March 22, 2019

Archives for November 13, 2015

Adoption Day Events Scheduled in Colorado Courts Throughout November

November is National Adoption Month, and to celebrate, Colorado’s courts are holding Adoption Day events throughout the month. This month, Colorado judges will finalize adoptions for 159 foster children. National Adoption Day is a national effort to raise awareness of more than 100,000 children in foster care waiting for permanent and loving families. It occurs on the Since its inception, nearly 54,500 children have been adopted as part of National Adoption Day. This year’s National Adoption Day will be November 21, 2015. The following events are occurring in Colorado’s courts throughout the month of November to celebrate National Adoption Day:

  • First Judicial District: 22 children will be adopted on Saturday, November 21, from 8:30 a.m. to noon.
  • Second Judicial District: 50 children will be adopted on Friday, November 13, from 9:30 a.m. to noon.
  • Eighth Judicial District: 20 children will be adopted on Friday, November 20, throughout the day.
  • Tenth Judicial District: 10 children will be adopted on Friday, November 20, throughout the morning.
  • Eleventh Judicial District: 8 children will be adopted as part of the National Adoption Day celebration.
  • Twelfth Judicial District: All families who finalized an adoption in November are invited to a reception on Wednesday, November 18.
  • Sixteenth Judicial District: A celebration for the families of all 12 children adopted in 2015 will be held on Tuesday, November 17.
  • Seventeenth Judicial District: 13 children will be adopted on Saturday, November 21, from 9 a.m. to noon.
  • Eighteenth Judicial District: 7 children will be adopted in Arapahoe County on Thursday, November 19, and in Douglas County, 4 adoptions were held on November 6 and 3 more will be held on November 20.
  • Nineteenth Judicial District: 13 children will be adopted throughout the day on Friday, November 20.
  • Twentieth Judicial District: 3 children will be adopted on Friday, November 20, throughout the morning. A public celebration of Adoption Day will be held following the hearings.
  • Twenty-First Judicial District: 6 children will be adopted on Friday, November 20, from 1 to 2 p.m.

To find out more about National Adoption Day and Colorado’s court participation, and for information about whether media coverage is permitted at the various events, click here.

Finalists Selected for Vacancies on 18th Judicial District Court Bench

On Thursday, November 12, 2015, the Colorado State Judicial Branch announced the selection of six nominees to fill two vacancies on the Eighteenth Judicial District Court Bench. The vacancies will be created January 1, 2016, by the retirement of Hon. Angela Arkin and Hon. Timothy L. Fasing. The six nominees are Gary M. Kramer of Greenwood Village; Ben L. Leutwyler, III, of Highlands Ranch; Michael W. Melito of Littleton; Peter F. Michaelson of Centennial; Teresa W. Seymour of Castle Rock; and Shay K. Whitaker of Aurora.

Gary Kramer is currently the Chair of the Litigation Practice Group at Berenbaum Weinshienk P.C. in Greenwood Village, where he focus on complex probate and domestic relations litigation. Ben L. Leutwyler, III, is a partner at Mike Hulen, PC in Littleton. He has experience as a criminal prosecutor, criminal defense attorney, civil litigator, and in wills and estate planning. Michael W. Melito is a Senior Assistant Attorney General at the Colorado Attorney General’s Office, where he has been since 2005. Prior to that, he was a J.A.G. attorney in the U.S. Army. Peter F. Michaelson is an attorney at Hamre, Rodriguez, Ostrander & Dingess, P.C. in Denver. Since 1997, he has also operated his own practice in Westcliffe, Colorado, where he emphasizes civil litigation, mechanics’ liens and construction defects, business law, real property law, and probate matters. Teresa W. Seymour is a solo practitioner at Teresa W. Seymour LLC, where she practices criminal defense law. Shay K. Whitaker is an attorney at Whitaker & Associates in Aurora. She primarily practices criminal defense law.

Under the Colorado Constitution, the governor has 15 days in which to select two of the nominees for appointment to the district court bench. Comments regarding the nominees may be emailed to the governor at gov_judicialappointments@state.co.us. For more information about the vacancies, click here.

Tenth Circuit: High AEDPA Burden Precludes Reversal Where Error Not Clearly Shown

The Tenth Circuit Court of Appeals issued its opinion in Hancock v. Trammell on Tuesday, August 18, 2015.

Phillip Hancock’s ex-girlfriend was staying with Bob Jett when Hancock was asked to come pick her up. When he arrived at Jett’s house, the girlfriend was not there but Jett and another man, James Lynch, were. Later, Ms. Shawn Tarp arrived at the house and the four did meth together. An altercation ensued, and Jett, who was armed, tried to force Hancock into a large cage with Lynch’s help. Jett was swinging a metal bar at Hancock, and it may have hit his head. At some point during the scuffle, Hancock got the gun from Jett and shot both Jett and Lynch. Lynch collapsed and Hancock chased Jett out the back door, then shot him again. Tarp was hiding in a back room, and after the shots subsided she emerged, but Hancock did not shoot her. He calmly apologized to her for what she witnessed and asked her to wait a few minutes before leaving, which she did.

Hancock was charged with two counts of first-degree murder. He admitted that he shot the men, but asserted he did so in self-defense. The jury rejected his defense and found him guilty on both counts of murder. He was sentenced to death. He was unsuccessful in his direct appeal to the Oklahoma Court of Criminal Appeals (OCCA) and in post-conviction proceedings. He applied for a writ of habeas corpus from the federal district court, which denied his request, and he appealed to the Tenth Circuit. Four issues were certified for review: (1) whether the state court denied him due process by allowing the prosecution to elicit testimony about his prior conviction for manslaughter in which he asserted self-defense, (2) whether the state court misled the jury by giving unwarranted instructions on self-defense and allowing the prosecutor to make improper comments in closing, (3) whether Hancock’s trial counsel was ineffective for failing to request a jury instruction on the lesser-included offense of manslaughter, and (4) cumulative error.

The Tenth Circuit first addressed the issue of the 1982 manslaughter conviction. Hancock urged a right to habeas relief because the OCCA did not adjudicate the merits of his due process claim and it based its decision on an unreasonable factual determination. The Tenth Circuit held that Hancock failed to raise his due process claim in district court and therefore forfeited the argument. The Tenth Circuit noted, however, that even if the OCCA did not specifically mention Hancock’s due process claim, it unquestionably reviewed his claim on the merits. The Tenth Circuit continued that Hancock’s argument was invalid because the OCCA concluded Hancock waived his argument by eliciting evidence of the manslaughter conviction on direct examination.

Hancock also argued the OCCA mistakenly thought the state court had allowed the manslaughter evidence as impeachment evidence under Okla. Stat. tit. 12, § 2609(B), which governs impeachment with convictions over 10 years old. The Tenth Circuit noted “If the OCCA had misunderstood the basis for the district court’s ruling, as Mr. Hancock argues, the mistake would likely have constituted an unreasonable determination of fact and allowed us to consider the merits of the underlying constitutional claim,” but determined that Hancock had not met the heavy AEDPA burden of showing a factual misunderstanding. Hancock argued the state did not allow the evidence under § 2609(B); rather, he argued it either admitted the evidence as “other act” evidence under Okla. Stat. tit. 12, § 2404(B), or as a form of relevant evidence. The Tenth Circuit noted that although the state court did not rely on § 2609(B), the OCCA clearly did, but it did not say whether it thought the state court had relied on § 2609(B) also. The Tenth Circuit remarked that it could reach the merits of the constitutional claim only if the OCCA rested its decision on a mistaken factual view of the record. The majority wrestled with the OCCA opinion and decided that although it was not clear on which section the OCCA based its opinion, Hancock failed to meet his high burden to show that the OCCA’s view was mistaken. The dissent, penned by Judge Lucero, strongly disagreed with the majority’s conclusion, finding that the OCCA’s opinion was incorrect and its error substantially influenced Hancock’s due process rights. Judge Lucero would have reversed and remanded on this point.

The Tenth Circuit turned its attention to Hancock’s argument that the state court erred by limiting the self-defense instruction and allowing the prosecutor to make improper closing remarks based on the limited instruction. At trial, the court instructed the jury on self-defense and the “aggressor” exception. Hancock argued there was no evidentiary basis for three parts of the instructions: (1) self-defense is not available for a person who voluntarily enters into combat, (2) a person can regain the right to self-defense if he withdraws from the confrontation, and (3) the use of words alone cannot turn someone into an aggressor. The Tenth Circuit found no error. The Tenth Circuit reviewed Hancock’s claim that the evidence was insufficient to justify these portions of the instructions and disagreed, finding the evidence showed that there was mutual combat between Jett and Hancock, at some point Jett turned away from Hancock and he chased after Jett to shoot him again, and Jett was provoking Hancock with his words. The Tenth Circuit similarly rejected Hancock’s argument that the prosecutor’s closing remarks about Jett running away were improper, finding Hancock forfeited this argument by failing to raise it in his habeas petition.

Next, the Tenth Circuit turned to Hancock’s argument that his trial counsel was ineffective because he failed to request an instruction on criminal attempt manslaughter. Because the trial counsel had requested and received a heat of passion manslaughter instruction, the Tenth Circuit found it was a reasonable trial strategy for counsel to have chosen the heat of passion instruction over the criminal attempt instruction, which was less applicable to the facts of Hancock’s case. The Tenth Circuit disagreed with Hancock that his counsel’s decision constituted deficiency.

Finally, the Tenth Circuit found no cumulative error. The Tenth Circuit found no constitutional violations and lack of prejudice on Hancock’s ineffective assistance claims. Hancock also requested to expand his certificate of appealability, but the Tenth Circuit denied his motion, finding that no reasonable jurist could find the district court’s conclusions wrong.

The Tenth Circuit affirmed Hancock’s convictions and sentence. Judge Lucero wrote a thoughtful and provocative dissent.

Tenth Circuit: Unpublished Opinions, 11/12/2015

On Thursday, November 12, 2015, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

Toler v. Troutt

United States v. Orduno-Ramirez

Lee v. Colvin

Patterson v. Santini

Cory v. City of Basehor

Kreso v. McDonald

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.