March 1, 2015

Tenth Circuit: Court Denied Defendant’s Claims that His Statements Were Involuntary and that He Received Ineffective Assistance of Counsel

The Tenth Circuit published its opinion in Davis v. Workman on August 28, 2012.

An Oklahoma jury convicted Defendant Davis of the first degree murder and rape of Josephine “Jody” Sanford. After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA),  and pursuing postconviction relief in state court, Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but the Tenth Circuit granted a COA on three issues: (1) whether Defendant’s statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; (2) whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements; and (3) whether Defendant’s trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning.

The Court’s review in a § 2254 proceeding is highly deferential.

(1) Defendant contended that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. What Defendant presented on appeal failed to overcome the deference owed to the OCCA decision. The expert report merely stated that there was a possibility of impairment from the medication. The Tenth Circuit held that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.

(2) Defendant argued his counsel was ineffective in failing to present scientific evidence that he was impaired while making statements in the hospital. To succeed on an ineffectiveness-of-counsel claim, Defendant must show: that counsel’s representation fell below an objective standard of reasonableness, rendering his or her performance deficient, and that the deficiency prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the jury would have had a reasonable doubt respecting guilt.  The Tenth Circuit held that Defendant did not make the necessary showing that the OCCA “unreasonably concluded that [he] was not prejudiced” by counsel’s failure to present at trial the additional evidence of impairment.

(3) Finally, Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning. For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine coercion claim and that he was prejudiced by the failure of his attorneys to do so. However, the Court found the evidence that Defendant felt coerced by the withholding of morphine very weak, if not nonexistent. Accordingly, this claim was also denied.

Tenth Circuit: Certificate of Appealability Denied Except to Amend Motion to Add Claims that Counsel Was Ineffective for Failing to Challenge Calculation of Criminal History

The Tenth Circuit Court of Appeals published its opinion in United States v. Roberts on Friday, July 20, 2012.

The Tenth Circuit granted Petitioner a certificate of appealability (COA) on one issue, and denied it regarding all other issues. Petitioner sought a COA so he could appeal the district court’s denial of the motion to vacate, set aside, or correct sentence after being convicted of being a felon in possession of a firearm. The judgment of conviction was affirmed by the Tenth Circuit in 2011 but later raised four claims of ineffective assistance of trial counsel. The district court denied relief on all four claims.

Petitioner cannot appeal the denial of his motion until he first obtains a COA from the Tenth Circuit. “To be entitled to a COA, [Petitioner] must make ‘a substantial showing of the denial of a constitutional right.’ To make the requisite showing, he must demonstrate ‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ . . . Although [Petitioner] need not demonstrate his appeal will succeed to be entitled to a COA, he must ‘prove something more than the absence of frivolity or the existence of mere good faith.’ In his COA application and appellate brief, [Petitioner] challenges the district court’s disposition of his four claims and also argues the court abused its discretion by refusing to permit him to amend his § 2255 motion.”

The Court concluded that Petitioner “is not entitled to a COA on any claim except the one relating to the district court’s refusal to permit him to amend his § 2255 motion to add claims his trial and appellate counsel were ineffective for failing to challenge the calculation of his criminal history. The district court’s resolution of the remaining claims on which [Petitioner] seeks a COA is not reasonably subject to debate and the other issues he seeks to raise on appeal are not adequate to deserve further proceedings.”

Colorado Court of Appeals: Criminal Defendant Does Not Have Right to Review All Discovery Obtained by Counsel or to Testify at Pre-Trial Suppression Hearing

The Colorado Court of Appeals issued its opinion in People v. Krueger on May 10, 2012.

First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.

Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.

Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.

Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.

Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.

Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.

Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.

Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.

Summary and full case available here.

Tenth Circuit: Certificate of Appealability Denied; No Facts to Suggest Defendant Prejudiced by Attorney’s Purported Ineffectiveness

The Tenth Circuit Court of Appeals published its opinion in United States v. Moya on Monday, April 16, 2012.

The Tenth Circuit denied Petitioner’s request for appeal. Petitioner, proceeding pro se, filed a motion for relief under 28 U.S.C. § 2255 in the United States District Court for the District of New Mexico. The district court denied the motion and rejected his application for a certificate of appealability (COA). He then sought a COA from the Tenth Circuit, which was denied and his appeal dismissed “because no reasonable jurist could debate the district court’s decision. [Petitioner] argues that his counsel was ineffective in negotiating his plea agreement and that the district court erred in refusing to hold an evidentiary hearing on his attorney’s ineffectiveness. But he has not alleged facts to support a finding that he was prejudiced by his attorney’s purported ineffectiveness.”

Tenth Circuit: Plea Agreement Waived Ineffective Assistance of Counsel Claim Because Failure to File Appeal Does Not Undermine Validity of Plea

The Tenth Circuit Court of Appeals published its opinion in United States v. Viera on Wednesday, March 28, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner, a federal prisoner, filed a motion to vacate, set aside, or correct his sentence pursuant, alleging ineffective assistance of counsel. The district court dismissed the first three claims because Mr. Viera could not show prejudice. The district court denied relief on all claims but the fourth—that his attorney failed to file an appeal as instructed—because Petitioner waived this collateral challenge. “The court was sufficiently uncertain, however, about the waiver determination that it granted COA on the appeal issue.”

The Court determined that the plea agreement waived Petitioner’s ineffective assistance claim “because counsel’s alleged failure to file an appeal does not undermine the validity of the plea or the waiver.” Petitioner voluntarily “entered into a valid plea agreement that waived his right to bring a collateral attack except in limited circumstances not found here, and because enforcement of the waiver does not produce a miscarriage of justice,” the Court affirmed the district court’s denial of this claim.

Colorado Court of Appeals: Defendant Waived Statutory Right to Be Advised of Possible Penalties Faced if Deferred Judgment Agreement Were to Be Revoked

The Colorado Court of Appeals issued its opinion in People v. Finney on March 15, 2012.

Deferred Judgment—Revocation—Due Process—Advisement—Sentence—Mitigating Evidence—Ineffective Assistance of Counsel.

Defendant appealed the revocation of his deferred judgment conviction. The judgment was affirmed.

In 2003, defendant was charged with three counts of class 3 felony sexual assault and three counts of class 4 felony sexual assault. Defendant entered into a deferred judgment, subsequently violated the conditions of the deferred judgment, waived any further advisement on revocation of the deferred judgment, and admitted to violating the deferred judgment. The trial court sentenced him on revocation of the deferred judgment and denied his post-conviction motions.

Defendant contended that the second judge’s denial of his post-conviction motions was error. Specifically, he argued that the Constitution’s Due Process Clause requires that the second judge advise him of the penalties he faced if the deferred judgment agreement were to be revoked. The Court of Appeals disagreed. Plea counsel, in defendant’s presence, waived defendant’s statutory right to be advised of the possible penalties defendant faced if the deferred judgment agreement were to be revoked. By its terms, Crim.P. 11 expressly applies to the entry of the guilty plea. Crim.P. 11 does not require the court to inform defendant of the possible penalties he could face when revoking the deferred judgment agreement in which he expressly waived a formal advisement and for which he repeatedly was informed of the potential penalties.

Defendant raised two contentions about the sentencing hearing. He argued that the fifth judge (1) denied him his right to offer mitigating evidence at the sentencing hearing when the court denied plea counsel’s motion to continue the hearing; and (2) ignored mitigating evidence when he imposed sentence. However, defendant did not demonstrate that he actually was prejudiced by the trial court’s decision to deny his request for a continuance. As a result, the fifth judge did not abuse his discretion when he denied that motion. Further, defendant did not raise the issue of mitigation before the trial court, so the Court declined to address that issue.

Defendant also argued that (1) the second judge unreasonably limited the evidence he could submit at the post-conviction hearing; and (2) plea counsel was ineffective in his representation of defendant during the deferred judgment revocation process. The Court disagreed. The trial court did not abuse its discretion by limiting the time in which defendant presented evidence on his allegation either that plea counsel was ineffective or that the court erroneously denied his motion to reconsider his sentence. Defendant had sufficient opportunity to present evidence in support of his post-conviction claims. Further, the record does not support a conclusion that there was a reasonable probability that, but for plea counsel’s alleged errors, defendant would not have confessed the motion to revoke his deferred judgment and would have insisted on having a hearing on the motion. Therefore, defendant was not prejudiced by plea counsel’s alleged deficient performance.

Defendant asserted, and the prosecution conceded, that the mittimus incorrectly stated that his sentence includes a mandatory three-year term of parole. Under CRS § 18-1.3-1006(1)(b), defendant’s conviction required a ten-year-to-life parole term. Thus, the case was remanded to correct the mittimus to reflect the proper parole term.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Colorado Court of Appeals: Defendant’s Right to Conflict-Free Counsel Violated When Sentencing Discussions Revealed

The Colorado Court of Appeals issued its opinion in People v. Delgadillo on March 1, 2012.

Sixth Amendment—Conflict of Interest—Attorney-Client Privilege.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree sexual assault and two counts of contributing to the delinquency of a minor. The judgment was reversed, the sentence was vacated, and the case was remanded for further proceedings.

Defendant took the stand at trial to testify in his own defense. Defendant testified that his counsel advised him that he would receive a sentence of twenty-five to thirty years, if found guilty. Outside the presence of the jury, defendant’s counsel testified in camera regarding his communications with defendant regarding the potential sentence, and defendant indicated that he would have taken the plea bargain instead of proceeding to trial if he had been told that the actual range was four to sixteen years if the sentences were to run concurrently. The case proceeded, and defendant was found guilty.

Defendant contended his Sixth Amendment right to conflict-free counsel was violated when the court swore in his trial counsel and permitted counsel to testify about communications he had with defendant about the ongoing representation. No one asked defendant whether he would waive the attorney–client privilege to allow his counsel to testify, or explained what the consequences might be if defense counsel testified inconsistently with defendant’s trial testimony. The record reflects defense counsel’s inherent conflict in simultaneously trying to respond to questioning from the court and the prosecutor, to justify his earlier advice to defendant, and to remain a zealous advocate on behalf of his client. In the circumstances presented here, including defense counsel’s disclosures of attorney–client privileged information, defense strategy, and the specter of an ineffective assistance claim, there was an actual conflict of interest that deprived defendant of conflict-free representation. Accordingly, the judgment was reversed, the sentence was vacated, and the case was remanded for a new trial.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 1, 2012, can be found here.

Colorado Court of Appeals: Plea Counsel Properly Advised Defendant; No Facts to Constitute Ineffective Assistance of Counsel

The Colorado Court of Appeals issued its opinion in People v. Stovall on January 19, 2012.

Crim.P. 35(a)—Plea—Ineffective Assistance of Counsel—Timeliness—Sentence.

Defendant appealed the trial court’s orders denying his Crim.P. 35(a) and (c) motions. The orders were affirmed.

Defendant shot and killed a neighbor’s dog on November 28, 2001. After a third party reported that gunshots had been fired, a deputy sheriff placed defendant under arrest for unlawful discharge of a firearm and cruelty to animals, both misdemeanors. Defendant’s twin brother then arrived and shot the arresting deputy in the head, killing him. Defendant and his brother stole a pickup truck from a neighbor at gunpoint, and defendant shot another officer in the lower back, permanently paralyzing him. During the next twenty-four hours, defendant and his brother engaged in a series of high-speed chases with law enforcement officers from various jurisdictions, firing weapons at eighteen officers without striking them. The brothers eventually surrendered.

Two attorneys from the Office of the Colorado State Public Defender (plea counsel), one a death penalty specialist, were appointed to represent defendant. Counsel negotiated a plea agreement wherein defendant would plead guilty to all of the pending charges and be sentenced to consecutive maximum sentences in the presumptive range for each charge; in exchange, the prosecutor would not seek the death penalty for either brother. Pursuant to that agreement, defendant pled guilty to one count of felony first-degree murder with a predicate offense of escape for the death of the deputy sheriff, thirteen counts of attempted after deliberation first-degree murder, five counts of attempted extreme indifference first-degree murder, and one count of aggravated robbery.

On appeal, defendant contended that his plea was not knowing and voluntary because of ineffective assistance of his plea counsel. Specifically, defendant argued that his plea counsel were ineffective because they failed to advise him that he could not be convicted of first-degree felony murder with a predicate offense of escape pursuant to CRS § 18-3-102(1)(b) when the escape was a petty offense. Because defendant’s plea counsel properly advised him and his claim was based on a misunderstanding of the law, he failed to state any facts that would constitute ineffective assistance of plea counsel.

Defendant also contended that plea counsel were ineffective because they did not examine the autopsy reports, police reports, or ballistic reports, and did not interview any witnesses before advising him to plead guilty. However, defendant did not specifically identify any exculpatory evidence or lack of evidence that would have affected his decision to plead guilty. Therefore, defendant’s argument is entirely speculative and insufficient to meet his burden of alleging facts that would allow the post-conviction court to find that he was prejudiced by counsel’s alleged failure to investigate.

Defendant also contended that the trial court erred in dismissing his Crim.P. 35(c) motion as time barred under CRS § 16-5-402 for the non-class felony convictions. However, defendant filed his Crim.P. 35(c) motion after the time had expired and failed to prove any justifiable excuse or excusable neglect for the untimely filing. Therefore, the court did not err in dismissing his motion.

Defendant further argued that the sentence imposed on him was illegal because his convictions for attempted after deliberation first-degree murder and attempted extreme indifference first-degree murder required inconsistent findings of fact. The information reflected that each attempted murder charge—after deliberation and extreme indifference —involved a different victim. Consequently, the sentence imposed on defendant was not illegal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 19, 2012, can be found here.

Colorado Court of Appeals: Trial Court Must Determine Whether Defendant Was Mentally Ill when He Requested to Represent Himself

The Colorado Court of Appeals issued its opinion in People v. Davis on January 5, 2012.

Competency—Mental Illness—Ineffective Assistance of Counsel—Possession—Distribution—Controlled Substance—Double Jeopardy—Guilty Plea.

Defendant appealed (1) the judgments of conviction for possession and distribution of a controlled substance entered after a jury verdict in Case No. 06CR10189; and (2) the judgments of conviction for two counts of possession of more than one gram of a controlled substance entered as a result of guilty pleas in Case Nos. 05CR1486 and 05CR3846. The case was remanded with directions.

Defendant contended that the trial court erred by denying his request to dismiss counsel and represent himself in Case No. 06CR10189. Courts may deny such requests made by defendants who are competent to stand trial, but whose mental illness renders them mentally incompetent to conduct their trials by themselves. Although the U.S. Constitution does not mandate this result, it permits it. Here, the trial court used the incorrect standard in determining whether defendant was competent to proceed to trial without counsel. Therefore, the trial court must determine on remand whether defendant was so mentally ill when he requested to represent himself that he was incompetent to conduct his trial without the assistance of counsel. If the court finds that defendant was competent to conduct his trial under this standard, the court must vacate the judgment of conviction and proceed accordingly.

Defendant next argued that the trial court erred by not adequately inquiring into his claims that substitute trial counsel was ineffective and labored under a conflict of interest. The record supports the adequacy of the trial court’s inquiry about this issue and the potential conflict of interest caused by defendant’s ethical complaint against counsel, as well as the court’s finding that defendant’s dissatisfaction pertained only to matters of trial preparation, strategy, and tactics.

Defendant further contended that the jury convictions for both possession and distribution of a controlled substance violate constitutional protections against double jeopardy, and that the conviction for possession of a controlled substance therefore must be vacated. Because the evidence was sufficient to support a finding that the possession and distribution charge each was based on a different quantum of drugs, defendant’s conviction on both counts did not violate double jeopardy principles.

Defendant also argued that it was error for the trial court to decline defendant’s request to withdraw his guilty pleas in Case Nos. 05CR1486 and 05CR3846. The decision to ask a court to withdraw a guilty plea is the defendant’s. Defense counsel is obligated to advise the defendant about the consequences of such a decision, but the defendant should have the last word. Here, because the decision to withdraw the guilty pleas was not a matter committed to substitute trial counsel’s discretion, the court abused its discretion when it declined to consider defendant’s request. The case was remanded for further inquiry on this issue.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Colorado Supreme Court: An Ineffective Assistance of Counsel Claim Premised on Failure to File Motion for Disqualification Must Have Allegation of Judicial Bias

The Colorado Supreme Court issued its opinion in People in the Interest of A.G., and Concerning C.M. on October 17, 2011.

Ineffective Assistance of Counsel—Judicial Disqualification—Appearance of Impropriety.

The Supreme Court reversed the court of appeals’ order requiring the trial court to determine on remand whether respondent received ineffective assistance of counsel because her attorney did not timely file a motion to disqualify the trial judge, whose clerk was related to a material witness in the case. The court also vacated the court of appeals’ directions to the chief judge to transfer the case to another judge.

Without deciding what is required to prevail on an ineffective assistance claim, the Court acknowledged that, at the least, an allegation of prejudice is necessary. Moreover, the Court held that when an ineffective assistance of counsel claim is premised on an attorney’s failure to file a motion for disqualification, the prejudice element cannot be satisfied without an allegation that the judge actually was biased. Because respondent’s motion for disqualification was based entirely on an appearance of impropriety, rather than a claim of actual bias, it failed to satisfy the prejudice element. Accordingly, the Court found it unnecessary to remand for additional findings on ineffective assistance.

Summary and full case available here.

Tenth Circuit: Dismissal of First Habeas Petition as Time-Barred was a Decision on the Merits; A Claim Presented in a Previous Habeas Petition Must Be Dismissed

The Tenth Circuit Court of Appeals issued its opinion in In re Rains on Wednesday, September 21, 2011.

The Tenth Circuit denied authorization to file a second or successive habeas corpus petition. Petitioner pleaded guilty in Oklahoma state court to making a telephone bomb threat, robbery with a dangerous weapon, and robbery. He was sentenced to ten, twenty, and twenty years of imprisonment, respectively, with the sentences to run concurrently. He filed his first habeas petition in federal district court in 2007, “asserting that (1) his sentence was excessive because he was eighteen years old at the time of the offenses, he was a first-time offender, and the victims were uninjured; (2) his robbery sentences were illegal; (3) his guilty plea was not entered knowingly and voluntarily because he was not told he would need to serve at least 85% of the sentence for robbery with a dangerous weapon; and (4) his counsel was ineffective for coercing him to plead guilty, failing to inform him that he would serve 85% of the robbery-with-a-dangerous-weapon sentence, and inadequately negotiating the plea. The court dismissed the petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Petitioner did not appeal.

In 2008, he filed another habeas petition, “re-asserting the first, third, and fourth claims. The district court decided this filing was an unauthorized second or successive § 2254 petition. Declining to transfer it to [the Tenth Circuit], the district court instead dismissed for lack of jurisdiction.” Petitioner again did not appeal. Petitioner now seeks authorization to assert all four claims in a second or successive habeas petition. “Under AEDPA, a claim presented in a previous § 2254 petition must be dismissed. . . . The dismissal of [Petitioner]’s first habeas petition as time-barred was a decision on the merits, and any later habeas petition challenging the same conviction is second or successive and is subject to the AEDPA requirements.” The Court therefore denied authorization. The denial of authorization is also not appealable and cannot not be the subject of a petition for rehearing or for a writ of certiorari.

Tenth Circuit: Opinion Amended to Add Citation (Padilla Is New Rule of Constitutional Law; No Retroactive Application on Collateral Review)

The Tenth Circuit Court of Appeals amended its opinion in United States v. Hong on Thursday, September 1, 2011.

The Tenth Circuit amended its original opinion issued on August 30, 2011. The amendment is limited to adding a citation to Chaidez v. United States, ___ F.3d ___, 2011 WL 3705173 (7th Cir. Aug. 23, 2011).