Ellis v. Raemisch

• Decision Date: 07 July 2017
• Docket Number: No. 15-1088.,15-1088.
• Citation: 872 F.3d 1064
• Parties: Mark Stephen ELLIS, Petitioner-Appellee, v. Rick RAEMISCH, Executive Director, Colorado Department of Corrections; Cynthia Coffman, Attorney General, State of Colorado, Respondents-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

872 F.3d 1064

Mark Stephen ELLIS, Petitioner-Appellee,

v.Rick RAEMISCH, Executive Director, Colorado Department of Corrections; Cynthia Coffman, Attorney General, State of Colorado, Respondents-Appellants.

No. 15-1088.

United States Court of Appeals, Tenth Circuit.

Filed July 7, 2017

Ryan A. Crane, Assistant Attorney General (Cynthia H. Coffman, Attorney General, with him on the briefs), Office of the Attorney General, Criminal Appeals Section, Denver, Colorado, for Respondents-Appellants.

Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for Petitioner-Appellee.

Before HOLMES, MATHESON, and MORITZ, Circuit Judges.

ORDER

This matter is before the court on the appellee's Petition for Panel Rehearing and/or Rehearing En Banc . We also have a response from the appellants. Upon consideration, the original panel grants panel rehearing in part and only to the extent of the changes made to page 1071–72 and footnote 2 of the attached revised opinion. The clerk is directed to file the revised decision nunc pro tunc to the original filing date of May 11, 2017.

The Petition for Panel Rehearing and/or Rehearing En Banc and the revised opinion were also transmitted to all the judges of the court in regular active service. As no judge on the original panel or the en banc court called for a poll, the request for rehearing en banc is denied.

HOLMES, Circuit Judge.

A jury convicted Mark Ellis of five felony offenses and one misdemeanor offense involving child sexual assault on his adopted daughter, V.E. Child sexual assault allegations against Mr. Ellis first arose during his contentious divorce from V.E.'s mother. At trial, defense counsel Rowe Stayton argued that Mr. Ellis had been falsely accused; specifically, he contended that V.E.'s vengeful mother was coaching her, and that V.E.'s sexual knowledge came only from admitted sexual abuse by her older brother.

After he was convicted, Mr. Ellis filed a motion for postconviction relief in Colorado state district court. He alleged that Mr. Stayton had been constitutionally ineffective for failing to interview and/or call to testify (1) an expert forensic psychologist who could testify about theories of family dynamics and childhood memory, and (2) several lay witnesses who could testify in particular about the Ellises' family dynamics when the allegations arose. The state district court denied relief. The Colorado Court of Appeals ("CCA") affirmed. Mr. Ellis never sought review of his ineffective-assistance claim in the Colorado Supreme Court ("CSC").

Mr. Ellis, now serving an indeterminate life sentence in the Colorado Department of Corrections, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the District of Colorado. He alleged ineffective assistance of trial counsel, among other claims. The federal district court determined that Mr. Stayton had been constitutionally ineffective and granted Mr. Ellis conditional habeas relief. First, the court concluded that Mr. Ellis had not failed to exhaust state remedies even though he never sought review of his ineffective-assistance claim in the CSC. Then, after ruling in Mr. Ellis's favor on the merits of his ineffective-assistance claim, the district court ordered the Colorado state respondents ("State") to retry Mr. Ellis within ninety days or be forever barred from pursuing further proceedings on the same charges.

The State now appeals from the federal district court's grant of habeas relief. The State argues that the district court erred in (1) finding that Mr. Ellis exhausted state remedies; (2) granting federal habeas relief on his ineffective-assistance claim; and (3) barring the State from retrying him, if they do not act to do so within ninety days. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse the judgment granting conditional habeas relief and remand with instructions to enter judgment denying relief. As we explain below, we conclude that Mr. Ellis adequately exhausted his ineffective-assistance claim, but that the district court erred in granting him conditional habeas relief on that claim. Any question as to the propriety of the district court's ninety-day retrial condition is effectively moot because we conclude that the district court should not have granted habeas relief in the first place. Therefore, we do not reach this retrial issue.

I

A

V.E., a foster child, began living with Mark and his then-wife, Kari Ellis, when she was two years old. When she was seven years old, in 1998, Mr. and Ms. Ellis adopted her. The sexual assault of which Mr. Ellis was convicted occurred when V.E. was approximately eight to ten years old, from 1999 to 2001.

In 2000, Kari Ellis filed for divorce after learning that her husband was having an affair. During the contentious divorce proceedings that ensued, V.E.'s older brother M.E. told his mother (i.e., Ms. Ellis) that his father had "screwed" V.E. Aplt.'s App. Vol. III, at 154. After M.E. told Ms. Ellis this, she hid a tape-recorder in her purse and asked V.E. whether "she had any secrets to tell [her] about anybody." Id. at 158. V.E. did not disclose any abuse. Because V.E. was not "telling [Ms. Ellis] anything," Ms. Ellis asked M.E. to "talk to [V.E.] and tell her it's okay to be honest with [Ms. Ellis]." Id. at 159. M.E. obliged and talked to V.E. alone. Afterward, Ms. Ellis talked to V.E. again, and this time, V.E. said "something about her dad tying her to the bed," "put[ting] a buzzer[ ] ... on her neck," and "put[ting] his hands down her pants a lot." Id. at 160. Ms. Ellis immediately reported these statements to the police.

More than six months after the police began investigating the possible sexual assault on V.E., lab results revealed semen on one of her blankets. Shortly thereafter, V.E. revealed for the first time that M.E. also had been sexually assaulting her. M.E. pleaded guilty to sexual assault on a child. He later testified, at his father's trial, that he "first had the idea[ ] [of sexually assaulting V.E.] after she told [him] what [their] father had been doing to her." Id. at 35 (M.E.'s Trial Test.).

At the time of Mr. Ellis's trial in 2002, Mr. Stayton had been working as a criminal defense lawyer for nearly twenty years. He specialized in child sexual assault cases and had handled probably "a couple hundred" of them. Aplt.'s App. Vol. VI, at 195, 197 (Stayton's Test. at Postconviction Hr'g). He had also interviewed "dozens, dozens of juries." Id.

In the months leading up to Mr. Ellis's trial, however, Mr. Stayton "ha[d] a lot of things on [his] plate that required [him] to be out of town." Id. at 277. First, Mr. Stayton's mother shot herself, and although she survived, her attempted suicide triggered a family fight over custody of Mr. Stayton's quadriplegic sister. Then, the month before Mr. Ellis's trial, Mr. Stayton's wife filed for divorce. Finally, during the week before and the week after Mr. Ellis's trial, Mr. Stayton was in trial for other cases.¹

At Mr. Ellis's trial, Mr. Stayton's theory of the case was that Ms. Ellis "despise[d]" Mark Ellis and that she "put this hatred over from her into the children." Aplt.'s App. Vol. II, at 32 (Opening Statement). Mr. Stayton presented this theory primarily through cross-examination of state witnesses. For example, he elicited from cross-examination of V.E. that she was angry at her father, that she did not like him, and that she felt closer to her mother. In addition, he elicited from cross-examination of V.E.'s eldest sister, Elizabeth Jefferson, that "[t]hese allegations have split the family up," and that while she "allied [her]self with [their] mother," her sister, Jessica Geer, "allied herself with" their father. Aplt.'s App. Vol. III, at 256 (Ms. Jefferson's Test.). Furthermore, Mr. Stayton elicited from cross-examination of M.E. that he was "probably one of the closest children to" his mother, that he had conversations with his mother about his parents' divorce, and that his mother "was very hurt by the divorce." Aplt.'s App. Vol. III, at 70, 71 (M.E.'s Test.). Mr. Stayton also elicited that M.E. was "angry at [his father] for what he was doing to [their] family," that he "dislike[d] [his] father a great deal," and that his sister, Jessica, "being close to her dad is the same as [him] being close to [their] mom." Id. at 56, 74. And Mr. Stayton elicited on cross-examination from both V.E. and M.E. that M.E. had been sexually assaulting V.E.

Mr. Stayton then called several witnesses for the defense. One was a forensic scientist who testified that the amount of Mr. Ellis's semen found on certain blankets and comforters in the Ellises' house—the only physical evidence in the case—was only "a small percentage of what would come from a human ejaculation," in "quantities that could be transferred, for example, if ejaculate got onto somebody's hands ... and you picked up an item." Aplt.'s App. Vol. IV, at 20 (Taylor's Trial Test.). Notably, during one bench conference, the trial judge observed that "[t]his is a very, very well fought case on both sides." Aplt.'s App. Vol. III, at 252–53.

Nevertheless, the jury convicted Mr. Ellis on all counts. On direct appeal, the CCA affirmed the convictions. See People v. Ellis , 148 P.3d 205 (Colo. App. 2006). The CSC subsequently denied Mr. Ellis's petition for a writ of certiorari.

B

In 2007 Mr. Ellis filed a motion for postconviction relief in Colorado state district court, alleging ineffective assistance of counsel and arguing that newly-discovered evidence warranted a new trial. Regarding ineffective assistance—the only claim before us now—Mr. Ellis argued that Mr. Stayton was constitutionally ineffective for failing to consult and/or call an expert forensic psychologist to testify about theories of family dynamics and childhood memory; for failing to consult and/or call several lay witnesses who could have supported the defense themes of parental alienation, witness coaching, and collusion;...