Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

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

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

AMENDED MEMORANDUM OF LAW IN SUPPORT OF APPLICANT'S WRIT OF HABEAS CORPUS PETITION PURSUANT TO 28 U.S.C. SECTION 2254

COMES NOW, the above named Applicant, Steven D. Harrington, hereinafter referred to as "Applicant," by and through his undersigned counsel, and files his Amended Memorandum of Law in Support of Applicant's Writ of Habeas Corpus Petition Pursuant to 28 U.S.C. Section 2254. References to the state trial record will include the volume and page numbers (i.e., Vol. 7, pages 110-112). In order to avoid repetition, the arguments asserted in Applicant's Direct State Appeal, State Petition for Writ of Certiorari, and Applicant's pro se petition are incorporated herein. I. JURISDICTION Steven D. Harrington (hereinafter referred to as "Applicant") is a state prisoner who was sentenced on August 8, 1994 to a term of life for first degree murder and additional consecutive terms of imprisonment totaling 208 years for the offenses of attempted first degree murder, first degree assault, second degree kidnapping, aggravated robbery, first

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degree aggravated motor vehicle theft and attempted first degree sexual assault by the Honorable Paul Markson, District Court of Denver County, Colorado. The Applicant contends that his conviction and sentence were imposed in violation of the Due Process Clause of the Fifth and Fourteenth Amendments, the effective assistance of counsel guarantee of the Sixth Amendment, and the right to effective cross-examination pursuant to the Sixth Amendment to the United States Constitution. Jurisdiction is conferred upon this Court to entertain these claims under Section 2254 of Title 28 of the United States Code. II. STATEMENT OF THE CASE AND PROCEDURAL BACKGROUND 1. In 1994, a lengthy trial occurred in Denver County in which the Applicant was found guilty of numerous offenses including first degree murder, attempted first degree murder, first degree assault, second degree kidnapping, aggravated robbery, first degree aggravated motor vehicle theft and attempted first degree sexual assault. The Applicant was sentenced to life imprisonment plus 208 years. 2. The Applicant filed a direct appeal with the Colorado Court of Appeals and the Court affirmed his conviction and sentenced on May 15, 1997. The Applicant raised the following issues: (1) The Trial Court made numerous procedural and substantive errors in its handling of Defendant's Batson claims which requires reversal of Harrington's conviction; (2) The Trial Court erred in denying Harrington's Motion to Suppress eyewitness identification testimony; (3) The Trial Court erred in allowing Dr. Weggs, an Oculoplastic Surgeon, to give expert testimony reflecting on the veracity of Christina Hollar's testimony; (4) The Trial Court erred in failing to grant any relief based upon the discovery of the murder weapon while the jury was deliberating; (5) The Trial Court

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erred in allowing highly prejudicial gang-related evidence introduced at trial; (6) The Trial Court erred in qualifying a police offer as an expert in gang-related activities and allowing the officer to opine upon and introduce highly prejudicial and irrelevant gangrelated evidence at trial; (7) The Trial Court erred in failing to sever Harrington's trial from that of the co-defendant; (8) The Trial Court erred in failing to grant a mistrial due to jury misconduct when jurors sought critical extrajudicial information outside of the evidence and in their discussion of testimony and witness credibility prior to jury deliberation; (9) That Harrington was denied a fair trial by being forced to wear jail clothing during proceedings with the jury present; and, (10) The cumulative effect of all of the errors denied Appellant his right to a fair trial. 3. The Colorado Supreme Court denied the Applicant's Petition for Writ of Certiorari on January 12, 1998. The Applicant raised the following issues: (1) Whether the Trial Court erred in the procedures it followed in considering Petitioner's Batson claim and in its ultimate denial of the claim; (2) Whether the Trial Court erred in denying Petitioner's Motion to Suppress eyewitness identification testimony; (3) Whether the Trial Court erred in allowing Dr. Weggs, an oculoplastic surgeon, to give expert testimony reflecting on the veracity of Christina Hollar's testimony; and, (4) Whether the Trial Court erred in failing to grant any relief based upon the discovery of the murder weapon while the jury was deliberating. 4. On August 19, 1998, the Applicant filed a pro se Colorado Crim.P.35(c) motion for post-conviction relief, claiming ineffective assistance of trial counsel. Soon thereafter, the State District Court appointed Douglas Joffe, Esq. as Applicant's post-conviction

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counsel.

Without amending Applicant's motion or requesting a hearing, counsel

withdrew from further representing the Applicant. 5. On August 20, 1999, the Applicant filed a new pro se Rule 35 state motion claiming ineffective assistance of counsel. Without conducting an evidentiary hearing, the State District Court denied Applicant's motion finding that the motion was "denied for failure to state a claim or relief on its face." On appeal, the Colorado Court of Appeals reversed and remanded the case to the State District Court. Again, without conducting an

evidentiary hearing or permitting appointment of new counsel, the State District Court issued its findings that trial counsel had been effective. In a second appeal, the Colorado Court of Appeals affirmed the judgment of the District Court. 6. Applicant now challenges his conviction in his current habeas corpus proceeding filed pursuant to Title 28 U.S.C. Section 2254. 7. No other petition or motion has been filed in this Court attacking the Applicant's conviction or sentence following Applicant's exhaustion of his state remedies. III. ISSUES PRESENTED FOR REVIEW 1. The Applicant was 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. 2. The Applicant was 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 activities.

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3. The Applicant was 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. 4. The Applicant was 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. 5. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to jury misconduct. 6. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments as a result of the state trial court admitting eyewitness identification of him. 7. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to the state's suppression of material evidence pursuant to the Brady doctrine. 8. The Applicant was 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. 9. The Applicant was denied his right to effective assistance of counsel during trial and during post-conviction proceedings in violation of the Sixth Amendment to the United States Constitution. 10. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to the state court's failure to provide for an evidentiary hearing during Applicant's Rule 35(c) proceedings.

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IV. STANDARD OF REVIEW In United States v. Addonizio, 442 U.S. 178, 185 (1975), the Court held that error of law does not provide a basis for collateral attack unless the claimed error constituted a "fundamental defect which inherently results in a complete miscarriage of justice." Therefore, this collateral attack regarding a Brady violation, an equal protection violation pursuant to Batson v. Kentucky, 476 U.S. 79 (1986), and the conduct of former counsel are properly reserved in this forum as "fundamental defects" in the proceeding. The issues presented in this Writ of Habeas Corpus Petition are subject to review by this Court since the issues addressed herein involve fundamental violations of the Applicant's constitutional rights and have not been fully and fairly litigated in the context of any postconviction proceeding in state court. The U.S. Supreme Court has held that post-

conviction relief pursuant to the Federal Writ of Habeas Corpus Act cannot be obtained unless such claims were previously raised on direct appeal or in other related proceedings. See generally, Murray v. Carrier, 477 U.S. 478 (1986). These requirements have been met in this case as indicated in the context of each issue. The Applicant contents that a failure by this Court to consider all issues will result in a miscarriage of justice as predicated in this Court's ruling in United States v. Addonizio, 442 U.S. 178 (1979); United States v. Capua, 656 F.2d 1033, 1037 (5 th Cir. 1981)(standing for the proposition that relief under habeas corpus is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice). In Waley v. Johnston, 316 U.S. 101 (1942), the Court held that a prisoner could attack his conviction on constitutional grounds separate from those issues

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previously raised in appeal. It is now evident that the promulgation of federal habeas corpus law provides a prisoner a separate and potentially last review of all violations existing in the record and the Court should permit a full review of all claims. See generally, Porcaro v. United States, 784 F.2d 38 (1st Cir. 1996); Peavy v. United States, 31 F.3d 1341 (6th Cir. 1994); United States v. Achklen, 47 F.3d 739 (5th Cir. 1995); and, United States v. Amlani, 111 F.3d 705 (9th Cir. 1987). In each of the issues presented, the Applicant asserts that that the state court decision was contrary to or involved an unreasonable application of clearly established federal law or was unreasonable in light of the evidence presented. 28 U.S.C. Section 2254. No findings of fact were made relating to claims of ineffective assistance of counsel due to the State District Court's failure to conduct a post-conviction evidentiary. Rushen v. Spain, 464 U.S. 114 (1983). Clear and convincing evidence has been outlined in each issue and in the Applicant's previous pleadings and thus any perceived procedural burden as set forth by the Respondent has been overcome. V. ISSUES PRESENTED HAVE BEEN EXHAUSTED IN STATE COURT AND THE ISSUES ARE NEITHER PROCEDURALLY BARRED NOR PRECLUDED FROM FEDERAL HABEAS REVIEW. The Applicant has exhausted each of the issues presented consistent with Duncan v. Henry, 513 U.S. 364 (1995). Although each issue raised in Applicant's amended petition is stated slightly different than Applicant's state direct appeal, the substance of the arguments remains similar and are "virtually identical." Contrary to any assertion made by the Respondents, the issues presented in state court do not have to use the exact language and citation of case law as stated in Applicant's federal claims. To do so given the separate parameters of state court proceedings, would be an absurd burden placed on

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state prisoners seeking federal review of issues previously pursued in state court. By requiring this Applicant to have addressed his current issues in the exact language and substance of his state claims would deny him his due process rights and result in a "fundamental miscarriage of justice." McClesky v. Zant, 499 U.S. 467, 493 (1991). Moreover, it would be unnecessarily burdensome for state courts to use exact federal statutes or references to U.S. Constitution Amendments. Outlined below is the comparable state appellate issues that were raised in the state courts as well as a brief analysis as to the identical nature of the claims. In addition, Applicant has raised two issues in the context of his federal habeas petition (issues 9 and 10), which were raised in Applicant's direct appeal regarding his post-conviction motion filed in state court. Both issues have been exhausted and addressed by the Colorado Court of Appeals People v. Harrington, 01CA1800 (Colo. App. June 12, 2003). Finally, as discussed in issue 9 below, any assertion that Applicant has not exhausted his claims is excused based on the argument of ineffective assistance of counsel supporting the "cause or prejudice" or "fundamental miscarriage of justice" requirements for overcoming any procedural bar. See generally, McClesky v. Zant, 499 U.S. 467 (1991); Murray v. Carrier, 477 U.S. 478 (1986). Any assertion that there is a procedural bar is waived if the Applicant can demonstrate good cause in failing to raise these alleged errors. United States v. Frady, 456 U.S. 152 (1982). The Applicant must establish good cause and actual prejudice otherwise his claims will be denied. Id. at 152-153.

Moreover, this Circuit has held that an ineffective assistance of counsel claim will establish cause for failing to raise a specific due process claim earlier. Medina v. Barnes, 71 F.3d 363 (10th Cir. 1995).

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The issue of ineffective assistance of counsel was not previously raised and this issue involves a constitutionally protected right which may never be waived and remains in force. See generally, United States v. Angelos, 763 F.2d 859 (7th Cir. 1985); Haynes v. United States, 390 U.S. 85 (1968). Procedural fundamental fairness must be examined in the entire context of the original indictment that haled the Applicant into Court. Assuming arguendo, that the Frady "cause and prejudice" test is not met, then this Court may examine whether the conviction or sentence imposed results in a "miscarriage of justice." Any and all procedural bars are waived based on the assertion that former counsel was ineffective and that his conduct has prejudiced this Applicant. In the context of this issue, the Applicant has demonstrated good cause in his failure to raise the claim and demonstrated the actual prejudice resulting from this alleged error. United States v. Frady, 456 U.S. 152 (1982). 1. The Applicant was 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. Comparable direct state appellate issue: The trial court erred in failing to sever

Harrington's trial from that of the co-defendant. Clearly, former counsel raised this issue in the context of Applicant's direct appeal. Any perceived failure to address this issue in a writ of certiorari, although not required by statute or any case law, is excused based on his claim that counsel was ineffective in failing to preserve all issues necessary for insuring a full review in a federal habeas proceeding. There is no procedural requirement that counsel use the same language in either his direct appeal or petition for writ of certiorari. Most importantly, and contrary to the Respondent's pleadings, there is no requirement that every issue be raised in a writ

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of certiorari proceeding if doing so will be contrary to state court precedent. Parenthetically, as long as the issue is properly preserved in the context of appellate review, the issue remains ripe for federal review. Here, Applicant's issue has been properly exhausted in the state court system. 2. The Applicant was 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 activities. Comparable direct state appellate issue: The trial court erred in qualifying a police officer as an expert in gang-related activities and allowing the officer to opine upon and introduce highly prejudicial and irrelevant gang-related evidence at trial. See arguments above. 3. The Applicant was 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. Comparable direct state appellate issue: The trial court erred in allowing highly

prejudicial gang-related evidence introduced at trial. See arguments above. 4. The Applicant was 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. Comparable direct state appellate issue: The trial court made numerous procedural and substantive errors in its handling of defendant's Batson claims which requires reversal of Harrington's conviction. Comparable petition for writ of certiorari issue: Whether the trial court erred in the procedures it followed in considering Petitioner's Batsons claim and in its ultimate denial of the claim.

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See arguments above. 5. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to jury misconduct. Comparable direct state appellate issue: The trial court erred in failing to grant a mistrial due to jury misconduct when jurors sought critical extrajudicial information outside of the evidence and in their discussion of testimony and witness credibility prior to jury deliberation. See arguments above. 6. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments as a result of the state trial court admitting eyewitness identification of him. Comparable direct state appellate issue: The trial court erred in denying Harrington's motion to suppress eyewitness identification testimony. Comparable petition for writ of certiorari issue: Whether the trial court erred in denying Petitioner's motion to suppress eyewitness identification testimony. See arguments above. 7. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to the state's suppression of material evidence pursuant to the Brady doctrine. Comparable direct state appellate issue: The trial court erred in failing to grant any relief based upon the discovery of the murder weapon while the jury was deliberating. Comparable petition for writ of certiorari issue: Whether the trial court erred in failing to grant any relief based upon the discovery of the murder weapon while the jury was deliberating. See arguments above.

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8. The Applicant was 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. Comparable direct state appellate issue: The trial court erred in allowing Dr. Weggs, an oculoplastic surgeon, to give expert testimony reflecting on the veracity of Christina Hollar's testimony. Comparable petition for writ of certiorari issue: Whether the trial court erred in allowing Dr. Weggs, an oculoplastic surgeon, to give expert testimony reflecting on the veracity of Christina Hollar's testimony. See arguments above. 9. The Applicant was denied his right to effective assistance of counsel during trial and during post-conviction proceedings in violation of the Sixth Amendment to the United States Constitution. Comparable state Rule 35 (post-conviction) direct appellate issues: Trial court erred in failing to hold a hearing in his Colorado Crim P. 35(c) proceeding based on defendant's ineffective assistance of counsel claims, which included the following: 1. Counsel failed to make proper discovery and did not investigate the case to find witnesses and evidence that would have proven defendant's innocence; 2. Counsel failed to subpoena four witnesses in support of his alibi defense; 3. Counsel failed to properly question the state's witnesses; 4. Counsel failed to subpoena witnesses and evidence that would have shown that the defendant is innocent of the crime charged; 5. Counsel should have requested some form of protection for unsequestered jurors exposed to a media frenzy of untruths; 6. Counsel failed or logically support defendant's alibi defense and counsel strongly advised defendant against taking the stand; 7. Counsel failed to adequately prepare for

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trial, investigate, etc. and, 8. Cumulative effect of errors denied the defendant his right to post conviction relief. See arguments above. 10. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to the state court's failure to provide for an evidentiary hearing during Applicant's Rule 35(c) proceedings. Comparable state Rule 35 (post-conviction) direct appellate issues: (1) Trial court erred in not holding a hearing to appoint counsel to defendant; (2) Trial court erred in failing to appoint counsel at every stage of the Colorado Crim. P. 35(c) proceeding based on defendant's assistance of counsel claims; (3) Trial court erred in failing to hold a hearing in his Colorado CrimP. 35(c) proceeding; (4) The cumulative effect of errors denied defendant of his post-conviction relief. See arguments above. VI. SUMMARY OF FACTS SUPPORTING THE CLAIMS FOR RELIEF The following summary of facts is drawn from the Applicant's direct state appellate brief: "On July 23, 1993, at approximately 12:30 a.m., Thomas and Cristina Hollar were confronted in the parking lot of their Denver Capitol Hill apartment by at least two men. (Vol. 17:1-212). When they exited their vehicle, one man approached Thomas and an argument ensued. The man produced a weapon and shot Thomas twice. He died later that morning. Another man attacked Christina, forcing her into the back seat of the Hollar's Honda automobile. At approximately 1:25 a.m., the Honda was located by the police in a north Denver alley. Christina was found in the rear of the vehicle severely beaten and partially clothed.

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The prosecution presented both direct and circumstantial evidence that co-defendant Davis was one of the men who attacked the Hollars. At trial Christina identified Davis as the person who hit her in the face at the scene of the initial confrontation and beat her in the back seat of the Honda. (Vol. 18:72-73). In the Honda police discovered a Casio watch and a black coin purse containing half of a business card with a pager number written on it. (Vol. 23:44-45). Felicia Haynes testified that she had contact with Davis earlier in the evening. At that time, Haynes wrote her pager number on the bottom of the business card and Davis gave her the other half after writing his nickname, "Punkin," and his phone number on it. (Vol. 17:151-53, 156). The two halves of the business card matched and expert testimony identified the word "punkin" as having been written by Davis. (Vol. 25:18, 22). Witnesses told police that the coin purse and watch belonged to Davis. (Vol. 25:41-42, 105-6; 23:163-5). Christina identified Harrington as the person who shot her husband. (18:67). Michael Evans, a friend of Tom Hollar who was passing the scene, identified Harrington as the shooter, but did not see another assailant. (Vol. 19:56-61). Several other witnesses identified Davis and Harrington as persons they saw in the area around the scene of the shooting shortly before the incident: Dancia Darling (Vol. 18:99); Rena Wakabayashi (Vol. 19:11-14); Manchell England (Vol. 19:217-8) and Teresa Muniz (Vol. 20:88-90). No alleged murder weapon was presented at trial. Based upon bullets recovered from Tom Hollar's body and the lack of shell casings at the scene, the prosecution theorized he was shot with a large caliber revolver. Two .38 caliber shell casings consistent with the bullets recovered from Hollar were found at Davis' home. (Vol. 23;80, Vol. 25;24:12 et seq.).

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Unlike the case against Davis there were no items of physical evidence linking Harrington to any of the crimes charged. Fingerprints and a palm print taken from the Hollar Honda did not match either Davis or Harrington or the Hollars. (Vol. 26:15). A hair was found on a tank top recovered near where the Hollar's Honda was found. The prosecution and defense presented conflicting expert opinion testimony whether the hair was consistent with Harrington's hair. (Vol. 25:78 et seq.; Vol. 26:16 et seq.). Harrington challenged the accuracy of the eyewitness identification. For example, in contrast to Christina Hollar's certainty of her identification of Davis and Harrington at trial, she failed to identify them in photo lineups while she was hospitalized. (Vol. 23:101-105, 114). At a physical lineup involving Harrington, she did not pick

Harrington. Instead she selected two other men as looking like one of the assailants. (Vol. 23:60). At the preliminary hearing when Davis and Harrington appeared in jail clothing at counsel table, Christina Hollar identified them as her assailants, but could not remember the details of the incident. (Vol. 18:112-114). By the time of trial Hollar had doubt that Davis and Harrington were the persons responsible. She explained that "[m]y memory becomes clearer as time goes on." (Vol. 18:145). In addition to attacking the identification testimony through cross-examination, Harrington presented a psychologist expert on eyewitness identification. The expert testified regarding problems inherent in eyewitness identification testimony. (Vol.

26:150 et seq.). Harrington also presented testimony of alibi witness, Delores Mercado Baker (Vol. 27:10 et seq.). In addition, the defense pointed to evidence in the case that suggested that a member of Davis' family and not Harrington was present and committed the crimes for which Harrington was convicted."

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Additional facts are outlined as needed in the arguments presented below. VII. ARGUMENTS OF FACT AND LAW 1. The Applicant was 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. Applicant and his co-defendant Davis opposing defenses and thus a pretrial motion for severance was filed. (Vol. 1:174-75). The Applicant denied his participation in the offense conduct from the very beginning during pre-trial proceedings. During opening statements, counsel for co-defendant Davis pointed his finger directly at the Applicant and declared that the Applicant and others were guilty of the offenses. (Vol. 17:101). In essence, co-defendant Davis began the trial by immediately placing full and total responsibility on the Applicant while denying his involvement. The damaging effect of this type of conduct is two fold: First, the jurors are immediately suspect that the Applicant is the guilty party since a co-defendant is pointing his finger at him; Second, the action is indeed antagonistic and now the Applicant becomes prejudiced by such action at the start of the trial where no remedy, but for declaring a mistrial, can possibly address the magnitude of co-counsel's actions as the trial commences. Clearly, nothing can be done to remedy this situation since defense counsel for co-defendant Davis has now declared that the Applicant is guilty and his defense strategy proceeds consistent with his proclamation. Counsel's motion for severance was renewed again but

improperly denied in violation of Applicant's due process rights to a fair trial. -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000).

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The interests of judicial expediency should not be sacrificed in the interest in avoiding adequate protection for the Applicant. The state court's interpretation was not only incorrect, but also failed to evaluate the import of the degree by which opposing counsel attempted to accuse the Applicant of committing the crimes. The curative instructions provided failed to adequately protect the Applicant. Since the case just commenced, it would have been reasonable to grant a mistrial since a new trial could have commenced in a relatively short time. By his pointing the finger at the Applicant, the defenses became antagonistic. Peltz v. People, 728 P.2d 1271 (Colo. 1986). Clearly, the state court's rational was incorrect based on the facts and law and the Applicant has been denied his substantive due process rights pursuant to the Fifth Amendment to the United States Constitution. 2. The Applicant was 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 activities. Applicant asserts that throughout the trial, given the background of gang activity in Denver during 1993, the introduction of gang type evidence by a witness was prejudicial and a denial of Applicant's Fifth Amendment rights. One must have an appreciation of the entire "gang hysteria" that existed in Denver in the summer of 1993 to understand that the admissibility of gang related evidence was inherently prejudicial. In this

instance, the Court permitted the introduction of various gang signals, dress, language, including but not limited to the introduction of "crip" signs. (Vol. 25:223-245). Even the trial court indicated that the introduction of volumes of gang-related evidence lacked any probative value relating to the identification of the Applicant. 2:378). (Vol. 10:210-213; Vol.

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Here, reversal of the Applicant's conviction was warranted since the prejudicial effect of the gang related evidence substantially outweighed the probative effect of utilizing the evidence as a form of identification. People v. Freeman, 668 P.2d 1371 (Colo. 1983). In fact, in Respondent's initial response to the Applicant, it is stated that the "the trial court admitted a lot of gang-related evidence, but all on the issue of identity." [Respondent's answer, page 33]. Qualifying a Denver police officer as an expert to testify about gang related evidence only served to buttress the prejudicial effect of alleging that the Applicant was a member of a gang who commonly engaged in criminal activity. By permitting this witness to testify, the jurors were left with the impression that gangs commit violence, and thus the Applicant as a member of a gang, has the propensity to commit violent crimes. There remained no "logical connection between gang

membership and Harrington's identity" and thus the introduction of this evidence only served to unduly prejudice the Applicant People v. Hulsing, 825 P.2d 1027 (Colo. App. 1991). -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). When the Appellate court reviewed Applicant's case, it was clear that the issue of prejudicial gang related evidence had been addressed by various federal courts. As the Attorney General's Office indicated in its answer brief: Gang-related evidence is relevant and admissible on issues such as bias, United States v. Abel, 469 U.S. 45, 49 (1984); identity. United States v. Easter, 66 F.3d 1018, 1020 (9th Cir. 1995); motive...and to buttress the ability of witnesses to identify the defendants. United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993).

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However, what was missing in their response, or by state court review was an appropriate balancing test regarding the introduction of prejudicial evidence versus the probative value of the same evidence consistent with Rules 404(b) and 403 of the federal rules of evidence. Specifically, Rule 404(b) provides a narrow threshold inquiry, which must be addressed before evidence can be admitted. Rule 403 provides for a balancing test, which must be applied before evidence is admitted. A court must determine that "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Had the state courts conducted a thorough balancing test, they would have determined that the constant hype of gang related evidence including but not limited to gang "signs, dress, language, and appearance of gang members, particularly those of a specific gang," served to unnecessarily inflame the jurors against the Applicant. See state appellate decision. The introduction of this type of evidence, against the backdrop of increase media attention, was patently unfair and denied the Applicant a fair trial under the federal rules of evidence. Thus, the state court's decision were based on an

unreasonable application of established federal principles. 3. The Applicant was 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 arguments as presented in Issue 2. -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). The Applicant incorporates the same arguments as presented in Issue 2.

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4. The Applicant was 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. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court reaffirmed the principle that the Equal Protection Clause forbids the prosecutor from challenging potential jurors solely on the basis of race. The Court established a three-step process for evaluating an objection to peremptory challenges and to determine whether a constitutional violation has occurred. First, "a defendant must make a prima facie

showing that the prosecutor has exercised peremptory challenges on a racial basis. Second, the burden shifts to the prosecutor to articulate a race-neutral explanation for the challenge. Finally, the trial court must then determine if the defendant has established purposeful discrimination." Id. at 96-98. See generally, Hernandez v. New York, 500 U.S. 352 (1991). In summary, the Applicant's Batson violations involved two separate claims as raised in his writ of certiorari petition filed with the Colorado Supreme Court: First, The trial court erred in allowing the prosecution four separate opportunities to justify its exclusions of minority jurors in reference to Petitioner's Batson claims. In this instance Applicant filed a summary attached to his writ of certiorari petition, Appendix A, which indicated the state's various general reasons for excluding minority jurors. [See Writ of Certiorari, Appendix A]. This process was not only absurd, but the additional time permitted to allow the prosecutor to uncover race-neutral reasons was impermissible. Thus, in

accordance with the second step of Batson, the reasons provided by the state were completely without merit in terms of being race-neutral. The reasons included, body language and appearance, which never adequately addressed the race neutral questions of

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Batson. By the time the Court conducted its analysis consistent with the third step of Batson, the evidence was clear that there were no suitable explanations provided. In the second component of Applicant's Batson argument, the Applicant asserted that the trial court erred in denying his Batson claim without specifically determining whether the prosecution's explanations were legitimate reasons for exclusion or a mere pretext for discrimination. Here, the record reflects explanations offered by the prosecutor, which clearly violate the Applicant's equal protection rights. (Vol. 15:192; Vol.16:44-45; Vol. 16:111, 121-122). In accordance with Purkett v. Elem, 514 U.S. 765 (1995), the Court cannot automatically accept every race-neutral explanation as a legitimate reason to exclude a juror. Instead, a court must carefully determine the plausibility and

justification of every reason provided. The reasons provided here were illogical and absurd. (Vol 15, pages 1-172). The Court's blind acceptance of these reasons as being race-neutral was in clear error thereby denying Applicant's Fifth Amendment rights. -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). No discernable justification was given permitting minority members of the jury pool to be excluded. Once defense counsel raised the issue, the prosecutor had a duty greater than the offered explanations consistent with Purkett to move for their exclusion. Defense counsel met his burden and the explanations as outlined in the record were neither race-neutral nor consistent with legitimate reasons for exclusion. The Colorado Courts ignored the requirements of Purkett and interpreted this key Supreme Court case as standing for the proposition that a trial or appellate court was required to accept implausible and silly justifications as legitimate. Id. at 768. Instead, Purkett stands for

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the proposition that the second step of Batson requires actual race-neutral explanations based on legitimate reasons. No such reasons were expressed during jury selection and the jury selection evidence reveals that the Colorado courts applied an "unreasonable application" of U.S. Supreme Court law. Finally, the Respondents point to the fact that the Colorado Court of Appeals held that the voir dire process was "exemplary" given the seriousness of the charges. [Respondent's answer, page 27]. Although the Colorado Courts correctly cite the

appropriate case law, including Batson v. Kentucky, Hernandez v. New York, and Purkett v. Elem, the Court's interpretation of Purkett remains incorrect in light of the facts presented during jury selection. This Court will need to review, in detail, the statements and questions presented during jury selection in order to find that the Applicant's Fifth Amendment rights were violated and that the state courts improperly decided this issue. 5. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to jury misconduct. The facts of this issue are not in dispute. First, several jurors discussed the import of evidence produced during the trial prior to any jury deliberations. A juror sent a note to the Judge complaining about the conduct of the other jurors who requested a definition of a "Jheri Curl" following the testimony of Lanica Jones. Second, several jurors

commented on the credibility of Lanica Jones stating that "she should have married Shane Davis and saved herself some trouble." (Vol.21:147-247). The Court dismissed

these two jurors who had made these comments and replaced them with alternates. Other jurors, in addition to the two who were dismissed, heard the comments and were allowed to remain. The Applicant requested a mistrial, which was denied and asserted the

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argument that the dismissal of the two jurors was an insufficient remedy in this instance. The Court denied this request. Additional juror misconduct occurred when one of the dismissed jurors, Ms. Arnold, called Ms. Buff to discuss the case. (Vol.23:13-20). A mistrial again was requested based on this improper conduct, but the court denied the motion and refused to sequester the jury. These multiple instances of jury misconduct have denied the Applicant his right to a fair and impartial jury. The remedy in this instance required the trial court to declare a mistrial thereby ordering a new jury panel to be selected. -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). The Sixth Amendment to the United States Constitution guarantees the right to an impartial jury, a "jury capable and willing to decide the case solely on the evidence before it." Gonzales v. Thomas, 99 F.3d 978, 983 (10th Cir. 1996),"When a party's suggestion that a jury is biased is not frivolous, the district court ordinarily should undertake an adequate inquiry into the question of whether the bias actually existed and whether it was prejudicial." United States v. Bradshaw, 787 F.2d 1385, 1390 (10th Cir. 1996). In this instance, the Court had an obligation to question the entire jury panel and to "make an adequate inquiry" regarding the level of bias, if any, that existed. Although the Court interviewed each juror, and it was determined that several of these jurors did if fact hear the "expressions and comments," it was decided that the remedy would only involve the dismissal of two jurors. This remedy was vastly inadequate and instead, the court

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relied on the good nature of the jurors in agreeing that they would still "act fairly towards the defendant." [State Appellate decision, page 16]. The prejudice that inured in this instance is obvious. The jury panel was indeed seeking information outside the scope of the trial, which is impermissible under Colorado law. See generally, Wiser v People, 732 P.2d 1139 (Colo. 1987). All of the jury members had discussed the definition of a "Jheri Curl" and not just the two jurors who the Court admitted were not fair and impartial. Thus, all jurors were seeking, discussing, and evaluating evidence outside of the trial, which was indeed inconsistent with Colorado law. Arguably, if two jurors were unfair and tainted, then all jurors were since the same level of discussion occurred within the entire panel. It was the trial court that declared the two jurors unfair and thus failed to make the same assertion with all members. Reversible error has occurred and the Applicant has been denied his rudimentary rights to a fair trial. 6. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments as a result of the state trial court admitting eyewitness identification of him. Applicant filed a motion to suppress eyewitness identification testimony claiming that the procedures utilized by the state unfairly prejudiced him. (Vol. 1:178-181). These procedures involved the use of a photo line-up in which the victim, Christina Hollar, was unable to identify the Applicant. However, at the preliminary hearing, testimony was provided by others that witnesses England, Darling, Muniz, Wakabayashi and Hollar had identified the Applicant. Applicant requested that he be permitted the opportunity to "present the testimony of the eyewitnesses on the issue of the totality of the circumstances and the reliability of the identification." (Vol. 10:121, et seq.). The

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witnesses themselves, were never permitted to testify as to their alleged identification of the Applicant. The trial court made the following findings as summarized in Applicant's direct appeal: Harrington's photograph in the photo lineup stood out from the other photograph, Harrington's skin coloring was obviously the lightest and his picture appeared to be washed out. Harrington and one other individual were the tallest in the physical lineup. In addition, while the court made no specific finding on this issue, a review of the videotape of the physical lineup shows that Harrington was clean-shaven and the other individuals had facial hair, i.e. moustache or goatee or both. The witnesses had not included facial hair in their description of the perpetrator alleged to be Harrington. Nevertheless, the court found that the photo lineup and physical lineup were not suggestive and denied the motion to suppress. The court made no findings regarding the circumstances surrounding the observations by the witnesses or any of the factors in Neil v. Biggers, 409 U.S. 188 (1972) concerning the reliability of the identification testimony. In this Circuit, to determine whether admission of a witness identification from a photographic lineup violates a defendant's due process rights, the Court applies a twoprong test. First, is the photographic lineup impermissibly suggestive. United States v. Wiseman, 172 F.3d 1196 (10th Cir. 1999). Second, if the lineup was impermissibly suggestive, the Court determines whether the identification process was reliable considering the totality of the circumstances. United States v. Sancehez, 24 F.3d 1259, 1262 (10th Cir. 1994). Thus, an evaluation of all the circumstances in a totality of evidence procedure is necessary. The trial court prevented the Applicant from presenting any direct evidence relating to the actual witnesses' identification and has denied his due process rights as well as his right for effective cross-examination of these witnesses as further defined below.

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-The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). In a summary fashion, the Colorado Court of Appeals denied Applicant's issue and stated the following: Defendant next contends the trial court erred in denying his motion to suppress eyewitness identification testimony. We disagree. Our review of the trial court's extensive and detailed findings in light of the record and the applicable law convinces us that it did consider the totality of the circumstances and that these circumstances fully support its conclusion. Thus, no error occurred. People v. Staten, 746 P.2d 1362 (Colo. App. 1987); see People v. Monroe, 925 P. 2d 767 (Colo. 1996). On review before the Colorado Supreme Court, the Applicant asserted again, that the trial court "refused to hear the testimony of the witnesses subpoenaed by the defense based on the court's long-held policy not to listen to testimony of the eyewitnesses unless the court found that the circumstances of any identification procedures were so unduly suggestive as to constitute the possibility of any irreparable identification. (Vol.9:90-91; 10:115 et seq: Vol. X:121 et seq.). Accordingly, the court did not permit the defense to present the testimony of the eyewitnesses on the issue of the totality of the circumstances and the reliability of the identification." The witness identification process is evaluated by the constitutional standards of Neil v. Biggers, 409 U.S. 188 (1972) which were clearly delineated by defense counsel in Applicant's direct state appeal. The Colorado courts' decisions are contrary to the

standards of due process and Neil v. Biggers, 409 U.S. 188 (1972). First, the court must determine whether the lineups and identification were suggestive. Second, assuming that the identification was suggestive, the court must determine whether there were factors

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independent of the suggestive procedures. Neil v. Biggers, 409 U.S. 188 (1972); Stovall v. Denno, 388 U.S. 292 (1967). Here, the trial court failed to permit the Applicant the opportunity to present evidence rebutting the eyewitness identification testimony. The Sixth Amendment guarantees the right of cross-examination in a criminal trial. Davis v. Alaska, 415 U.S. 308 (1974). This "right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense." Washington v. State of Texas, 388 U.S. 14, at 20 (1967). There is always a presumption in allowing for the full exploration of facts, which would tend to discredit a witness by showing a bias or prejudicial motive in his testimony. Alford v. United States, 282 U.S. 687 (1931). By not permitting defense counsel the right to present evidence on those factors affecting the totality of the circumstances and reliability of the identification process, the Applicant has been denied his due process rights. The Colorado courts never considered the import of the Sixth Amendment right to present a defense thereby permitting the Applicant to rebut the state's identification process. Thus, the Applicant's due process rights have been violated requiring a new trial. 7. The Applicant was denied his right to a fair trial and due process of law pursuant to the Fifth, Sixth and Fourteenth Amendments due to the state's suppression of material evidence pursuant to the Brady doctrine. The United States Supreme Court in Kyles v. Whitley, 514 U.S. 419 (1995) has expanded the ruling of Brady v. Maryland, 373 U.S. 83 (1963). The progeny of cases since Brady v. Maryland, demonstrate that the right to receive all exculpatory evidence from the Government is an absolute right, which may never be waived or avoided. In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court held that the Brady rule

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should be invoked if the evidence is considered "material" to the case and a failure to abide by this rule is reversible error. The United States Supreme Court announced in Strickler v. Greene, 527 U.S. 263, 281-82 (1999), the three elements that a defendant must establish in order to successfully assert a Brady violation: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." The Court in Strickler defined prejudice as "whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Strickler, 527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995). The Government's obligation to provide defense counsel with all exculpatory evidence remains constant throughout the trial. Documents or information must be

"within the possession, custody, or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government, and which are material to the preparation of the defense or are intended for use by the government as evidence in chief at the trial." See generally, Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Jencks v. United States, 353 U.S. 657 (1957). Under a Brady analysis, the prosecutor knew of the discovery of the murder weapon by the police. This weapon had been in the possession of co-defendant Davis' brother,

Rodney Lewis. Thus, given the complete lack of physical evidence linking the Applicant to the crime, the details regarding the possession and use of the murder weapon became paramount. As the Court stated in Kyles, if the suppression of evidence undermines

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confidence in the proceedings, a Brady violation has occurred. As the Court stated in Gonzales v. McKune, 247 F.3d 1066 (10th Cir. 2001), the evidence withheld by the Government need not conclusively exonerate a defendant in order to qualify as Brady material, rather, the evidence need only be favorable to the defense. The evidence suppressed by the state was favorable to the defense in that the jury could have determined that co-defendant Davis and his brother, not the Applicant, were guilty of the offenses charged. Indeed, the gun was not found in the possession of the Applicant or his family, but rather in that of his co-defendant and the jury could have inferred that the crimes were committed by someone other than the Applicant. The delay in producing the evidence prior to or during trial, prevented the defense from making this assertion and proving the defendant's innocence in violation of his due process rights. Justice Sutherland's opinion in Berger v. United States, 295 U.S. 78 (1935) remains timeliness in asserting the proposition that the Government must adhere to an obligation of justice and fundamental fairness. The Court in Berger stated that: The United States is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilty shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Id. at 88. Ultimately, it should have been the duty of the prosecutor to provide all relevant material evidence in a timely manner, especially the murder weapon, and when this is not

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accomplished, the Court has an obligation to order a new trial. The Brady violation that occurred, "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Davis v. Woodford, 333 F.3d 982, 996 (9th Cir. 2003). -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). The state courts' decisions were incorrect and failed to account for the constitutional duty of the prosecutor that existed by failing to timely turn over the gun. As previous counsel stated, "the circumstances surrounding the recovery of the murder weapon and subsequent arrest of Rodney Lewis was of such a character as to make it appear that the verdict was influenced by false or mistaken testimony and that upon another trial the result be different, or even doubtful citing Cheatwood v. People, 435 P.2d 402 (Colo. 1967)(Vol.3:511-523)." The Colorado Court of Appeals resolved this issue using an incorrect standard inconsistent with federal law. The Court evaluated this issue based on only one component of Applicant's appellate argument that he should have received a new trial based on newly discovered evidence. However, the Colorado Appeals Court failed to address Applicant's argument that he "was denied a fair trial when newly discovered evidence was withheld for the defense and the jury by the prosecution." [Colorado Direct Appeal, Issue IVA]. Instead, the Court examined the issue as to

whether a "retrial using the newly discovered evidence would probably produce an acquittal." [Colorado Court of Appeal's decision, page 11]. This inquiry alone was insufficient to properly evaluate the constitutional requirements of a Brady violation. First, there appears to be an acknowledgement that that there was a Brady violation in that "evidence was discovered after trial, the defendant and his counsel exercised

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diligence to discover all evidence favorable to the defendant before and during trial and the evidence is material to the issues at trial and is not merely cumulative or impeaching." [Colorado Court of Appeal's decision , page 11]. Under a Brady violation analysis, the evidence does not conclusively need to exonerate a defendant as the Court ostensibly held in People v. Gutierrez, 622 P.2d 547 (Colo. 1981). Here, the Court's reasoning is that the jury had convicted the Appellant in the absence of the murder weapon and thus its import was not critical to the defense. This analysis is factually incorrect since the discovery of the gun in the possession of co-defendant Davis' brother only serves to buttress Applicant's argument that others were involved in the offense conduct. The circumstances of the discovery of the weapon would allow the jurors an opportunity to reach a different verdict. Second, the conduct of the state in committing the Brady violation must not be ignored as excusable neglect without constitutional ramifications. The confidence in the outcome of the proceedings is seriously undermined when the murder weapon is discovered after the close of all evidence in the case and defense counsel has no opportunity to address the irregularities of the discovery of the gun. Those facts alone represent a lack of constitutional safeguards afforded to every defendant in terms of confronting evidence consistent with the Sixth Amendment to the United States Constitution. The ability to confront evidence and explain the circumstances of its existence was critical to the defense. Thus, once the Brady violation occurred, it was unnecessary for the state court to make a finding that its existence would have guaranteed an acquittal. That type of analysis is neither contemplated nor required upon finding that a Brady violation occurred. The remedy now is to reverse the Applicant's conviction

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based on governmental misconduct in failing to timely provide defense counsel with the evidence needed to establish a reasonable defense. 8. The Applicant was 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 victim's oculoplastic surgeon to testify addressing the ability of the victim to make truthful statements following her injuries. The victim, who had previously identified the Applicant as one of her assailants, was suffering from extreme physical injuries when she made her identification. The surgeon provided an improper expert opinion that the victim had sufficient memory to identify the Applicant. The surgeon's testimony exceeded the scope of his expertise. Although admitted as an expert in the field of surgery, he had no expertise in the field of memory loss. It is imperative to note, that the only eyewitness to the offense conduct was that of the victim. Ms. Hollar had experienced severe trauma and her memory was clearly questionable. The import of this doctor testifying was critical to the state's case. By providing such testimony, given the complete lack of forensic evidence in this case, the state attempted to buttress the testimony of the victim, thereby creating a prejudicial effect in Applicant's trial. But for the doctor's testimony that it is probable that "a combination of physical factors such as brain swelling or psychological factor called `repression' where people blot out painful memories and recall them later" no other evidence suggests that Ms. Hollar's memory was intact. (Vol. 22:163-164). Dr. Weggs was asked a series of questions in an attempt to elicit an expert opinion regarding Ms. Hollar's memory. (Vol.

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22:175). In summary, Dr. Weggs gave expert testimony in an area in which he was not qualified as an expert in violation of Colorado Rules of Evidence 702. -The State Courts' decisions are contrary to and involve an unreasonable application of federal law or the decision reached was based on an unreasonable application of clearly established law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 404-05 (2000). Once again, the introduction of expert witness testimony, in an area in which the witness is not qualified to testify in, is a violation of state and federal law. A simple analysis under Federal Rules of Evidence 403 indicates that the probative value in having a doctor testify in an area, in which he is not qualified to do so in, is prejudicial against the Applicant. His testimony only serves to improperly buttress the state's case that Ms. Hollar correctly identified the Applicant and thus she has greater credibility than other witnesses. The decision to permit this witness's testimony unduly prejudiced the

Applicant and fundamentally distorted the juror's perception of the victim's questionable memory. In evaluating this claim, it is necessary to consider the import of Applicant's Sixth Issue in that the witness's identification process were suggestive. If the Court agrees that such an identification was suggestive, then the doctor's testimony can only be declared highly prejudicial against the Applicant. Under federal law, Rule 702 of the federal rules of evidence permits the court to admit specialized knowledge if it "assist the trier of fact to determine a fact in issue." United States v. McDonald, 933 F.2d 1519, 1522 (10th Cir. 1991). Here, the doctor's testimony should have concerned only the injuries suffered by the victim and not her memory capabilities. Exceeding the scope of the doctor's expertise violates the notions of

fundamental fairness and has lead to a denial of the Applicant's Fifth and Fourteenth Amendments.

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9. The Applicant was denied his right to effective assistance of counsel during trial and during post-conviction proceedings in violation of the Sixth Amendment to the United States Constitution. The Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense." This agreement between the government and its citizens has evolved into an understanding that counsel must be more than a helping hand. The right to counsel is a fundamental right, as it assures the fairness and thus the legitimacy of our adversary process. Gideon v. Wainwright, 372 U.S. 335 (1963). A citizen accused of a crime is entitled to be assisted by an attorney who plays a role necessary to ensure tha