Free Response to Habeas Petition - 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-EWN-CBS DAVID TURLEY, Applicant, v. AL ESTEP, WARDEN, Limon Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. ANSWER TO FEDERAL HABEAS APPLICATION

JOHN W. SUTHERS Attorney General ROGER G. BILLOTTE* Assistant Attorney General Criminal Appeals Unit Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5785 *Counsel of Record

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00790-EWN-CBS DAVID TURLEY, Applicant, v. AL ESTEP, Warden, Limon Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. ANSWER TO FEDERAL HABEAS APPLICATION

Respondents, having been served with this Court's Order to Show Cause why the Application for Writ of Habeas Corpus should not be granted, answer, through the Attorney General of the State of Colorado, as follows: I. LAWFUL CUSTODY

Respondents deny the allegations of the application except as specifically admitted in this Answer. Respondent Estep has lawful custody of the Applicant, David Turley, as the result of judgments of conviction and sentences imposed by the District Court of the City and County of Denver, State of Colorado, Case No. 89CR1827. In 89CR1827, the Applicant was convicted of first degree sexual assault, second

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degree kidnapping, robbery, and sentenced as an habitual offender. The State trial court sentenced the Applicant to the custody of the Colorado Department of Corrections to serve a term of life imprisonment with the possibility of parole. II. A. CASE HISTORY: STATE COURT PROCEEDINGS Offenses, Trial, and Convictions

In 1989, the Applicant, was convicted of sexually assaulting a woman in Denver and being an habitual criminal. Following his judgment of conviction 89CR1827 the Applicant filed a direct appeal in the Colorado Court of Appeals. The Applicant raised the following claims in the direct appeal: -The trial court abused its discretion by admitting into evidence

references to arrest and search warrants issued on unrelated charges. -The trial court violated the Applicant's due process right to a fair trial

by allowing an in-court voice identification procedure. -The trial court erred by allowing the jury to commence deliberations

late on a Friday afternoon absent adequate safeguards to ensure against a coerced verdict.

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--

The trial court inadequately advised the Applicant of the

consequences of testifying by failing to inform him that evidence of prior felony convictions elicited in habitual criminal proceedings. -The trial court erred in failing to find that two of the prior felony

convictions forming the basis for the habitual criminal charges were constitutionally infirm. -The convictions for both second degree kidnapping involving sexual

assault and the underlying sexual assault are proscribed by the double jeopardy clause of the federal constitution. The conviction was affirmed on direct appeal. People v. Turley, (Colo. App. No. 90CA1542, May 20, 1993) (Not Selected for Publication). A petition for certiorari was denied on December 27, 1993. The mandate issued on January 11, 1994. On December 18, 1996, the Applicant filed a Crim. P. 35(c) motion for postconviction relief. The state district court denied the motion without a hearing, and the Applicant appealed the order of denial. On appeal, the applicant raised the following claims: -The Applicant's equal protection rights were violated by the trial

court's application of § 16-10-104(1), C.R.S. (1986) and Colo. Crim. P. 24(d). The
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Applicant argued that the statute and the rule, which address peremptory challenges of jurors, impermissibly distinguish between those defendants facing life in prison as a result of an habitual criminal conviction and those facing the same consequence as a result of a conviction for a capital offense where the death penalty cannot or will not be imposed. -The Applicant's Fourth Amendment rights were violated by the trial

court allowing admission of evidence resulting from an illegal search. -The Applicant's right to due process was violated by references

during the trial to arrest and search warrants. -The Applicant was unfairly prejudiced by statements during the trial

that his wife visited him in jail. --The Applicant was given a defective Curtis advisement. The Applicant's 1979 aggravated motor vehicle conviction was

unconstitutional. -The trial court improperly instructed the jury in the habitual criminal

phase of the trial. -The Applicant's right to due process was violated because the verdict

forms given to the jury, in effect, directed a verdict to certain elements. -The cumulative effect of error warranted reversal.
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The denial of postconviction relief in 89CR1827 was affirmed on appeal. See People v. Turley, (Colo. App. No. 99CA37, July 27, 2000). The Colorado Supreme Court denied a petition for writ of certiorari on February 20, 2001. The mandate issued on March 5, 2001. On August 30, 2001, the Applicant pro se, filed a second motion for postconviction relief under Colo. Crim. P. 35(c) for his judgment of conviction in 89CR1827. This motion also included the Applicant's convictions in 89CR1651,89CR1652.1 In September of 2001, the Applicant filed a supplemental motion to the one filed in August. The state district court denied relief without a hearing, and the defendant appealed. On appeal, the Applicant raised the following claims: -Trial counsel was ineffective in failing to adequately investigate and

challenge convictions underlying two habitual criminal counts. -Postconviction counsel was ineffective for failing to raise or preserve

for federal court review a claim of ineffective trial counsel. -Postconviction counsel was ineffective for failing to preserve a search

a seizure issue for federal review by not including it in a petition for certiorari.
1

The convictions in 89CR1651 and 89CR1652 are the basis for the Mr. Turley's habeas application in 04-cv-00789. 5

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The Colorado Court of Appeals affirmed the order of denial in Peolple v. Turley, (Colo. App. No. 01CA1991, November 6, 2003). The Colorado Supreme Court denied a petition for writ of certiorari on February 20, 2001. The mandate issued on March 5, 2001. III. CASE HISTORY: FEDERAL HABEAS PROCEEDINGS

On April 19, 2004, the Applicant filed a federal habeas application. IV. TIMELINESS OF THIS APPLICATION UNDER 28 U.S.C. § 2244 The Applicant filed his federal application for habeas corpus subsequent to the effective date of the AEDPA, and is, therefore, governed by AEDPA. Williams v. Taylor, 529 U.S. 420, 429 (2000); Lindh v. Murphy, 521 U.S. 320, 326-327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Thomas v. Gibson, 218 F.3d 1213, 1219 (10th Cir. 2000). AEDPA imposes a one-year period for the filing of "an application for a writ of habeas corpus by a person in custody pursuant to the judgment of State court." 28 U.S.C. § 2244(d). Where an applicant's conviction became final prior to the enactment of AEDPA, as here, the one-year limitation period runs from April 24, 1996. Miller v. Marr, 141 F.3d 976, 977 (10th Cir. 1998), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142 L.Ed.2d 173 (1998).

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The limitation period is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). The limitation period is further tolled during the time for appealing the denial of post-conviction relief. Gibson v. Klinger, 232 F.3d 799, 803 (10th Cir. 2000). In this case, the Applicant had filed his first State postconviction motion on December 18, 1996. The Applicant appealed the denial of the motion, the ruling was affirmed, and the petition for certiorari was denied by the Colorado Supreme Court on February 20, 2001. Therefore, the statue of limitations began running on April 25, 1996 and ran for 237 days before the Applicant filed his first State postconviction motion on December 18, 1996. The statute of limitations began running again on February 21, 2002, after the Colorado Supreme Court denied a petition for writ of certiorari, and ran until it expired on June 29, 2001. The Applicant filed his second motion for State postconviction relief on August 30, 2001, 62 days after the statute of limitations expired. The Applicant filed his federal habeas corpus action on April 19, 2004, 1055 days after the statute of limitations expired. The following chart illustrates the time line within which Applicant could file his § 2244 petition. December 27, 1993: State conviction final pursuant to 28 U.S.C.(d)(1)(A).
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April 25, 1996: § 2244(d)(1) limitations period begins to run. December 18, 1996: Limitations period is tolled after 237 days due to filing of first Crim. P. 35(c) action. February 20, 2001: Tolling ends when Colorado Supreme Court denies review of the first Crim. P. 35(c) action. February 21, 2001: Limitations period begins to run with 128 days remaining. June 29, 2001: Statute of limitations expires. August 30, 2001: Second motion for State postconviction relief is filed 62 days after the statute of limitations expires. March 22, 2004: Colorado Supreme Court denies review of the second Colorado Crim. P. 35(c) action. April 19, 2004: This federal habeas action is filed, 1055 days after the statute of limitations expired. Thus, the Applicant's action was filed 1055 days after the expiration of the one-year period for filing a federal habeas corpus action. 28 U.S.C. 2244(d) (1). Therefore, the Application should be dismissed on the grounds that it is untimely. If this court does not agree that the Application is untimely, the Respondents have addressed the issues regarding exhaustion, procedural default, and the merits.

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V.

FEDERAL HABEAS APPLICATION: CLAIMS RAISED

The Applicant's Application raises fourteen claims. The habeas claims are as follows: Claim One: Section 16-10-104(a), C.R.S. (1986) is vague and unconstitutional because it violates a defendant's right to equal protection under the law. Claim Two: Authorities violated the Applicant's rights under the Fourth Amendment when they seized and searched his wife's vehicle without a warrant. Claim Three: The trial court violated the Applicant's right to a fair trial by improperly advising him about his right to testify in the habitual criminal phase of the trial. Claim Four: The trial court violated the Applicant's rights to due process and equal protection under the law by permitting reference to his arrest on a warrant and the execution of search warrants. Claim Five: The Applicant's rights to a fair trial under the Sixth and Fourteenth Amendments were violated by the prosecutor's eliciting testimony that the Applicant's wife had visited him in jail.

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Claim Six: The use of unconstitutionally obtained convictions to support the Applicant's conviction on the habitual criminal charges rendered his sentence illegal. Claim Seven: The trial court violated the Applicant's constitutional rights to due process by giving improper jury instructions regarding elements and standards of proof necessary for the prosecution to present to support habitual criminal convictions. Claim Eight: The trial judge gave oral jury instructions which, in part, contradicted the written jury instructions regarding the habitual criminal counts. Claim Nine: The trial court violated the Applicant's rights to due process and equal protection under the Sixth and Fourteenth Amendments when it did not sever the Applicant's and co-defendant's adjudication on the habitual criminal charges. Claim Ten: The trial court violated the Applicant's right to due process and equal protection by allowing the admission of improper opinion/hearsay testimony regarding a warrant. Claim Eleven: The trial court violated the Applicant's rights under the Fifth, Sixth, and Fourteenth Amendments when it admitted improper other act evidence in the form of testimony regarding a warrant.
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Claim Twelve: The trial court violated the Applicant's rights to due process and equal protection when it gave the jury an erroneous complicity instruction. Claim Thirteen: The Applicant was denied the effective assistance of counsel. Claim Fourteen: The convictions and sentences should be vacated under the doctrine of cumulative error. VI. EXHAUSTION OF CLAIMS AND PROCEDURAL DEFAULT

A state prisoner may not obtain federal habeas review of a claim unless he has exhausted his available state remedies with respect to the claim. 28 U.S.C. § 2254(b), (c). State remedies have been exhausted when a prisoner has fairly and properly presented the claim to the highest state appellate court. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534-35 (10th Cir. 1994); Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992). The exhaustion doctrine requires a habeas applicant to have first presented his issues to any applicable intermediate state appellate court and then, if unsuccessful, to the state's supreme court. See O'Sullivan v. Boerckel, supra; Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3rd Cir. 1992). Because Colorado law gives an applicant who has lost a claim in the Colorado Court of Appeals the right to file
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a petition for certiorari in the Colorado Supreme Court, see People v. Williams, 736 P.2d 1229 (Colo. App. 1986); Bill Dreiling Motor Co. v. Court of Appeals, 171 Colo. 448, 468 P.2d 37 (1970); C.A.R. 49, 51, and 52, a Colorado applicant who has lost a claim in the Colorado Court of Appeals must raise the claim in a petition for certiorari in the Colorado Supreme Court in order to exhaust his state remedies with respect to the claim. See O'Sullivan v. Boerckel, supra. The failure of an applicant to fully exhaust a particular claim, coupled with the expiration of the time permitted to raise such a claim under state procedural law, results in a procedural default of that claim. Coleman v. Thompson, 501 U.S. 722, 732-33, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Federal habeas review of a defaulted claim is prohibited unless the Applicant can show both cause for the default and prejudice resulting from the alleged constitutional violation; in the alternative, the applicant can show that the court's refusal to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Mixed applications of exhausted and unexhausted claims represent "procedural default for purposes of federal habeas." Harris v. Champion, 48 F.3d 1127, 1131 n. 3 (10th Cir. 1995) (citing Colman, 501 U.S. at 735 n. 1). But instead of dismissing a mixed petition in it entirety, a federal court may deem the

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unexhausted claims procedurally barred, and address only the properly exhausted claims. Id. A. Claim One: Constitutionality of § 16-10-104(a)

The Applicant raised this claim in the State courts and has exhausted his state remedies. B. Claim Two: The Applicant raised this claim in the State courts and

has exhausted his state remedies. C. Claim Three: Admission of evidence regarding a warrant

The Applicant raised this issue in his direct appeal. To the extent that his habeas argument parallels the claim he raised on direct appeal, the Applicant has exhausted his State remedies. The applicant raised a similar issue in his first postconviction motion, but did not seek review of it in his petition for certiorari. To the extent the Applicant is raising new claims in his Application or claims he did not present in a certiorari petition, he has procedurally defaulted on those claims for the purpose of federal habeas review. D. Claim Four: Reference to Applicant's Arrest on Warrant

The Applicant raised a similar issue in his direct appeal. To the extent that his habeas argument parallels the claim he raised on direct appeal, the Applicant has exhausted his State remedies. The Applicant also raised a similar issue in his
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first postconviction motion, but did not seek review of it in his petition for certiorari. To the extent the Applicant is raising new claims in his Application or claims he did not present in a certiorari petition, he has procedurally defaulted on those claims for the purpose of federal habeas review. E. Claim Five: Reference to Applicant's Wife Visiting Him in Jail

The Applicant raised this issue in his Opening Brief in 99CA37. However he did not raise it in his petition for writ of certiorari to the Colorado Supreme Court. Because the Applicant did not raise this claim in his petition for writ of certiorari, he has procedurally defaulted on this claim for the purpose of federal habeas review. F. Claim Six: Use of Unconstitutional Prior Conviction

The Applicant challenged his 1981 Denver District Court conviction and his 1982 Arapahoe County in his direct appeals. He challenged his 1979 Adams County Conviction in his first State postconviction appeal, but did not seek review in his petition for certiorari. In regard to the claims for 1981 and 1982 convictions, the Applicant has exhausted his state remedies. In regard to the 1979 conviction, he has procedurally defaulted on this claim for the purpose of federal habeas review.

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G.

Claim Seven: Improper Oral Jury Instructions Regarding Habitual Criminal Charges

The Applicant raised this issue in his Opening Brief in 99CA37. However he did not raise it in his petition for writ of certiorari to the Colorado Supreme Court. Because the Applicant did not raise this claim in his petition for writ of certiorari, he has procedurally defaulted on this claim for the purpose of federal habeas review. H. Claim Eight. Oral Habitual Criminal Instructions

The Applicant raised the issue regarding habitual criminal instructions in his Opening Brief in 99CA37. However he did not raise it in his petition for writ of certiorari to the Colorado Supreme Court. Because the Applicant did not raise this claim in his petition for writ of certiorari, he has procedurally defaulted on this claim for the purpose of federal habeas review. I. Claim Nine. Severance Regarding Habitual Counts

The Applicant does not appear to have raised this issue in his direct appeal or first postconviction motion. Because the Applicant did not raise this issue, he has procedurally defaulted on this claim for the purpose of federal habeas review.

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J.

Claim Ten. Improper Opinion/Hearsay Regarding Warrant

The Applicant raised a similar issue in his direct appeal. To the extent that his habeas argument parallels the claim he raised on direct appeal, the Applicant has exhausted his State remedies. The Applicant also raised a similar issue in his first postconviction motion, but did not seek review of it in his petition for certiorari. To the extent the Applicant is raising new claims in his Application or claims he did not present in a certiorari petition, he has procedurally defaulted on those claims for the purpose of federal habeas review. K. Claim Eleven: Other Act Evidence in the Form of Testimony Regarding a Warrant

The Applicant raised a similar issue in his direct appeal. To the extent that his habeas argument parallels the claim he raised on direct appeal, the Applicant has exhausted his State remedies. The Applicant also raised a similar issue in his first postconviction motion, but did not seek review of it in his petition for certiorari. To the extent the Applicant is raising new claims in his Application or claims he did not present in a certiorari petition, he has procedurally defaulted on those claims for the purpose of federal habeas review.

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L.

Claim Twelve: Erroneous Complicity Instruction

The Applicant does not appear to have raised this issue in his direct appeal or first postconviction motion. Because the Applicant did not raise this issue, he has procedurally defaulted on this claim for the purpose of federal habeas review. M. Claim Thirteen: Ineffective Assistance of Trial Counsel

The Applicant argued in his second State postconviction motion that his trial counsel was ineffective in not suppressing use of his prior convictions. The Applicant has exhausted his state remedies. In his application, the Applicant also argues that he received ineffective assistance of trial counsel because he was misadvised regarding his right to testify and counsel failed to move for a mistrial. The Applicant does not appear to have raised this issue on appeal in regard to his convictions in 89CR1827. Because the Applicant did not raise this claim he has procedurally defaulted on this claim for the purpose of federal habeas review. N. Claim Fourteen: Cumulative Error

The Applicant raised this issue in his Opening Brief in 99CA37. However he did not raise it in his petition for writ of certiorari to the Colorado Supreme Court. Because the Applicant did not raise this claim in his petition for writ of

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certiorari, he has procedurally defaulted on this claim for the purpose of federal habeas review. VII. STANDARD OF REVIEW FOR FEDERAL WRIT OF HABEAS For applications filed after April 24, 1996, the court applies the federal habeas statute as amended by the AEDPA. See Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003). The Act places new constraints on federal review of applications for writ of habeas corpus. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Where a state court has adjudicated an applicant's claims on the merits, the application for federal habeas will be granted only if the applicant establishes one of the following: (1) the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (1), (2). In other words, under the "contrary to" clause, a federal court may grant a writ of habeas corpus only if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law or decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts. See Williams, 529 U.S. at 412-13. Under the "unreasonable application"
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clause, a federal court may grant the writ if the state court unreasonably applied the governing legal principle to the facts of the applicant's case. Williams, 529 U.S. at 413. The court must determine whether the application was objectively unreasonable. Id. at 409, 120 S.Ct. at 1521. The court presumes the state court made the correct factual determinations, and the applicant bears the burden of rebutting this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e) (1); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002); Martinez, 330 F.3d at 1262. This presumption does not extend to legal determinations or to mixed questions of law and fact. Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000). If the state court employed the wrong legal standard in deciding the merits of the federal issue, the court will not apply a deferential standard of review. Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003). Since the Applicant proceeds pro se, the court construes his pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellman, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).

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VIII. DETAILED DISCUSSION OF APPLICANT'S CLAIMS A. Claim One: Constitutionality of § 16-10-104(a)

The Applicant argues that his equal protection rights were violated by the trial court's application of § 16-10-104(1). This statute and Colorado Crim. P. 24(d) address peremptory challenges of jurors. Crim. P. 24(d) addresses peremptory challenges of jurors: "(1) For purposes of Rule 24 a capital case is a case in which a class 1 felony is charged. (2) In capital cases the state and the defendant, when there is one defendant, shall each be entitled to ten peremptory challenges. In all other cases where there is one defendant and the punishment may be by imprisonment in a correctional facility, the state and the defendant shall each be entitled to five peremptory challenges, and in all other cases, to three peremptory challenges. If there is more than one defendant, each side shall be entitled to an additional three peremptory challenges for every defendant after the first in capital cases, but not exceeding twenty peremptory challenges to each side; in all other cases, where the punishment may be by imprisonment in a correctional facility, to two additional peremptory challenges for every defendant after the first, not exceeding fifteen peremptory challenges to each side...."
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The rule, for the most part, simply reiterates and implements the requirements of the statute. The equal protection clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, Equal Protection Clause. When the government treats an individual differently than it treats similarly situated individuals, it implicates an individual's right to equal protection. See Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Courts have devised the following standards to determine the validity of official action which is challenged on equal protection grounds. The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the stature is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes. Id. at 440, 105 S.Ct. 3249. If a person does not allege discrimination against a suspect class or that the classification burdens a fundamental right, the City only needs a rational

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justification for its actions. See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). The Applicant argues that the statute and the rule impermissibly distinguish between those defendants facing life in prison as a result of an habitual criminal conviction pursuant to § 16-13-101, C.R.S. (1986), and those facing the same consequence as a result of a conviction for a "capital offense" where the death penalty cannot or will not be imposed. The Colorado Court of Appeals in Turley, (Colo. App. No. 99CA37), slip op. at 1, resolved this issue by incorporating its decision in Turley, 18 P.3d 802, 804-805 (Colo. App. 2000)No. 99CA36). In that opinion, the State court found that at the time of the Applicant's convictions at issue here, the sentencing statutes required a minimum of life in prison without eligibility for parole for 40 years for a class 1 felony. The same sentence was at that time mandatory for one found to be an habitual criminal. The Applicant argues that those facing the same mandatory penalty upon conviction are similarly situated for purposes of equal protection analysis. However, the Court of Appeals concluded that, even if that is true, the Colorado General Assembly's classification was not irrational.

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The State court found that the statute and the rule create a clear distinction between those charged with class 1 felonies and those charged with lesser felonies, and to the former they afford greater protection. That classification is not irrational inasmuch as class 1 felonies are plainly the most serious of offenses, and the Colorado General Assembly could rationally perceive that additional procedural protections for such defendants are warranted. Because being an habitual offender is not a substantive offense but is, instead, a sentence enhancing circumstance, the State court did not perceive any irrationality in the Applicant receiving fewer peremptory challenges than afforded to defendants facing prosecution for the most serious offenses recognized under Colorado law. Accordingly, The Colorado Court of Appeals perceived no error in the postconviction court's ruling that defendant's equal protection rights were not violated. 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.

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B.

Claim Two: Illegal Search and Seizure

In his first State postconviction motion the Applicant alleged that he was deprived of his Fourth Amendment rights against unreasonable search and seizure based on the illegal seizure of this wife's vehicle and the trial court's denial of his motion to suppress. The Colorado Court of Appeals reviewed and rejected the claim in Turley, (Colo. App. No. 99CA37), slip op. at 1-4. The Applicant is now seeking review of this issue in his habeas application. However, "[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 and seizure was introduced at his trial." Because the Applicant was afforded a full and fair opportunity to litigate his search and seizure issue claim, this court is precluded from reviewing the merits of that claim. 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).

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C.

Claim Three: Improper Advisement of the Right to Testify

The Applicant maintains that the advisement of right to testify he received pursuant to People v. Curtis, 681 P.2d 504 (Colo. 1984) was improper in two respects. First, the applicant argues that he was not properly advised that the waiver of his right to testify in the substantive phase of the trial would not operate as a waiver of his right to testify in habitual criminal phase. Second, that if he were to testify in once case but not the other, his prior convictions could be used for impeachment only as to the case in which he testified. Under Colorado law, a trial court is required to explain to a defendant his right to testify and to obtain a formal waiver of the right during the guilt/innocence phase of the trial. Curtis, supra. The court, however does not need to explain every aspect of the defendant's choice. See People v. Blehm, 983 P.2d 779, 794 (Colo. 1999). As a matter of federal constitutional law, the trial court does not have a duty to advise a defendant about the right to testify. See Gonzales v. Elo, 233 F.3d 348, 357 (6th cir. 2000) (waiver is presumed from the defendant's failure to testify or notify the trial court of the desire to do so); Untied States v. Pino-Noriega, 189 F.3d 1089, 1094-1095 (9th Cir. 1999) (The district court has no duty to
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affirmatively inform defendants of their rights to testify, or to inquire whether they wish to exercise that right); United States v. Pennycooke, 65 F.3d 9 (3rd Cir. 1995) (trial court has no duty to explain to a defendant the right to testify or to verify that the defendant's waiver of the right is voluntary). Thus, even if the trial court had completely failed to inquire into the Applicant's decision about testifying, such would not require federal habeas corpus relief. D. Claim Four: Admission of Evidence Regarding a Warrant

The Colorado state courts' evidentiary and procedural rulings may not be questioned unless the Applicant demonstrates that the admission of the evidence was so prejudicial in the context of the proceedings as a whole that he was deprived of the fundamental fairness essential to the concept of due process. See Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir. 1979). During the trial, statements of the prosecution and testimony of witnesses indicated that the Applicant had been arrested and a search performed pursuant to warrants issued upon a finding of probable cause. The defense objected to the statements and the admission of such evidence and moved for a mistrial. The trial court overruled the objections and denied the mistrial motions, finding that the jury was not apprised ­ by the statements or testimony ­ of the existence of other
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charges, that the evidence was relevant to show the history of the arrest, and that by proper instructions as to the burden of proof beyond a reasonable doubt, the jury would not be confused or misled by any earlier references to probable cause. The Applicant asserted on appeal in Turley, (Colo. App. No. 90CA1542), slip op. 1-2, that the trial court should not have admitted into evidence these references to arrest and search warrants issued on unrelated charges, alleging that they were irrelevant, misleading, and highly prejudicial to the defense. The Colorado Court of Appeals in Turley, (Colo. App. No. 90CA1542), slip op. 1-2, concluded that the evidence was properly admitted. The State court found that most of the evidence presented was procedural background and additionally was relevant to show the chain of events leading to the apprehension of the Applicant. Moreover, the State court of appeals found that the references did not necessarily imply the existence of other charges. In light of the instructions given to the jury on the appropriate burden of proof of beyond a reasonable doubt, the State court concluded that the references to a judge's or police officer's assessment of probable cause were so prejudicial or misleading as to warrant reversal.

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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. E. Claim Five: Prosecutorial Misconduct

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. F. Claim Six: Unconstitutionally Obtained Prior Convictions

The Applicant is barred from bringing this claim regarding his 1979 conviction on habeas review for the reasons stated above. The Applicant maintains that his 1981 Denver County conviction and his 1982 Arapahoe County conviction that formed the basis for the habitual criminal charges were constitutionally infirm. A prior conviction obtained in a constitutionally invalid manner cannot be used against an accused in a subsequent criminal proceeding to support guilt or to increase punishment. E.g., Loper v. Beto, 405 U.S. 473, 481, 92 S.Ct. 1014, 1018, 31 L.Ed.2d 374 (1972); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Due process of law requires that in order to provide the basis for a

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judgment of conviction, a guilty plea must be made voluntarily. Henderson v. Morgan, 426 U.S. 637, 96 S.CT. 2253, 49 L.Ed.2d 108 (1976). In Turley, 870 P.2d at 503-506, the Applicant argued that his 1981 Denver County conviction for first degree sexual assault is constitutionally infirm because the trial court failed to explain adequately the consequences of pleading guilty, specifically alleging that he was not advised of a mandatory one year period of parole. The Colorado Court of Appeals found that the record of the advisement reflected that the Applicant stipulated to a sentence in the lower end of the aggravated range for a class three felony and received a sentence of eight years and one month. The trial court advised the Applicant that he would be sentenced in excess of eight years. Defense counsel requested immediate sentencing, and after the sentence was imposed and in the presence of the Applicant, counsel verified with the trial court that the sentence would also include one year of parole. Under these circumstances, the State court concluded that the record as a whole adequately reflects that the conviction was constitutionally obtained. The defense made no objection at the time to the one-year period of parole, and it appears that the Applicant was adequately advised of the direct consequences of
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pleading guilty. Defense counsel's statement regarding the one-year period of parole supports the presumption that the applicable sentence was explained to the defendant by his attorney. The State court concluded the trial court correctly found that this was a valid conviction. In the same case, the Applicant also argued that his 1981 Denver County conviction for first degree sexual assault and his 1982 Arapahoe County conviction for first degree sexual assault are invalid because he was not advised of the possibility of sex offender sentencing under § 16-13-204, C.R.S. (1986). The Colorado Court of Appeals noted that under Colorado law an appellate court will not consider issues not properly raised at trial unless serious prejudicial error was made and justice requires the consideration. Because the issue was not raised in the trial court, it is not properly before the court. Nonetheless, the Court of Appeals stated that, because sentencing under the sex offender act was not contemplated pursuant to the plea agreements, the Applicant received the benefit of the bargain made by him, and he incurred no harm as a result of the claimed inadequacy of the advisement. The State court also found that because the prior felony convictions should not have been suppressed, there was insufficient support to the Applicant's

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assertion that his right to testify was improperly burdened by the failure to suppress those convictions. 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. G. Claim Seven: Improper Habitual Instruction Regarding the Burden of Proof

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. H. Claim Eight: Improper Oral Jury Instructions Regarding Habitual Criminal Charges

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. I. Claim Nine: Severance Regarding Habitual Charges

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. J. Claim Ten: Admission of Hearsay Evidence Regarding Warrants

See Claim Four above. K. Claim Eleven: Other Crimes Evidence Regarding Warrants

See Claim Four above.
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L.

Claim Twelve: Erroneous Complicity Instructions

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. M. Claim Thirteen: Ineffective Assistance of Trial Counsel

The Applicant is barred from bringing his claim of ineffective assistance of trial counsel on grounds that counsel misadvised him regarding the right to testify and failed to move for a mistrial for the reasons stated above. In People v. Turley, (Colo. App. No. 01CA1991), slip op. at 2-5, the Applicant argued that trial counsel was ineffective in failing to adequately investigate and challenge convictions underlying two habitual criminal counts. To prove ineffective assistance of counsel, the Applicant must show that counsel's deficient performance prejudiced his defense in that the result would have been different but for the attorney's errors. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 774 (1984). The Court of Appeals concluded that the Applicant, as a matter of law, could not satisfy the Strickland test with respect to his claim that trial counsel should have investigated and challenged his 1979 and 1981 convictions. People v. Turley, (Colo. App. No. 01CA1991), slip op. at 2-5. Under the Colorado Supreme Court's interpretation and application of § 16-5-402, C.R.S. (2005), 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. 1989). As of July 1, 1989, the Applicant had not yet been charged in the three cases at issue here. Thus, trial counsel cannot be faulted for failing to pursue challenges that, as a matter of law, would be barred by § 16-5-402. In reaching this conclusion, the State Court also 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 argument was rejected in Turley, 18 P.3d at 806. The Colorado Court of Appeals also rejected the Applicant's assertions of conflicted trial counsel excuse 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 State court found that the Applicant had ample opportunity prior to July 1, 1989 to challenge his 1979 and 1981 convictions. 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.

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N.

Claim Fourteen: Cumulative Error

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. IX. STATE COURT RECORD

The Applicant's allegations are exclusively matters of law that can be determined solely form the record in the district court. The state trial court record is on file with the Clerk's Office of the Denver District Court. X. CONCLUSION

For the above stated reasons and authorities, the Respondents ask this court to dismiss with prejudice the application for habeas corpus relief.

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

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CERTIFICATE OF SERVICE This is to certify that on this 7th day of March 2006, I electronically filed the above ANSWER with the Clerk of Court using the CM/ECF system, and I hereby certify that I have mailed the Answer and the state court documents, exhibits to Respondent's Answer, which were submitted in conventional format pursuant to Local Rules of ECF Procedure V.H.6 by placing the same in the United States Mail, first-class postage prepaid, at Denver, Colorado, this 7th day of March 2006 addressed as follows: David Turley Prisoner No. 45921 Limon Correctional Facility 49030 State Highway 71 Limon, CO. 80826 s/Roger G. Billotte______________________

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