215 F.3d 1107 (10th Cir. 2000), 98-1430, Romero v. Furlong
| Citation | 215 F.3d 1107 |
| Party Name | EUGENE ROMERO, Petitioner-Appellant, v. ROBERT FURLONG and KEN SALAZAR, Attorney General, State of Colorado, Respondents-Appellees. |
| Case Date | June 13, 2000 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
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Appeal from the United States District Court for the District of Colorado (D.C. No. 95-WM-1149)
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Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the briefs) for Petitioner-Appellant.
Clemmie Parker Engle, Senior Assistant Attorney General, Appellate Division (Ken Salazar, Attorney General, with her on the brief) for Respondents-Appellees.
Before SEYMOUR, Chief Judge,MCKAY and EBEL, Circuit Judges.
EBEL, Circuit Judge.
A Colorado state court jury convicted Petitioner-Appellant Eugene Romero of second degree burglary and theft over $300. Pursuant to the state's habitual offender statute, Mr. Romero was sentenced to life in prison. After unsuccessfully challenging his conviction and sentence on direct appeal and state collateral review, Mr. Romero filed the present habeas corpus petition in federal court attacking the constitutionality of his conviction and his classification as a habitual offender. The federal district court denied his petition. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 & 2253 and AFFIRM.
BACKGROUND
In 1986, Appellant was convicted in Colorado state court of burglary and theft following a jury trial. The jury also determined, in a bifurcated proceeding, that Appellant was a "habitual criminal" under Colorado law because he had previously been convicted of five prior felonies. Based on this finding, the trial court imposed the sentence of life imprisonment.
Ms. Claudia Jordan of the Colorado Public Defender's Office initially represented Appellant on all the charges (i.e., the burglary/theft charges and the habitual criminal charges). Prior to trial, however, the prosecution announced that it intended to call Appellant's former attorney, Mr. Richard Davis, as a witness during the habitual criminal phase of the trial. Mr. Davis had represented Appellant in connection with a 1975 charge to which Appellant pled guilty. Mr. Davis was also a public defender and worked in the same office as Ms. Jordan. Ms. Jordan became concerned that the prosecution's intention to call Mr. Davis as a witness against Appellant created a potential conflict of interest. After holding a hearing on the issue, the trial court decided to appoint private counsel to represent Appellant during the habitual criminal phase of the trial.
Shortly before trial, the state offered Appellant a sixteen-year sentence in exchange for a guilty plea. Appellant rejected the offer, which would have allowed him to serve only eight years in prison, in order to "have his day in Court." Ms. Jordan informed Appellant that she thought he would likely be convicted at
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trial and advised him to accept the offer. At that time, Ms. Jordan expressed her opinion to the court that Appellant "is upset because I have given him an honest assessment" of his situation. Appellant insisted on going to trial, was convicted, and received a life sentence.
On direct appeal to the Colorado Court of Appeals, Appellant claimed he was denied effective assistance of counsel because Ms. Jordan had an actual conflict of interest as a result of the government's announced intention to call Ms. Jordan's colleague, Mr. Davis, in the habitual criminal proceedings.1 See People v. Romero, 767 P.2d 782, 783 (Colo. App. 1988). Appellant also claimed that three of the five prior guilty pleas supporting the habitual criminal adjudication were not knowing and voluntary and were therefore obtained in violation of his constitutional rights. See id. at 786. The court rejected both of these claims and affirmed the convictions, the habitual criminal adjudication, and the sentence. See id. at 787.
In 1989, Appellant filed a motion for post-conviction relief in state district court, asserting a variation on his earlier conflict of interest claim. Specifically, this time Appellant argued that his belief that Ms. Jordan was under a conflict of interest made it impossible to trust her, and that he was therefore denied effective assistance of counsel based on the complete breakdown of their attorney-client relationship. The state asserted that Appellant's new ineffective assistance claim was procedurally barred because on direct appeal he had raised an ineffective assistance claim predicated on an asserted actual conflict of interest of counsel. However, the state court determined there was no procedural bar and held an evidentiary hearing on the issue. At the evidentiary hearing, the court heard testimony from both Ms. Jordan and Appellant. Following the hearing, the court ruled that Appellant had not been denied effective assistance of counsel. Appellant appealed this ruling to the Colorado Court of Appeals. However, the Court of Appeals refused to consider the merits of Appellant's new ineffective assistance of counsel claim because Appellant had raised an ineffective assistance claim on the direct appeal and, therefore, this claim was procedurally barred.
In 1995, Appellant filed a federal habeas petition pursuant to 28 U.S.C. § 2254, attacking the constitutionality of his conviction and arguing that he was denied effective assistance on three theories: imputed disqualification of Ms. Jordan; actual conflict of interest on the part of Jordan; and complete breakdown of the attorney/client relationship. Appellant also challenged his habitual criminal classification, claiming that his prior convictions in 1973, 1975, and 1980 were obtained unconstitutionally. The magistrate judge found that Appellant had been denied effective assistance of counsel due to the complete breakdown of his relationship with his attorney and therefore recommended that the district court grant Appellant's habeas petition with respect to his conviction. The magistrate further determined that Appellant's 1973 conviction had been obtained unconstitutionally, but recommended that the district court deny habeas relief from the habitual criminal adjudication (assuming the district court did not agree to grant habeas relief on the underlying conviction) because four of Appellant's previous convictions remained valid and, under Colorado law, only three felony convictions were necessary for classification as a habitual criminal. The district court declined to adopt the magistrate's recommendation in connection with the ineffective assistance of counsel claim but adopted the remaining recommendations and denied habeas relief, both with regard to the conviction and the sentence.
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Appellant now appeals the judgment of the district court. Appellant asserts that he was denied effective assistance of counsel based on the total breakdown in communication between Ms. Jordan and himself, and he further argues that the district court erred in not granting him a hearing on the matter. In addition, Appellant contends that the district court erred in failing to grant habeas relief as to his life sentence predicated on the habitual criminal adjudication because his 1973, 1975, and 1980 convictions were not knowing and voluntary.
DISCUSSION
Appellant filed his § 2254 petition in the federal district court in May of 1995. As a result, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, does not apply to the merits of his claims.2 See Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997).
As a federal court conducting a review in habeas of state court determinations, our role is secondary and limited. Although we review legal conclusions de novo, a state court's factual findings are entitled to a presumption of correctness. Mixed questions of law and fact are reviewed de novo, but the presumption of correctness will continue to apply to any findings of fact underlying mixed questions.
Castro v. Ward, 138 F.3d 810, 815-16 (10th Cir. 1998) (citations and internal quotation marks omitted). The substance of our review is confined to whether Appellant is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1994).
I. Ineffective Assistance
Before addressing Appellant's ineffective assistance arguments, we note that this case presents a number of complex issues concerning the applicability of Colorado's procedural bar to these claims. We need not and do not address these issues, however, because the case may be more easily and succinctly affirmed on the merits. See Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991) ("In the present case, it is in the interest of judicial economy for this court to hear this cause in spite of the unresolved issues of exhaustion and procedural default."); cf. United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994) (addressing a 28 U.S.C. § 2255 petition and declining to address the procedural bar issue because the claim would fail on the merits in any event).
The core of Appellant's ineffective assistance claims is that he was denied constitutionally effective counsel due to the complete and total breakdown in communication between him and his trial counsel, Ms. Jordan. We have recognized that "[a] complete breakdown in communication between an attorney and client may give rise to [a presumption of ineffectiveness]." United States v. Soto Hernandez, 849 F.2d 1325, 1328 (10th Cir. 1988). Appellant also complains that the district court should have held a hearing to investigate the alleged breakdown, and, alternatively,3
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that the state record itself demonstrates that such a breakdown occurred. We find that neither argument has merit.
A. Hearing
We disagree with Appellant's claim that the district court should...
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