Ashley v. Trani

• Decision Date: 25 November 2014
• Docket Number: Civil Action No. 14-cv-00239-REB
• Parties: MARK R. ASHLEY, Applicant, v. TRAVIS TRANI, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

MARK R. ASHLEY, Applicant, v. TRAVIS TRANI, Warden, and THE ATTORNEY

GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 14-cv-00239-REB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 25, 2014

Judge Robert E. Blackburn

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

Blackburn, J.

This matter is before me on the pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("the Application") [#4]¹ filed by Applicant Mark R. Ashley. Respondents filed an Answer [#21], and Mr. Ashley filed a Reply [#26]. After reviewing the pertinent portions of the record in this case, including the Application, the Answer, the Reply, and the state court record, I conclude that the Application should be denied and the case dismissed with prejudice.

I. BACKGROUND

Mr. Ashley is challenging the validity of his conviction and sentence in Denver District Court case number 02CR1772. The relevant factual background and procedural history were discussed comprehensively by the Colorado Court of Appeals on appealfrom the denial of a postconviction motion.

In October 2001, Ashley approached the female victim, who was using a pay phone outside a convenience store. He put a knife to her throat and forced her to walk behind the store to an unlit area. The victim told Ashley she would give him whatever money she had if he would let her go. Ashley took $20 from the victim and sexually assaulted her.

After the assault, the victim contacted the police, who took her to the hospital where medical personnel prepared a rape kit, including swabs of her vagina and mouth. The police also collected her clothing.

The police did not find any DNA evidence from the swabs, but four months after the assault, it identified semen on the victim's underwear. The lab tested the semen and found DNA. The police compared the DNA with profiles stored in the national Combined DNA Index System (CODIS) and found that it was consistent with Ashley's DNA. Ashley's DNA was in CODIS because he had four prior felony convictions, including a conviction for sexual assault.

After the DNA identification, an investigator compiled a photographic lineup including a picture of Ashley. The victim identified Ashley without hesitation from the lineup. This was the third photographic lineup she had reviewed. In the two previous lineups (which did not include Ashley), she did not identify anyone as her assailant.

In March 2002, Ashley was charged with sexual assault, three sexual assault aggravators, second degree kidnapping, and aggravated robbery.

The trial court appointed the Office of the Public Defender to represent Ashley, and Cyrus Callum was selected to be the lead attorney on the case. Sometime prior to trial, Karen McGovern from the Public Defender's Office joined Callum as co-counsel for Ashley.

At a motions hearing in August 2002, Callum requested (and was granted) a continuance of the trial because he had still not received the DNA evidence from the police lab. In November 2002, during another motionshearing, Ashley personally addressed the court and made the following oral "Motion for Ineffective Counsel":

Ashley: Your Honor, . . . I'm requesting Motion for Ineffective Counsel. . . . Mr. Callum is not taking enough interest in this case on my behalf. He has promised to correspond with me through the mail when I was in DOC [Department of Corrections] facility, which he did not do. Promise me visits in the county jail to discuss discovery from the motion filed two months, which, once again, he has not corroborated with me in any way whatsoever.

Your Honor, 'till this date Mr. Callum has made no attempt to meet or speak with me concerning the issues I'm faced with. I am pleading with the Court that the Court will assist me with counsel that can better represent me and defend me in receiving a fair

trial.

The Court: I vaguely remember we went through this once before and I'm going to deny your motion. I know Mr. Callum, because of his motion, to some extent, I guess, [is] still trying to get everything together, and I know he also, last time, said he had somebody who was working with an expert on DNA or somebody who has more knowledge on that particular issue . . . .

Ashley: I was supposed to start trial. Shouldn't that stuff already been here already, ready to go? . . . I have to waive my right [to a speedy trial] because, you know, you guys ain't ready or whatever.

Callum: Let's go to trial. Let's go to trial.

Ashley: I don't want to go to trial with you.

Callum: I don't want to go to trial with you neither, but let's go to trial.

Ashley: Conflict of interest. . . . . He just said, I don't want to go to trial.

Callum: Not under this circumstance, Judge. . . . [W]e just got the [DNA evidence] Thursday. . . . It takes them time to put a case together that has DNA. . . . If he wants to go to trial, it's his right, but I don't want to. And if that's what he's complaining about, I'm only -

Ashley: I'm complaining about no communication. . . .

Callum: At this point, we have not been in a place where we can sit down and talk because we have not had the DNA stuff until Thursday.

Ashley ultimately agreed to waive his right to a speedy trial so that his counsel could investigate the DNA evidence.

Approximately two months before trial, Callum filed a motion to exclude the DNA evidence, challenging the reliability of the testing and results. He also filed a motion to suppress evidence of the victim's identification of Ashley from the photographic lineup. The trial court denied these motions at a pretrial hearing in January 2003.

The trial court held a final pretrial status conference on February 24, 2003, the day before trial began. The transcript of that pretrial conference reflects that McGovern advised the court that one week earlier, she met in private with Ashley to notify him of and discuss a plea offer from the prosecution. Ashley told the court that he "just walked out" of the meeting with McGovern because he was angry that McGovern was not concerned about him. McGovern confirmed that Ashley had walked out of the meeting. However, at the postconviction hearing in 2010, Ashley testified differently, stating that, at the meeting in question, McGovern never told him that there was a plea offer, and that she had become angry and walked out on him.

At the conference the day before trial, Ashley also complained again to the trial court regarding his counsel:

Ashley: [M]y public defenders are not . . .representing me. I have not spoke to none of them at all. They have not seen me. They have made - they both made incomplete statements to me. [Callum] stated in November he didn't have no desire to deal with this case. [McGovern] came to see me last week and . . . I was talking about the issues of my life and she said straight up, she didn't care. You know, . . . that's impropriety statements they both have made against me.

Callum: Don't have a comment.

The Court: What are you asking for?

Ashley: I'm asking for alternative counsel.

The Court: Not going to do that. The other alternative, you represent yourself.

Ashley: . . . I can't represent myself. I'm not saying that.

The Court: Then we'll start trial tomorrow morning and if ya'll [sic] ready to proceed?

Ashley: Your Honor, how do you start trial with somebody who - I have been locked up for a year now. They haven't come to see me, haven't came up with defense strategy or nothing.

The Court: Well, I'm not going to discuss your case. That's not -

Ashley: . . . I'm not asking you to discuss it. I'm just saying . . . I have a case here -

The Court: I - you can raise that on appeal. I'm not going - what you told me is you don't like how they prepared your case.

Ashley: I'm not saying that. I'm saying they don't like me or they're the ones with the conflict of interest.

The Court: Do ya'll have a conflict of interest?

McGovern: I don't think so.

The court indicated that trial would proceed the next day.

On the first day of trial, the court informed the jury venire of the charges and Ashley's not guilty plea. Prior to voir dire and outside the presence of the venire, Ashley once again voiced concerns about his representation:

[Ashley]: I would like to say I don't agree in which way my public defenders are taking this case. And also . . . I would like to file, a motion to dismiss.

The Court: . . . I believe Mr. Ashley . . . this motion relates to the same motion that was made on the record yesterday, and sounds very similar to the issues you brought up on that day. . . .

[Ashley]: [T]his pertains to the same thing.

The Court: Sure. Anything else that you'd like to say at this time?

[Ashley]: No, sir.

The Court: Okay. Your motion is denied.

As pertinent to this appeal, during his opening statement, Callum stated as follows:

[W]e're not going to get up here and say that [Ashley] wasn't there. His semen was on her panties. . . . [A]nd you'll see a photograph of the driveway with some semen on the driveway. So we're not going to come in here and say he wasn't there. He was there. But there was no intercourse. None. . . .

He may have attempted sexual assault, but you have to consider where the semen is. . . .

You said that you could listen to the evidence and could convict a person of what they did, and only what they did. . . . [W]e'll be asking you to do that. To convict him of only what he did, and no more.

Ashley did not advise the trial court that he disagreed with this trial strategy.

During trial, a forensic analyst testified for the prosecution that the semen found in the victim's underwear contained DNA consistent with Ashley's, and that the probability that the semen belonged to someone other than Ashley was less than 1 in 57,724 quadrillion. The analyst further testified that the genetic material found on the pavement at the scene also matched Ashley's, and that the probability that it belonged to someone else was less than 1 in 211,000. A police officer then testified that the victim had positively identified Ashley from a photographic lineup.

D

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