Free Objection to Report and Recommendations - District Court of Colorado - Colorado

Case 1:04-cv-00551-LTB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-551-LTB-CBS STEVEN D. HARRINGTON, Applicant, v.

LARRY REID, Warden, and KEN SALAZAR, Attorney General of the State of Colorado, Respondents.

OBJECTIONS TO MAGISTRATE'S REPORT AND RECOMMENDATION AND REQUEST FOR DE NOVO REVIEW

COMES NOW, the above named Applicant, Steven D. Harrington, hereinafter referred to as "Applicant," by and through his undersigned counsel, and files his timely Objections to the Magistrate's Report and Recommendation as well as requesting De Novo review by the District Court of all pleading submitted. See generally, 28 U.S.C. Section 636(b)(1); Fed.R.Civ.P. 72(b); In re Greigo, 64 F.3d 580, 583 (10 Cir. 1995). The Applicant objects to the Magistrate's findings and files his specific objections to the Report and Recommendation issued by the United States Magistrate. therefore the Applicant would state the following: I. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth and Fourteenth Amendments due to the state trial court's failure to sever Harrington from that of his co-defendant Davis. As grounds
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In this case, there was extreme prejudice by having the Applicant tried jointly with codefendant Davis and this prejudice could not be overcome by the curative instructions provided. Contrary to the Magistrates' findings, the Applicant has asserted sufficient prejudice as indicated by opposing counsel accusing the Applicant of committing the offenses while claiming his client's innocence. This statement, which was not overcome by a curative instruction, was overwhelmingly prejudicial against the Applicant. Here, prejudice must be assumed by the verdict since no other logical basis would exist to demonstrate prejudice at the conclusion of the trial. The defenses were antagonistic and the request for an evidentiary hearing as outlined in Issue X below would have allowed the Applicant the opportunity to substantiate his claim. The Magistrate's findings are inconsistent with the facts of this case and fail to evaluate the level of prejudice that occurred. II. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth and Fourteenth Amendments due to the state trial court's ruling to permit a Denver Police Sgt. To testify as an expert in gang activity.

Although the Magistrate properly identifies the correct inquiry as "whether the admission of the challenged evidence rendered the proceeding fundamentally unfair," referring to the introduction of gang evidence, his conclusion is misplaced. Thornburg v. Mullin, 422 F.3d 1113, 1129 (10th Cir. 2005); See Magistrate's Report, page 12. The

prejudicial affect of introducing gang related evidence, given the backdrop of gang hysteria in Denver County during the same period, was damaging to Applicant's case. The state courts and the Magistrate assumes improperly that the jurors were able to distinguish between gang evidence as it relates to identify versus gang evidence as implicating the Applicant as the perpetrator of the crimes. By having the constant

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introduction of gang related evidence, the trial became fundamentally unfair which indeed was a denial of a constitutional right which the Magistrate has ignored. III. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth and Fourteenth Amendments due to the state trial court permitting the introduction of highly prejudicial gang related evidence.

The Applicant incorporates the same objections to this issue as presented in Issue II. IV. The Applicant objects to the Magistrate's findings that he was not denied his equal protection rights pursuant to the Fifth and Fourteenth Amendments as a result of the state's discriminatory exercise of its peremptory challenges.

The Magistrate has held that the state court applied the "proper framework of the Batson test and did not err in concluding that the totality of the circumstances failed to establish a denial of equal protection." Magistrate Report, page 19. Here, the

explanations provided by the state were illogical given the totality of the circumstances. The Magistrate's analysis did not specifically focus on the requirements of Puckett v. Elm, 514 U.S. 765 (1995) which would have led to a different conclusion. In this instance, the state trial court automatically accepted the race-neutral explanations as legitimate reasons without conducting further inquires as to the "racial motives of the attorney." This type of inquiry was not conducted at the state level and the Magistrate's findings do not reflect a review of the "racial motives" of the prosecutor consistent with the requirements of Puckett.. Such an inquiry would entailed a greater level of scrutiny of the prosecutor as well as his specific motives for excluding jurors. V. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth, and Fourteenth Amendments due to jury misconduct.

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Here, the misconduct of the jurors had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Multiple instances of jury misconduct occurred as outlined in the Magistrate's Report, pages 21-22. The Magistrate's analysis rests on the premise that as long as the state trial court conducted a hearing after each incident of misconduct, no prejudice could have inured. The Magistrate misses the critical argument that in each instance of misconduct, members of the jury panel were seeking information outside the scope of the trial which is impermissible under Colorado law. Wiser v. People, 732 P.2d 1139 (Colo. 1987). The Magistrate's findings fail to properly evaluate the injurious nature of jurors seeking information outside the scope of the trial. Arguably, if there existed one isolated instance of juror misconduct, the affect would have been insignificant. Instead, there were multiple instances of misconduct that taken in their totality compromised the proceedings. Thus, it was an abuse of discretion for the court to deny the Applicant's motion for a mistrial. The Magistrate has reached a conclusion contrary to the facts of this case. VI. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth, Fourteenth Amendments as a result of the state trial court admitting eyewitness identification of him.

Here, the identification process was impermissibly suggestive. Applicant requested the opportunity to "present the testimony of the eyewitnesses on the issue of the totality of the circumstances and the reliability of the identification." (Trial transcript vol.

10:121, et seq.). Without presenting such evidence, the identification process became constitutionally defective. The Magistrate's Report fails to address Applicant's request made through his trial counsel regarding the introduction of eyewitness testimony and the

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subsequent denial of his right of effective cross-examination of these witnesses in violation of Applicant's Sixth Amendment rights to the U.S. Constitution. By overlooking this critical component of the Applicant's argument, the Magistrate has ignored the import of allowing effective cross-examination during pretrial proceedings. By not permitting defense counsel the right to present evidence addressing the "totality of circumstance" test regarding the reliability of the identification process, the Applicant has been denied a critical right in these proceedings. The Magistrate's ruling remains void of any discussion regarding the Sixth Amendment implications. Thus, the Magistrate's findings remain misplaced and the record does not support the trial court's ruling. Moreover, without considering the Sixth Amendment claim, the state court's decision as well as the Magistrate's findings on the identification claim are not "consistent with Supreme Court precedent and are based on an unreasonable determination of the facts in light of the evidence." Magistrate's Report, page 26. VII. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth, Fourteenth Amendments due to the state's suppression of material evidence pursuant to the Brady doctrine.

The discovery of the gun, which had been in the possession of the co-defendant's brother Rodney Lewis, was a significant piece of evidence suppressed by the state until the conclusion of the trial. Contrary to the Magistrate's ruling, the Brady argument does not limit itself as to whether a "retrial using the newly discovered evidence would probably produce an acquittal." A Brady analysis also includes a review as to whether a defendant is denied a fair trial when the evidence is withheld from the defense. Colorado Court of Appeal's decision, page 11; Magistrate's report, page 28. Here, defense counsel was prevented from conducting any examination regarding the discovery of the

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weapon in the presence of the jury to further the Applicant's defense. The Magistrate ignores the standard of review that he has applied to other issues presented. Magistrate report, page 12. Specifically, whether the discovery of the murder weapon and its

implications "rendered the trial so fundamentally unfair that a denial of a constitutional rights results." Mayes v. Gibson, 210 F.3d 1284, 1293 (10th Cir. 2000). The discovery of the murder weapon at the conclusion of the trial does indeed render the trial unfair and the Applicant's due process rights have been violated. The Magistrate's report fails to address this critical standard and thus is inconsistent with applicable law. VIII. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth and Fourteenth Amendments as a result of the state trial court allowing a physician to testify as an expert outside of his defined area of expertise. The state court permitted the improper introduction of a surgeon's testimony to matters outside the scope of his expertise. The doctor served to buttress the assertion that the victim would make truthful statements following her injuries thereby identifying the Applicant. Here, contrary to the Magistrates' findings, the introduction of this key witness, supporting the veracity of the victim's testimony, rendered the trial fundamentally unfair. This was not merely a matter of an abuse of discretion by the state courts, but a clear denial of a fundamental right of the Applicant. But for the victim, no other eyewitnesses could establish the predicate that the Applicant committed the offenses. Thus, the Magistrate's findings were inconsistent with the notions of

fundamental fairness. IX. The Applicant objects to the Magistrate's findings that he was not denied his right to effective assistance of counsel during trial and during postconviction proceedings in violation of the Sixth Amendment to the United States Constitution.

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Without conducting an evidentiary hearing or permitting discovery as requested, the Magistrate Judge has held that the Applicant has failed to demonstrate prejudice as a result of the allegations surrounding counsel's substandard performance. Strickland v. Washington, 466 U.S. 668 (1984). Contrary to the Magistrate's findings, the state court failed to permit the Applicant a full and fair hearing of his claims which would allow him the opportunity to demonstrate "cause and prejudice" in the context of each issue asserted above which the Court may find has not been adequately exhausted. United States v. Frady, 456 U.S. 152 (1982). Applicant has asserted numerous instances of former

counsel's substandard performance in his pleadings and such "allegations, if true and not contravened by the existing factual record, would entitle him to habeas relief." Cannon v. Mullin, 383 F.3d 1152, 1175 (10th Cir 2004); See also Amended Memorandum of law, page 35. The Magistrate has ignored these factual allegations in holding that an

evidentiary hearing is not required to permit the Applicant the opportunity to substantiate his claims. X. The Applicant objects to the Magistrate's findings that he was not denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth, Fourteenth Amendments due to the state court's failure to provide for an evidentiary hearing during Applicant's Rule 35(c) proceedings.

The Applicant has requested an evidentiary hearing to demonstrate that the omissions by counsel were not strategy choices and the degree of prejudice suffered as a result of these errors. No evidentiary hearing was ever provided for in the state court system to address the Applicant' claims that his former counsel was ineffective. At an evidentiary hearing, the Applicant will establish the existence of the critical omissions by defense counsel and that his conduct was below the standard of professional competence for lawyers practicing in the State Court of Colorado. The Magistrate has ignored

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Applicant's factual and legal basis justifying an evidentiary hearing. Report, page 32-33.

Magistrate's

The Magistrate cites the case of People v. Simpson, 69 P.3d 79, 81 (Colo. 2003) as standing for the proposition that in order "to warrant a hearing, a defendant need only assert facts that, if true, would provide a basis for relief." The Applicant did indeed "allege adequate grounds for relief" in his two Crim.P.35(c) petitions. See Magistrate's Report, items (1)-(9), pages 32-33. Clearly, the state court believed that counsel was necessary to facilitate the presentation of the Applicant's claims and thus appointed him to pursue these matters in an evidentiary hearing. Once counsel withdrew, the Applicant relied on the state court to continue its obligation in assuring that counsel would be provided. Indeed, the state court created an expectation of effective representation by its initial appointment. Contrary to the Magistrate's findings, once the state court created the expectation of counsel, a right to continued representation existed and thus a "limited statutory right" was created. See generally, People v. Hickey, 914 P.2d 377, 378 (Colo. App. 1995). Here, had the state court not appointed counsel, no expectation of continued representation would have existed. The Magistrate asserts the proposition that "there is no federal constitutional right to assistance of counsel in postconviction proceedings." Magistrate's Report, page 38. This proposition is inconsistent with a right first

recognized by the state court by its initial appointment of counsel and then its subsequent refusal to appoint new counsel. These facts were overlooked by the Magistrate and the Applicant was therefore unable to substantiate the prejudice that occurred.

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Finally, without the benefit of reappointed counsel, Applicant is left with his only remaining option of seeking that hearing in federal court that he never received in state court. This is not a case of revisiting a previous evidentiary hearing, but permitting a hearing not previously allowed "to advance Applicant's claims." Campbell v. Vaughn, 209 F.3d 280, 286-87 (3rd Cir. 2000). As asserted in Applicant's ninth claim, he would advance his argument that his former attorneys were ineffective and these facts were delineated in Applicant's Amended Memorandum of law, pages 34-43. The Magistrate's conclusion that a hearing is not necessary is contrary to the notions of fundamental fairness required by the due process clause of both the Fifth and Fourteenth Amendments to the United States Constitution. CONCLUSION The Applicant respectfully requests that the District Court review the entire record, including the objections contained herein, and reverse the Magistrate Judge's Report and Recommendation and grant the relief as requested.

Respectfully submitted,

s/ Robert G. Levitt Robert G. Levitt, Esq. Counsel for Applicant Colorado Reg. 24252 th 600 17 Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 Email: [email protected]

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10 day of November, 2005, a true and correct copy of the foregoing Objections to Magistrate's Report and Recommendation
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and Request for De Novo Review was deposited in the U.S. Mail, postage prepaid,
and sent to the following: Paul Koehler, Esq. Assistant Attorney General Office of the Attorney General 1525 Sherman Street, 5 th Floor Denver, Colorado 80203

s/ Robert G. Levitt___ Robert G. Levitt, Esq.

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