Free Answer to Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:04-CV-00551-LTB-CBS STEVEN D. HARRINGTON, Applicant, v. LARRY REID, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. SUPPLEMENT TO ANSWER TO APPLICATION FOR A WRIT OF HABEAS CORPUS Applicant Steven Harrington has filed his "Amended Memorandum Of Law In Support Of Applicant's Writ Of Habeas Corpus Petition Pursuant To 28 U.S.C. Section 2254." In it, Harrington raises two claims not raised in his application for writ of habeas corpus. He also request a habeas evidentiary hearing and discovery. This supplemental answer responds to those new claims and the hearing/discovery request. The respondents' original answer to Harrington's other claims continues to present their position on them.

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Additional Relevant Procedural History. After the Colorado Court of Appeals affirmed Harrington's conviction on direct appeal, People v. Harrington, No. 942CA1602 (Colo. App. May 15, 1997) (not selected for publication), Harrington filed, pursuant to Colo.R.Crim.P. 35(c), motions for postconviction relief, claiming that his trial counsel had been ineffective (v. 1, pp. 14-21, 23-30).1 Harrington's ineffectiveness allegations had several subcomplaints. First, he claimed that his "counsel failed to make proper discovery and did not investigate the case to find witnesses and evidence that would have proven defendant's innocence" (v. 1, p. 15). Harrington did not provide any information as to what discovery should have been requested, nor did he indicate the nature of the investigation that should have been conducted. Second, Harrington claimed that his counsel failed to subpoena two witnesses in support of his alibi defense (v. 1, p. 15). He did not specify the nature of their hoped-for testimony.

All citations to the record are taken from the answer brief filed in Harrington's last state court appeal, People v. Harrington, 01CA1800. Copies of all briefs, the opinion, petition for writ of certiorari, and order denying the petition for writ of certiorari are attached.
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Third, Harrington alleged that his "counsel failed to properly question the State's witnesses," in particular Mrs. Hollar and the other eyewitnesses (v. 1, p. 15). Harrington, though, did no specify in what way his counsel should have examined those witnesses, or what questions they should have been asked. Fourth, Harrington charged that his "counsel failed to subpoena witnesses and evidence that would have shown that the defendant is innocent of the crime charged" (v. 1, p. 16). Harrington did not, though, identify whom those witnesses should have been, the nature of the evidence that supposedly should have been introduced from them, or their availability to testify at his trial. Fifth, Harrington alleged that his counsel should have "request[ed] some form of protection for unsequestered jurors exposed to a media frenzy of untruths" (v. 1, p. 16). Harrington did not identify the "untruths" or the nature of the "media frenzy" from which the jurors should have been sequestered nor claim that the jurors ignored their oaths to ignore media coverage. Sixth, Harrington again reiterated that "counsel failed to present any competent, or logical support defen[s]e to defendant's alibi defen[s]e" and further complained that counsel "strongly advised defendant against taking the stand" (v. 1, p. 16). Harrington did not identify what "competent" evidence his trial counsel should have presented, did not claim that the trial court gave him an inadequate
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advisement of his right to testify, pursuant to People v. Curtis, 681 P.2d 504 (Colo. 1984),2 and did not allege that his counsel coerced him into not testifying. Harrington further failed to allege what the contents of his testimony would have been or how that unspecified testimony would have affected the result of his trial. Seventh, Harrington claimed that "counsel failed to adequately prepare for trial period, and made numerous failings at and during the trial, including a failure to object, disclosure of client's confidences and many more reversible errors" (v. 1, p. 16). Harrington did not specify how counsel should have prepared for trial, detail the questions to which he believed his counsel should have objected, identify the legal basis for such objections, delineate the confidences violated or the harm thereby caused, or enumerate what other "reversible" errors led to his conviction. Finally, Harrington claimed that his "counsel failed to visit and view defendant's place of residence and place the defendant was at during the night in question" (v. 1, p. 25). Harrington did not allege with particularity how such a visit would have improved his defense or changed the result of his trial.

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In Curtis, the court devised a procedure using an on-the-record advisement concerning the defendant's right to testify, to ensure that the defendant personally made that decision in a knowing, voluntary, and intelligent manner.
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The trial court summarily denied Harrington's motions for "fail[ing] to state a claim for relief on [their] face" (v. 1, p. 70). On appeal, the Colorado Court of Appeals reversed the trial court's order, holding that it failed to make adequate findings of fact in support of its order, and remanded the case to the trial court to make those findings. See People v. Harrington, No. 99CA1752 (Colo. App. Nov. 30, 2000) (not selected for publication) (copy of opinion attached). On June 26, 2001, the trial court issued those findings of fact (copy of order attached to People's Answer Brief, People v. Harrington, 01CA1800). It found in particular that: (1) Harrington made only "unsubstantiated, general, conclusory allegations" in support of his motion; and (2) even if his trial counsel had been deficient, Harrington had made no showing that there was a reasonable probability that the result of the proceeding would have been different (id. at p. 2, ¶¶10 & 11). The Colorado Court of Appeals affirmed. People v. Harrington, 01CA1800 (Colo. App. June 12, 2003) (not published). In doing so, it recognized that Strickland v. Washington, 466 U.S. 668 (1984), provided the controlling legal standards for addressing an ineffective assistance of counsel claim. The court then held that Harrington failed to "assert facts that, if true, would provide a basis for relief." Id. at p. 2. The court wrote:
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[D]efendant provided no particulars regarding the failed discovery or investigation. Although he named two witnesses who he alleged should have been subpoenaed, he did not indicate what their testimony would have been. Nor did he provide the names, availability, or proposed testimony of any other witnesses who he alleged, again with no specificity, would have been helpful to his defense. Although defendant alleged that he had an "alibi," he proffered no specific information that could have been obtained in support of that defense. Similarly, defendant's assertion that his attorney's failure to visit his home and whereabouts on the night of the crime was vague and completely unsubstantiated. Id. at p. 4. The court of appeals further held that his allegation that his counsel told him not to testify failed because, even if true, he received a thorough Curtis advisement. Id. The court of appeals also held that the record showed that the trial court instructed the jury not to obtain any information about the case from the media, and that Harrington had provided nothing to indicate that any juror had violated that order. Id. at 4-5. Finally, the court of appeals held, "it is apparent from the record that the evidence against defendant was compelling and that there was no reasonable probability that deficient conduct by counsel, if any, could have altered the outcome in this case." Id. at 5.

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ARGUMENT Harrington complains that the trial court and court of appeals violated his rights under the United States Constitution by determining that the allegations he made in his state postconviction motions alleging that his trial counsel had been ineffective were conclusory and unsupported by facts. He also claims entitlement to an evidentiary hearing. A. Harrington exhausted his ineffective assistance of counsel claim but his right to a hearing claim is subject to the procedural bar rule.

Harrington has exhausted his claim that his trial counsel was ineffective because Colorado uses the Strickland standard and Harrington mentioned Strickland in his various postconviction and appellate court pleadings. However, in making his claim that he should have been given a hearing on his ineffective assistance of counsel allegations, Harrington did not base his claim on the United States Constitution. Instead, he asserted that the postconviction court's decision to deny his motion without ordering a hearing as an issue of state law only (see People v. Harrington, 01CA1800, Appellant's Opening Brief, pp. 3-5, 7-8). In his petition for writ of certiorari to the Colorado Supreme Court, Harrington only claimed that he had satisfied the requirements of Crim.P. 35(c) in presenting his claim; he did claim that the postconviction court violated his rights under the
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United States Constitution (see People v. Harrington, 01CA1800, Petition for Writ of Certiorari, pp. 2-3). Harrington has thus failed to exhaust his claim that his federal constitutional rights by the state courts' decisions that he had failed to demonstrate that he was entitled to a state postconviction hearing. See Duncan v. Henry, 513 U.S. 364, 366 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Moreover, since Harrington has already litigated a direct appeal and a postconviction attack on his convictions, and Colorado law provides no further means for launching yet additional attacks, he would be procedurally barred from raising this claim in the future. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (Colorado law bars defendants from launching collateral attacks based on constitutionalized versions of claims that were presented on direct appeal as issues of state law); People v. Bastardo, 646 P.2d 382, 383 (Colo. 1982) (same). Nowhere in his habeas application concerning any of his claims has Harrington alleged grounds supporting the "cause or prejudice" or "fundamental miscarriage of justice" requirements for avoiding the procedural bar rule. Harrington's procedural claim is therefore not available for review in habeas. See Coleman v. Thompson, 501 U.S. 722, 734 n.1, 750 (1991).

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B.

Harrington failed to make adequate allegations of fact in support of his ineffective assistance of counsel complaints.

To establish that he was denied the effective assistance of counsel, a defendant bears the burden of demonstrating that: (1) his counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for that performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 687-91, 692, 696. To do that, the defendant first bears the burden of making specific, nonspeculative allegations in support of his ineffectiveness claims; allegations that are speculative, vague, conclusory, or not supported by details are inadequate and may be dismissed summarily. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995); United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994); United States v. Mealy, 851 F.2d 890, 908 (7th Cir. 1985); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (a defendant's "presentation of conclusory allegations unsupported by specifics is subject to summary dismissal"); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (even pro se defendants must allege sufficient facts on which a recognized legal claim can be based, and conclusory allegations do not suffice). Here, Harrington failed to make adequate allegations in his postconviction motions in support of his claim that his trial counsel had been ineffective. His best
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allegation, that his counsel should have subpoenaed witnesses that he identified name, lacks particulars as to what their testimony would have been. Consequently, he provided no allegations as to how their testimony could have changed the result of his trial. See Demarest v. Price, 130 F.3d 922, 933 n.4 (10th Cir. 1997). Further, he made no showing that those persons would have been available to testify at his trial. See People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994) (when a defendant claims that his counsel was ineffective for not procuring the testimony of witnesses, the defendant must show "who these potential witnesses might be, their willingness to testify (or their amenability to process), and the substance, credibility or admissibility of their testimony."). Finally, as set forth in the respondents' original "Answer to Application for a Writ of Habeas Corpus" (at p. 9, n.3), the witness who testified in support of the alibi defense Harrington presented at trial later pled guilty to perjury for her testimony. Most of the rest of Harrington's allegations--that his counsel should have presented unspecified evidence, called unspecified witnesses, asked unspecified questions on cross-examination, or should have protected the jury from unspecified news media reports--are entirely vague and conclusory. His complaint that his counsel "advised" him not to testify fails because the record shows that the trial court conducted a full Curtis advisement, and Harrington personally chose not to
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testify (v. 18, pp. 254-58). See Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir. 1989). Moreover, the prosecution's case against Harrington was based on overwhelming evidence. In light of that, even if the representation the expert criminal defense attorneys who represented Harrington provided him could have possibly met the Strickland deficient performance standard, there is no reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 697 (defendants must make adequate showings on both parts of the ineffectiveness test or their claim fails). C. Harrington is not entitled to an evidentiary hearing.

Harrington also asks this court to order an evidentiary so that he can try and formulate an evidentiary basis for his ineffectiveness complaints. Section 28 U.S. C. 2254(e)(2) provides: (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-- (A) the claim relies on-- (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
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(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Conclusory allegations by a habeas applicant do not justify the granting of an evidentiary hearing. Bowling v. Parker, 344 F.3d 487, 512 (6th Cir. 3003) ("bald assertions and conclusory allegations do not provide sufficient ground to warrant the state to respond to discovery or to require an evidentiary hearing") (death penalty case); Murphy v. Johnson, 205 F.3d 809, 817 (5th Cir. 2000) (a habeas applicant is not entitled to an evidentiary hearing where his "allegations are merely conclusory allegations unsupported by specifics") (death penalty case). Here, Harrington has made no showing under § 2254(e)(2) justifying the granting of a hearing: he has failed to identify any new rule of constitutional law or a factual predicate that he could not have discovered through the exercise of diligence and he made no showing that he would not have been convicted but for any claimed constitutional error. Further, his failure to plead specific facts in support of his ineffectiveness claims is the reason he did not receive a state

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evidentiary hearing; that failure to properly plead his claims is chargeable to him alone. Bowling, Murphy, supra. Finally, the state court record before this court easily supports the state court findings that Harrington could not meet the Strickland prejudice prong. See Ward v. Williams, 240 F.3d 1238, 1245 (Colo. 2001) (an evidentiary hearing is unnecessary where claim can be resolved on the basis of the state record). The evidence of his guilt was interlocking and overwhelming. It was proved beyond any doubt that Harrington and his constant companion Davis committed the crimes at issue. Consequently, this court should deny Harrington an evidentiary hearing or discovery. Conclusion For these reasons, this court should deny the application for writ of habeas corpus and the motions for an evidentiary hearing and/or discovery.

JOHN W. SUTHERS Attorney General

s/ Paul Koehler PAUL KOEHLER* Assistant Attorney General Criminal Appeals Unit
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Attorneys for Respondents 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-5547 *Counsel of Record CERTIFICATE OF SERVICE I hereby certify that on September 8, 2005, I electronically filed the foregoing SUPPLEMENT TO ANSWER TO APPLICATION FOR A WRIT OF HABEAS CORPUS with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected]. And I hereby certify that I have mailed the SUPPLEMENT TO ANSWER TO APPLICATION FOR A WRIT OF HABEAS CORPUS and STATE COURT DOCUMENTS, EXHIBITS TO RESPONDENTS' SUPPLEMENT TO ANSWER TO APPLICATION FOR A WRIT OF HABEAS CORPUS which were conventionally filed upon all parties herein by depositing copies of the same in the U.S. mail, first-class postage prepaid, at Denver, Colorado, this 8th day of August, 2005, addressed as follows: Robert G. Levitt, Esq. 600 17th Street Suite 2800 South Denver, Colorado 80202

s/ Paul Koehler PAUL KOEHLER* Assistant Attorney General Criminal Appeals Unit Attorneys for Respondents

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1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-5547 *Counsel of Record

AG ALPHA: AG File:

DA XX GYWR-1 harrington AOSC 2004 supp.doc

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