the presumption of innocence. Although the CCA stated that it would have been better practice to avoiding mentioning pretrial detention to the jury, the isolated references did not so completely undermine the fundamental fairness of the trial as to constitute plain error (Appendix H, pp. 5-7). A review of the ruling by the State court was not contrary to or an unreasonable application of clearly established federal law and was not an unreasonable determination of the fact in light of the evidence. Claim Six Because of a conflict with the public defender's office, private counsel was appointed for the purpose of dealing with the issue of the 1979 conviction. The trial court shows that this counsel concluded that the plea was valid and no proceedings regarding the validity of the plea were conducted in the trial court. The Applicant did not raise the issue of the validity of the 1979 conviction in the direct appeal (Appendix G, pp. 25-26). The Applicant raised the issue in his first postconviction motion, and the state district court rejected it. On appeal, the state argued that the Applicant's
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attack on the conviction was time barred under Colorado law and that the conviction was valid on the merits (Appendix M, 04-cv-00789). Under Colorado law, § 16-5-402, C.R.S. (2005), sets limitation periods for the filing of collateral attacks on criminal convictions. As a general rule, a defendant has three years in which to attack any felony conviction other than for a class 1 felony conviction. However, defendants convicted of a felony before July 1, 1984, had a five-year grace period in which to collaterally attack their convictions. See People v. Mershon, 874 P.2d 1025, 1035 (Colo. 1994). The state argued that the Applicant, who filed his collateral attack in 1996, was clearly outside the time limit in which to attack his 1979 conviction. If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in § 16-5-402(1.5), the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court. The Applicant's claim on appeal was that because he did not formally say the word "guilty" at the providency hearing, the judgment of conviction is invalid. However, the record of the providency hearing shows that defense counsel stated that a disposition had been reached involving the Applicant entering a plea of guilty to the charge of aggravated motor vehicle theft. Defense counsel stated the
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substance of the advisement regarding the guilty plea. The prosecutor asked the Applicant if he understood the rights he would be waiving by entering the plea, and the Applicant said he did. The Applicant said he was entering the plea voluntarily. The court accepted the Applicant's plea and found that it was intelligently, knowingly, and voluntarily made (Appendix G, p. 27). The Applicant argued that the technical failure to require him personally to state on the record that he was pleading guilty rendered the conviction invalid and precluded the use of the conviction for habitual criminal purposes. The Applicant contended that the statutory three-year time limit applicable to his conviction did not apply, because the judgment of conviction was void ab initio (Appendix M, 04cv-789). The CCA rejected this argument. The CCA noted that early in the development of the criminal law, emphasis was placed on rigid formalities of the arraignment and the taking of a plea, but that such has never been the rule under Colorado law. The CCA found that the Applicant was properly arraigned and properly advised of the charges against him, and that his defense counsel repeatedly stated that the Applicant was accepting the offered disposition and was pleading guilty. The CCA found that the irregularity in the providency hearing was "technical" and did not affect his substantial rights. Therefore, the CCA found
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that the judgment of conviction was not void ab initio and was constitutionally obtained. Accordingly, the CCA found that because the Applicant did not argue that his collateral attack did not fall into any of the exceptions to the statutory time limit, the Applicant was time-barred from bringing the attack on the conviction (Appendix M, 04-cv-789). Claim Nine The Applicant argues that the trial court violated his rights to equal protection and due process under the Sixth and Fourteenth Amendments of the federal constitution by not severing his case from the co-defendant's case in regard to the habitual criminal counts. The Applicant did not raise this issue in his direct appeal or his first motion for postconviction relief (Appendix A, pp. i-ii; Appendix F, pp. i-ii). The Applicant does appear to have presented the issue in the state district court in a pleading during the proceedings in his first postconviction motion (Traverse to the Answer, p. 8). Because the Applicant did not present this issue to the CCA, he has procedurally defaulted on this claim. Even if he had not defaulted on the claim, it would fail on the merits.

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The Applicant argues that it was error not to grant severance as to each count of the habitual criminal charges as to each defendant since there was no common thread to the charges or the persons charged in terms of the past convictions. The Applicant claimed he was unfairly prejudiced because there the likelihood of being found guilty of one on one count is greater with the presence of two other counts. According to the Applicant, the prejudice of having three prior convictions considered at one trial was exacerbated when he was tried together with the co-defendant and his three prior convictions. Under Colorado law, a criminal defendant is entitled to severance as a matter of right if there is evidence which is admissible against one but not all of the parties and that evidence is prejudicial to the defendant against whom the evidence is not admissible. § 16-7-101, 8A C.R.S. (1986); Crim. P. 14. A trial court has the discretion to order severance in other cases. A court should be guided in such a decision by the following considerations: (1) whether the number of defendants or the complexity of the evidence is such that the jury will confuse the evidence and the law applicable to each defendant; (2) whether, despite cautionary instructions, the evidence admissible against one defendant will be improperly considered against the other defendant(s); and (3) whether the
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defenses asserted by each defendant are antagonistic. People v. Lesney, 855 P. 2d 1364 (Colo. 1993). Such a decision is within the sound discretion of the trial court. Id. Here, the proceedings before the jury on the habitual criminal counts were not in determination of whether the Applicant was guilty of the crimes, but only to the issues pertaining to identity of the Applicant as being the individual named in the habitual counts as the one who was previously convicted of a felony. See 1613-103, C.R.S. (1986). A review of the record on this issue shows that the evidence was overwhelming. Beyond speculation, the Applicant has not pointed to specific facts or circumstances in the record that being tried on three habitual counts and with a co-defendant caused the jury to be unfairly prejudiced against him. Nor did the Applicant establish that, despite cautionary instructions, the habitual criminal evidence admissible against the co-defendant was improperly considered against him. See Brown v. People, 238 P.2d 847 (Colo. 1951). Claim Twelve The Applicant contends that an improper complicity instruction given by the Court deprived him of due process. The Applicant appears to have included this claim in his consolidated supplement to his first motion for postconviction relief (Traverse to the Answer,
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pp. 31-32). However it does not appear that the Applicant ever presented this claim to the CCA (Appendix A, pp. i-ii; Appendix F pp. 1-2; Appendix K). The Applicant has procedurally defaulted on this claim because he did not present it to the CCA. Even if the Applicant had not procedurally defaulted on the claim, it would fail on the merits. The Applicant's traverse (p. 26) indicates that the following instruction was given: "A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt: 1. A crime must have been committed. 2. Another person must have committed all or part of the crime. 3. The defendant must have had knowledge that the other person intended to commit all or part of the crime. 4. The defendant did intentionally aid, abet, advise, or encourage the other person in the commission or planning of the crime."2 Several years after the Applicant's trial concluded, the Colorado Supreme
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The instruction's language follows the Colorado pattern jury instruction for complicity, COLJI-Crim 6:04. 11

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Court held that the "all or part of" language in the above-quoted pattern instruction is erroneous. People v. Rodriguez, 914 P.2d 230, 276 (Colo. 1996). Without engaging in extended analysis of the issue, the Colorado Supreme Court in Rodriguez agreed with the defendant's contention that, because of the "all or part of" language, the instruction permitted the jury to convict the defendant of the substantive crime under a complicity theory even though it found that the defendant was complicit in only some of the elements; in Rodriguez case, the defendant argued that the defective instruction could permit a conviction for first degree murder on a complicity theory even though the jury found that he had only agreed with the principal to assault the victim. Id. The Colorado Supreme Court revisited the "all or part of" language of the instruction the following year in Bogdanov v. People, 941 P.2d 247, 255-56 (Colo. 1997). Acknowledging that Rodriguez characterized the "all or part of" language as error, the court in Bogdanov retreated from that blanket assertion, recognizing circumstances in which the "all or part of" language is appropriate. The court cited an example in which two persons conspire to engage in the crime of robbery, which has two elements: (i) the taking of property from another, and (ii) the use of violence. Id. at 256. In the court's example, two people conspire to rob a victim one person assaults the victim with a knife while the other steals the victim's
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money. In this circumstance, the court observed that neither person has committed every element of the crime of robbery; rather, each person has committed only "part of" the crime. In this circumstance, it would be appropriate to use the "all or part of" language in a complicity instruction, as complicity requires only that all of the elements of the crime be committed, not that any single person has done so. Id. By contrast, in cases where two persons conspire to commit a crime, and one of the two commits all of the elements of the crime and the other does not commit any of the elements, a complicity instruction containing the "all or part of" language is error. Id. The Fourteenth Amendment to the U.S. Constitution guarantees every defendant in state court the right to due process. However, not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question to be considered is "whether the ailing instruction so infected the entire trial that the resulting conviction violates due process." Middleton v. McNeil, 541 U.S. 433, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004) (internal quotes omitted). The issue whether "the error had a substantial and injurious effect or influence in determining the jury's verdict" and whether "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Turrentine v. Mullin, 390 F.3d 1181, 1191 (10th Cir. 2004).
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In Case No. 89CR1827, the evidence at trial showed that the Applicant acted as a principal in the commission second degree kidnapping, first degree sexual assault and robbery (Appendix B, pp. 1-5). Because the jury could have convicted the Applicant as a principal, any defects in the complicity instruction are irrelevant, as such an instruction would not have been material to the jury's verdict. Claim Thirteen The Applicant did not present any ineffective assistance of counsel claims in his direct appeal (Appendix A, pp. i-ii). In his consolidated supplement to his first motion for postconviction relief, the Applicant argued that his counsel was ineffective for not challenging his 1979 Adams County conviction (Traverse to the Answer, pp. 31-32). However, the Applicant did not present any ineffective assistance of counsel claims to the CCA in his appeal of the order denying his first postconviction motion (Appendix F, pp. 1-2). In his second postconviction proceedings, the Applicant argued that: (1) trial counsel was ineffective in failing to adequately investigate and challenge convictions underlying two habitual criminal counts; and (2) postconviction counsel was ineffective in failing to preserve this ineffective assistance of counsel claim, as well as a search and seizure claim, for federal habeas review (Appendix M, p. 2).

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The Sixth Amendment entitles a criminal defendant to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). To establish that counsel was constitutionally ineffective, the Applicant must demonstrate that counsel's performance fell below an objective standard or reasonableness and the counsel's deficient performance prejudiced his defense. Id. at 687-688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. There is a "strong presumption" that counsel's performance falls within the range of "reasonable professional assistance." Id. The Applicant must overcome this presumption by showing that the alleged errors were not sound strategy under the circumstances. Id. To establish the prejudice prong of the Strickland inquiry, the Applicant must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. If the Applicant fails to satisfy either prong of the Strickland test, his ineffective assistance of counsel claim fails. Id. at 697. The CCA found that, as a matter of law, the Applicant could not satisfy the Strickland test with respect to his claim that trial counsel should have investigated and challenged his 1979 and 1981 convictions. Under the Colorado Supreme Court's interpretation and application of § 16-5-402, the collateral attack
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limitations statute, convictions of this vintage had to be challenged by July 1, 1989. See People v. Fagerholm, 768 P.2d 689, 693 (Colo. 31989). The CCA noted that, as of July 1, 1989, the Applicant had not yet been charged in the three cases at issue here. Thus, trial counsel could not be faulted for failing to pursue challenges that, as a matter of law, would be barred by § 16-5-402 (Appendix M, pp. 3-4). In reaching this conclusion, the CCA rejected the Applicant's assertion that challenges to his 1979 conviction were not time barred because he never formally entered a plea of guilty in that case and thus, was never, in fact, convicted. The Applicant's void ab initio argument was denied in an earlier appeal (Appendix M, 04-cv-789, pp. 8-10). The CCA also rejected the Applicant's assertions of conflicted trial counsel excusing application of the § 16-5-402 time bar. Those conflicts could have arisen only after trial counsel were appointed, which occurred here after the period for challenging the 1979 and 1981 convictions had expired. The Applicant had ample opportunity prior to July 1, 1989 to challenge his 1979 and 1981 convictions (Appendix M, pp. 4-5). The CCA also reviewed the Applicant's ineffective assistance claims regarding his state postconviction counsel. Any claim the Applicant is making in his Application that postconviction counsel was ineffective is not cognizable on federal habeas corpus review. There is no constitutional right to counsel in state
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postconviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Even if the claim were reviewable it would fail on the merits. The CCA rejected the Applicant's contention that postconviction counsel was ineffective in failing to adequately raise or otherwise preserve for federal court review this claim of ineffective trial counsel. See Gray v. Bowersox, 281 F.3d 749, 756 n.3 (8th Cir. 2002)(where the underlying claim would have been without merit, a claim of ineffective assistance of counsel in not making it is not viable). And the CCA rejected the Applicant's contention that postconviction counsel was ineffective in failing to preserve a search and seizure issue for federal review by not including it in a petition for certiorari to the Colorado Supreme Court. The applicant could not show prejudice from counsel's failure to include the search and seizure issue in the petition for certiorari. "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067 (1976)(footnotes omitted); see also Cannon v. Gibson, 259 F.3d 1253, 1260-61 (10th Cir. 2001).
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Because defendant was afforded a full and fair opportunity to litigate his search and seizure claim, a federal court would have been precluded from reviewing the merits of that claim even if it had been included in the certiorari petition. See Smallwood v. Gibson, 191 F.3d 1257, 1265 (10th Cir. 1999)(finding full opportunity to litigate where defendant filed a motion to suppress evidence, and both trial and appellate courts thoughtfully considered the facts and rejected the claim on its merits). Thus, even assuming counsel were somehow derelict in not including this claim in the certiorari petition, defendant has suffered no prejudice (Appendix M, pp. 8-9). A review of the ruling by the State court was not contrary to or an unreasonable application of clearly established federal law and was not an unreasonable determination of the fact in light of the evidence. CONCLUSION For the stated reasons and authorities presented here and in the Answer to Federal Habeas Application, the Respondents ask this court to dismiss with prejudice the application for habeas corpus relief.

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JOHN W. SUTHERS Attorney General s/ Roger G. Billotte Roger G. Billotte* Assistant Attorney General Criminal Appeals Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5785 *Counsel of Record CERTIFICATE OF SERVICE This is to certify that on this 21st day of June 2006, I electronically filed the above SUPPLEMENT TO FEDERAL HABEAS APPLICATION with the Clerk of Court using the CM/ECF system, and I hereby certify that I have mailed the SUPPLEMENT TO FEDERAL HABEAS APPLICATION by placing the same in the United States Mail, first-class postage prepaid, at Denver, Colorado, this 21st day of June 2006 addressed as follows: David Turley Prisoner No. 45921 Limon Correctional Facility 49030 State Highway 71 Limon, CO. 80826

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