Free Response to Habeas Petition - District Court of Colorado - Colorado

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 1 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00789-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

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 2 of 41

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00789-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, in two separate cases (Case Nos. 89CR1651 and 89CR1652) consolidated for trial. In both 89CR1651and

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 3 of 41

89CR1652, the Applicant was convicted of first degree sexual assault, second degree kidnapping, 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, in two separate cases consolidated for trial, was convicted of sexually assaulting two women in Denver and being an habitual criminal. Following his judgments of conviction 89CR1651 and 89CR1652 the Applicant filed direct appeals in the Colorado Court of Appeals. Case No. 89CR1651 was reviewed in 90CA1513, and 89CR1652 was reviewed in 92CA084. The Applicant raised the following claims in 90CA1513: -The trial court abused its discretion by refusing to require the victim

to reveal her current address. -The trial court erred by refusing to allow discovery of the victim's

mental health records and by finding that an insufficient showing had been made to require an in camera review by the trail court of any existing Social Services child abuse records.
2

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 4 of 41

--

The trial court erred when it failed to allow the defense to make a

complete record in support of the request for psychiatric examination of the victim and discovery of the victim's prior mental health history. -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 the substantive case could not be used against him in the habitual criminal proceedings. -The trial court erred in failing to finding 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 in 89CR1651/90CA1513 was affirmed on direct appeal. See People v. Turley, 870 P.2d 498 (Colo. App. 1993). A petition for certiorari was denied on March 21, 1994, and the mandated issued on April 5, 1994. The Applicant raised the following claims in the direct appeal in 92CA0874: -The trial court abused its discretion by refusing to require the victim

to reveal her current address to defense counsel.
3

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 5 of 41

--

The trial court improperly limited the defense's cross-examination of

the victim thereby denying the Applicant his constitutional right to confrontation. -The trial court denied the Applicant's right to a fair trial by granting

the prosecution's motion to consolidate two cases involving the Applicant's alleged sexual assaults on two different women. -The trial court committed reversible error because it failed to comply

with § 16-10-301(3), C.R.S. (1986), which requires a trial court to instruct a jury in regard to similar act or transaction evidence. -testify. -The Applicant's right to testify was improperly and unconstitutionally The trial court did not adequately advise the Applicant of his right to

chilled because of the joinder of the two sexual assault cases. -Under the doctrine of cumulative error, certain instances of

prosecutorial misconduct, combined with other errors asserted in the appeal, mandated reversal of the judgment of conviction. -Prior convictions used to support the habitual criminal charges were

obtained in violation of due process, Colo. Crim. P. 11, and § 16-13-204, C.R.S. (1986).

4

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 6 of 41

--

The Applicant's convictions for both second degree kidnapping and

first degree sexual assault violated the Double Jeopardy clause of the federal constitution. The conviction in 89CR1652/92CA0874 was affirmed on direct appeal. See People v. Turley, (Colo. App. No. 92CA0874, March 24, 1994) (Not Selected for Publication). A petition for certiorari was denied on November 29, 1994, and the mandated issued on December 28, 1994. On December 18, 1996, the Applicant, pro se, filed a motion for postconviction relief pursuant to Colo. Crim. P. 35(c). Counsel was appointed, and on December 23, 1997, filed a consolidated supplement to the motion for postconviction relief. On November 23, 1998, a second supplemental motion was filed. The motions involved the convictions in both 89CR1561 and 89CR1562. The trial court denied relief without a hearing, and the Applicant appealed. The Applicant raised the following claims on appeal in 99CA0036: -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 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
5

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 7 of 41

same consequence as a result of a conviction for a capital offense where the death penalty cannot or will not be imposed. -The trial court gave an improper advisement to the Applicant

regarding his right to testify. -The Applicant's prior conviction for aggravated motor vehicle theft

was constitutionally invalid as part of the basis for his habitual criminal sentencing. -The trial court violated the Applicant's right to due process by giving

verdict forms that directed a verdict, in effect, as to certain elements of the habitual criminal counts. -The cumulative effect of errors present in his trial warranted relief.

The denial of postconviction relief in 89CR/1651 and 89CR1652 were affirmed on appeal. See People v. Turley, 18 P.3d 802 (Colo. App. 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 convictions in 89CR1651and 89CR1652. This motion also included the Applicant's conviction in

6

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 8 of 41

89CR1827.1 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. The Colorado Court of Appeals affirmed the order of denial. See People v. Turley, (Colo. App. No. 01CA1991, November 6, 2003) (Not Published Pursuant to C.A.R. 35(f)). The Colorado Supreme Court denied a petition for writ of certiorari on March 22, 2004. The mandate issued on March 30, 2004. III. CASE HISTORY: FEDERAL HABEAS PROCEEDINGS

On April 19, 2004, the Applicant filed a federal habeas application regarding his convictions in 89CR1651 and 89CR1652.

1

The conviction in 89CR1827 is the basis for the Mr. Turley's habeas application in 04-cv00790. 7

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 9 of 41

IV. § 2244

TIMELINESS OF THIS APPLICATION UNDER 28 U.S.C.

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). 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 postconviction 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
8

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 10 of 41

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 September 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. March 21, 1994: State conviction in 89CR1651 final pursuant to 28 U.S.C. (d) (1) (A). November 29, 1994: State conviction in 89CR1652 final pursuant to 28 U.S.C. (d) (1) (A). April 25, 1996: § 2244(d) (1) limitations period begins to run. December 18, 1996: Limitations period is tolled due to filing of first Colorado Crim. P. 35(c) action. February 20, 2001: Tolling ends when Colorado Supreme Court denies review of the first Colorado Crim. P. 35(c) action.
9

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 11 of 41

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. V. FEDERAL HABEAS APPLICATION: CLAIMS RAISED

The Applicant's Application raises fifteen claims. The habeas claims are as follows: Claim One: Section 16-10-104(a), C.R.S. (1986) is vague and unconstitutional because it creates a special class of defendant, and thus violated the Applicant's right to due process and equal protection
10

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 12 of 41

Claim Two: The trial court did not properly advise the Applicant of his right to testify during the habitual criminal phase of the trial, and thus denied the Applicant his right to a fair trial. Claim Three: The trial court's admission of evidence that another judge had ruled that there was probable cause in infer the Applicant's guilt in the crime violated the Applicant's right to due process and equal protection. Claim Four: The prosecutor's repeated misconduct in eliciting and commenting on the fact that the Applicant was in custody denied him a fair and impartial trial. Claim Five: The Applicant's sentencing under the Habitual Criminal Statute is illegal because the prior convictions were not obtained constitutionally. Claim Six: The trial court denied the Applicant a fair trial when it failed to give proper jury instructions regarding the elements and standard of proof regarding the habitual criminal charges. Claim Seven: The trial court denied the Applicant a fair trial when it gave oral instructions to the jury that contradicted, in part, the written jury instructions regarding the habitual criminal charges. Claim Eight: The trial court violated the Applicant's rights to due

process and equal protection under the Sixth and Fourteenth Amendments of the
11

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 13 of 41

federal constitution when the trial court failed to sever the Applicant from his codefendant for the trial on the habitual criminal charges. Claim Nine: The admission of certain testimony was hearsay and

improper opinion testimony that violated the Applicant's right to due process and equal protection. Claim Ten: The admission of testimony regarding a warrant violated the Applicant's rights under the Fifth, Sixth, and Fourteenth Amendments of the federal constitution. Claim Eleven: The use of an improper complicity instruction to the jury lowered the burden and standard of proof required of the prosecution and violated the Applicant's rights to due process and equal protection. Claim Twelve: Trial counsel's ineffectiveness violated the Applicant's rights to due process and equal protection under the Sixth Amendment of the federal constitution. Claim Thirteen: The seriousness of numerous errors denied the Applicant a fair trial. Claim Fourteen: The prosecution's refusal to disclose the current address of the victim to defense counsel prejudiced the defense's ability to investigate the

12

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 14 of 41

case and discover exculpatory evidence, thus violating the Applicant's rights to due process and equal protection. Claim Fifteen: The joinder of the cases severely prejudiced the Applicant and constituted an improper infringement on his constitutional rights. 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 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,
13

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 15 of 41

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 unexhausted claims procedurally barred, and address only the properly exhausted claims. Id.

14

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 16 of 41

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: Improper Advisement of the Right to Testify

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 does not appear to have raised this issue in regard to his convictions in 89CR1561 and 89CR1562. The issue was raised in regard to his conviction in 89CR1827, which is the basis for his companion habeas applicant in 04-cv-00790. Because the Applicant did not raise this claim in regard to the convictions that form the basis of this habeas application, he has procedurally defaulted on this claim for the purpose of federal habeas review. D. Claim Four: Prosecutorial Misconduct

The Applicant does not appear to have raised this issue in regard to his convictions in 89CR1561 and 89CR1562. The issue was raised in regard to his conviction in 89CR1827, which is the basis for his companion habeas applicant in 04-cv-00790.
15

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 17 of 41

Because the Applicant did not raise this claim in regard to the convictions that form the basis of this habeas application, he has procedurally defaulted on this claim for the purpose of federal habeas review. E. Claim Five: Unconstitutionally Obtained Prior Convictions

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. F. Claim Six: Improper Habitual Instruction

Undersigned counsel cannot determine from the available record the extent to which the Applicant exhausted this claim in the State courts. Therefore, counsel will address the claim as part of the argument in Claim Seven. G. Claim Seven: Improper Oral Jury Instructions Regarding Habitual Criminal Charges

The Applicant raised this claim in his first State postconviction motion and has exhausted his state remedies.
16

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 18 of 41

H.

Claim Eight. Severance

In his Application, the Applicant claims that his right to equal protection and due process were violated because the court would not sever the Applicant's and co-defendant's trials in regard to the habitual criminal counts. The Applicant does not appear to have raised the precise issue in the State courts. He did raise the issue of severance with regard to his co-defendant as to the trial on the substantive counts. To the extent that the Applicant is raising the claim of severance regarding the habitual counts he has procedurally defaulted on this claim for the purpose of federal habeas review. To the extent that he is arguing the claim that he did raise on direct appeal in 92CA874, the Applicant has exhausted his state remedies. I. Claim Nine. Admission of Hearsay Evidence Regarding Warrants

The Applicant does not appear to have raised this issue in regard to his convictions in 89CR1561 and 89CR1562. Because the Applicant did not raise this claim in regard to the convictions that form the basis of this habeas application, he has procedurally defaulted on this claim for the purpose of federal habeas review. J. Claim Ten. Other Crimes Evidence Regarding Warrants
17

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 19 of 41

The Applicant does not appear to have raised this issue on appeal in regard to his convictions in 89CR1561 and 89CR1562. Because the Applicant did not raise this claim in regard to the convictions that form the basis of this habeas application, he has procedurally defaulted on this claim for the purpose of federal habeas review. K. Erroneous Complicity Instructions

The Applicant does not appear to have raised this issue on appeal in regard to his convictions in 89CR1561 and 89CR1562 Because the Applicant did not raise this claim in regard to the convictions that form the basis of this habeas application, he has procedurally defaulted on this claim for the purpose of federal habeas review. L. 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 89CR1561 and
18

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 20 of 41

89CR1562. Because the Applicant did not raise this claim he has procedurally defaulted on this claim for the purpose of federal habeas review. M. Cumulative Error.

The Applicant raised this issue in the State courts had has exhausted his State remedies. N. Failure to Disclose Victim's Address

The Applicant raised this issue in the State courts had has exhausted his State remedies. O. Consolidation of cases

The Applicant raised this issue in the State courts had has exhausted his State remedies. 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
19

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 21 of 41

"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" 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
20

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 22 of 41

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). 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
21

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 23 of 41

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...." 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
22

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 24 of 41

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 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 appeal 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.

23

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 25 of 41

However, the Court of Appeals concluded that, even if that is true, the Colorado General Assembly's classification was not irrational. 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 appeal 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.
24

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 26 of 41

B.

Claim Two: 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
25

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 27 of 41

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. 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. C. Claim Three: Admission of Evidence Regarding a Warrant

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. D. Claim Four: Prosecutorial Misconduct

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

The Applicant is barred from bringing this claim regarding his 1979 conviction on habeas review for the reasons stated above.
26

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 28 of 41

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 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
27

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 29 of 41

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 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

28

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 30 of 41

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 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. F. Claim Six: Improper Habitual Instruction Regarding the Burden of Proof This claim will be addressed in the argument regarding Claim Seven.

G.

Claim Seven: Improper Oral Jury Instructions Regarding Habitual Criminal Charges

29

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 31 of 41

In Turley, 18 P.3d at 806-807, the Applicant argued that his right to due process was violated when the verdict forms given to the jury directed a verdict, in effect, as to certain elements of the habitual criminal counts. A jury instruction, even if erroneous, is not constitutionally defective "unless the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constitutional sense or is otherwise constitutionally objectionable as, for example, by transgressing the constitutionally rooted presumption of innocence." Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979) (citations omitted). To be adjudicated an habitual criminal under § 16-13-101(2), C.R.S. (1986), as relevant here, the prosecution was required to show that Applicant had been convicted of three previous separate felonies. The Applicant conceded that the jury was properly instructed as to these elements for each of the three prior felony convictions alleged. The three verdict forms, which are identical for purposes of the issue raised by defendant, state, in pertinent part:

30

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 32 of 41

"We, the jury find the defendant, DAVID ALLEN TURLEY, IS the same and identical person who has [sic] previously convicted of a felony ... as alleged ... in the Information." (emphasis in original). The other alternative on each form is identically worded except that "IS NOT" is substituted for "IS ". The Applicant argues that the verdict forms required the jury to determine only whether defendant is the same person who was allegedly convicted in the prior proceedings, and that each form would therefore permit an habitual criminal finding even if the prosecution had failed to prove an actual conviction in each instance. The Colorado Court of Appeals found that the jury was instructed, as to each habitual criminal count, that the prosecution was required to prove, inter alia, that the Applicant had previously been convicted of an identified separate felony. The Applicant asserted that the purported error is structural in nature and, thus, requires postconviction relief whenever it arises. The State court found that in light of the correct instructions to the jury outlining all of the elements necessary to an habitual criminal finding, it was not
31

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 33 of 41

persuaded that the verdict forms were in any way inadequate. The instructions and the verdict forms, taken together, properly informed the jury of each and every necessary element, and the verdict forms were not confusing as to what verdict would be rendered by selecting each alternative. The trial court instructed the jury that it was to follow the instructions to reach a decision, and then to indicate that decision on the verdict forms by signing one of the two alternatives. The Colorado Court of Appeals found that because the jury was correctly instructed as to the elements necessary to a finding that defendant was an habitual criminal, and since those instructions govern the jury's decision that is then merely expressed upon the verdict forms, there was no error. 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. H. Claim Eight: Severance Regarding Habitual Charges

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

32

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 34 of 41

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

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. K. Erroneous Complicity Instructions

The Applicant is barred from bringing this claim on habeas review for the reasons stated above. L. 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).
33

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 35 of 41

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 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.

34

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 36 of 41

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. M. Cumulative Error

The Applicant argues that the accumulation of all trial errors deprived him of his rights to due process and fundamental fairness, entitling him to relief. The Tenth Circuit Court of Appeals has repeatedly held that cumulative error analysis is applicable only where there are two or more actual errors. Workman v. Mullin, 342 F.3d 1100, 1116 (10th Cir. 2003). Cumulative impact of non-errors is not part of the analysis. Le v. Mullin, 311 F.3d 1002, 1023 (10th Cir. 2003) (citing United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990). Because each of the applicant's claims do not warrant relief, there is no basis for a cumulative error analysis. The Applicant is not entitled to relief on this ground. N. Failure to Disclose the Victim's Address

In People v. Turley, 870 P.2d at 500-501 and People v. Turley, (Colo. App. No. 92CA0874), slip op. at 1-3, the Applicant argued that he was unfairly
35

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 37 of 41

prejudiced by the trial court's refusal to require the victims to reveal their current addresses. The general rule requiring disclosure of the address of a witness is subject to an exception which precludes those inquiries which tend to endanger the personal safety of the witness. See Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968). In Turley, 870 P.2 at 500-501, the Colorado Court of Appeals found that during the direct examination at a pretrial motions hearing, the victim refused to divulge to the prosecutor where she currently lived because she stated she was afraid of the perpetrators of the offenses. The trial court, on subsequent occasions, refused to require the victim to reveal her address to the defense. The trial court noted that the victim had been made available to the defense for interview purposes and concluded that it would not force the victim to divulge her address because the assault was a traumatic incident, "and the Court does not believe that [the victim] should be required to make [her] address known." The State court noted that, the record shows unequivocally that the Applicant made multiple express threats against the victim and her family during the course of the criminal episode. Moreover, the record indicates that the

36

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 38 of 41

Applicant knew the victim's prior address and her place of employment. Thus, the incremental value of the victim's most recent address was, at best, limited. The Court of Appeals concluded that the record supports the conclusion that the personal safety exception was applicable here. In Turley, (Colo. App. No. 92CA0874), slip op. 2-3, the Court of Appeals found that during the victim's abduction, the Applicant and his companion forced the victim to disclose details about her family and then threatened to harm the victim and her family if she reported the incident. Further, at the preliminary hearing, the victim testified that she hesitated in reporting the incident for fear of the Applicant's retaliation. The State court also noted that the Applicant knew the victim's address at the time she was sexually assaulted, providing at least one avenue for the defense counsel to pursue discovery of witnesses who knew the victim. The rulings 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. O. Consolidation of Cases

In Turley, (Colo. App. No. 92CA0874), slip op. 4-8, the Applicant argued that his right to a fair trial was violated by the trial court granting the prosecution's
37

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 39 of 41

motion to consolidate to cases involving Applicant's alleged sexual assaults on two different women. In United States v. Lane, 474 U.S. 438, 466 n. 8, 106 S. Ct. 725, 88 L.Ed.2d 814 (1986), the Supreme Court explained that "[i]mproper joinder does not, in itself, violate the Constitution. Rather, misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial." In Turley, (Colo. App. No. 92CA0874), slip op. 4-8, the Colorado Court of Appeals stated that consolidation of sexual assault offenses is permissible when the evidence tending to prove each offense would be admissible in separate trials under a standard identical to the requirements of § 16-10-301, C.R.S. (1986 & 1993 Cum. Supp.) and CRE 404(b). Evidence of prior similar transactions in sexual assault cases is admissible if it is offered for the limited purpose of establishing common plan, scheme, design, identity, modus operandi, motive, guilty knowledge, or intent. To be admissible in Colorado, such evidence must meet the four part test set out in People v. Spoto, 795 P. 2d 1314 (Colo. 1990).

38

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 40 of 41

The State court applied these standards to the particular facts of these cases and concluded that the trial court did not abuse its discretion when it granted the prosecution's motion to consolidate. 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. 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 should be 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.

39

Case 1:04-cv-00789-EWN-CBS

Document 41

Filed 03/06/2006

Page 41 of 41

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 6th 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 6th 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______________________
40