Free Traverse - District Court of Colorado - Colorado

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

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Filed 09/21/2005

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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.

RESPONSE TO RESPONDENT'S SUPPLEMENT TO ANSWER TO APPLICANT'S APPLICATION FOR WRIT OF HABEAS CORPUS

COMES NOW, the above named Applicant, Steven D. Harrington, hereinafter referred to as "Applicant," by and through his undersigned counsel, and files his Response to Respondent's Supplement to Answer to Applicant's Application for Writ of Habeas Corpus. The Applicant states the following: I. Failure of former counsel to pursue Applicant's pro se motion filed pursuant to Colo.R.Crim.P.35(c) is a violation of Applicant's Sixth Amendment Rights. Respondent outlines for the court, as did the Applicant, the substance of his pro se arguments presented during his state court post-conviction proceedings. Applicant's argument involves former counsel's failure to pursue any discernable advocacy on behalf of his client. Specifically, when Douglas Joffe, Esq. was appointed to represent the Applicant, he failed to supplement and expand the Applicant's pro se arguments when required to do so in the context of Applicant's Rule 35 proceeding. As the record

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indicates, when Applicant's Rule 35 motion was remanded by the Court of Appeals, the state trial court had a duty to reappoint new counsel to adequately supplement and detail the substance of Applicant's pro se motion. In fact, the Colorado Court of Appeals reversed the state court's order "holding that it failed to make adequate findings of fact in support of its order, and remand the case to the trial court to make those findings." [Respondent's Supplement to Answer to Applicant for a Writ of Habeas Corpus, page 5]. Thus, the state trial court was provided with a second opportunity to appoint counsel to detail Applicant's pro se pleadings. No such appointment occurred and the state trial court issued a slightly more detailed order which met the requirements of the remand order. Applicant was denied a critical right in these proceedings: the right of counsel to serve as his advocate in pursuing a detailed outline of all ineffective claims. Simply stating that the Colorado Court of Appeals recognized the standard of Strickland v. Washington, 466 U.S. 668 (1984) is inadequate when the basis to bring such claims, through competent counsel, was lacking. Given the failure to appoint counsel to address specific ineffective assistance of counsel claims, the state courts' decisions are contrary to and involve an unreasonable application of federal law as required consistent with Strickland. Id. Here, the Applicant needed the expertise of counsel to address his ineffective claims. This premise serves as the basis in granting Applicant's new request for an evidentiary hearing in order to substantiate his assertions, as outlined in his state post-conviction motion, that former counsel at trial and during the Rule 35 proceedings was ineffective. There would be no other method available to counter the assertion held by the Court of Appeals that the "evidence against defendant was compelling and that there was no reasonable

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probability that deficient conduct by counsel, if any, could have altered the outcome in this case." [Respondent's Supplement to Answer to Applicant for a Writ of Habeas Corpus, page 6]. II. Applicant is entitled to his right to hearing to address his ineffective assistance of counsel claims. Clearly, the Applicant's pro se arguments address his denial of constitutional protected rights under the Sixth Amendment by his referencing Supreme Court law (i.e., Strickland). To place the burden on the Applicant, in his pro se pleadings, that he has to delineate the Sixth Amendment violation with specificity, is unreasonable. In this

instance, the "cause and prejudice" test of United States v. Frady, 456 U.S. 152 (1982). is presumed to be satisfied given former counsel's failure to prepare, file, or argue any issue on behalf of the Applicant relating to his pro se ineffective claims. Undoubtedly, Applicant has been prejudiced by counsel's failure to represent his interests or to facilitate the appointment of new counsel who could have adequately addressed the ineffective claims. This Court remains the venue of last resort thereby permitting the opportunity to substantiate viable ineffective claims in the context of an evidentiary hearing. If required, the Applicant will outline relevant witness testimony and proffer the significance, if any, of their testimony. III. Applicant has made an adequate argument to support his assertion that his counsel was ineffective at trial and during post-conviction proceedings. Without conducting an evidentiary hearing, the state court dismissed the Applicant's pro se claims and did so when counsel was initially appointed. Applicant proffered witnesses in his state court pleadings that he believed would support his position of innocence. The absence of any advocacy by Mr. Joffe in a state post-conviction setting

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has prevented this Applicant from asserting his ineffective assistance of counsel claims. It is the right of effective advocacy in a state post-conviction proceeding which has been denied in this instance and its effect has prevented the Applicant from pursuing his claims of ineffective assistance of trial counsel during state court proceedings. Here, the

Applicant had no forum to establish the deficiency of his trial counsel as provided for in a state Rule 35 setting. IV. Harrington is entitled to an evidentiary hearing. Applicant's factual predicate in requesting discovery and an evidentiary hearing is based on counsel's failure to pursue any claims, when appointed by the state court, as well as the substance of the issues that he did file pro se. Applicant's assertion that he was denied his Sixth Amendment rights as indicated by counsel's failure to pursue any viable argument during Rule 35 proceedings, when required to do so, combined with his pro se allegations of trial counsel's substandard performance serves as a basis to permit a hearing. This Applicant was denied his opportunity to address ineffective assistance of counsel allegations in state court and this procedural outcome should not be replicated in these federal proceedings. IV. Conclusion The Applicant requests that this Court vacate his conviction or grant such other relief as the Applicant may be entitled to receive.

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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]

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21 September, 2005, a true and correct copy of the foregoing Response to Respondent's Supplement to Answer to Applicant's
st

Application for Writ of Habeas Corpus 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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