Meadows v. Lind

• Decision Date: 07 May 2021
• Docket Number: No. 19-1320,19-1320
• Parties: Kennith MEADOWS, Petitioner - Appellant, v. Randy LIND, Warden, Respondent - Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

996 F.3d 1067

Kennith MEADOWS, Petitioner - Appellant,

v.Randy LIND, Warden, Respondent - Appellee.

No. 19-1320

United States Court of Appeals, Tenth Circuit.

FILED May 7, 2021

Meredith Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Appellant.

Ryan A. Crane, Senior Assistant Attorney General, Criminal Appeals Section (Philip J. Weiser, Attorney General, with him on the brief), Office of the Attorney General for the State of Colorado, Denver, Colorado, for Appellee.

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.

TYMKOVICH, Chief Judge.

At the beginning of Kenneth Meadows's trial on sex offenses held in a small, rural Colorado district court, the trial judge excused several hard-of-hearing potential jurors because amplification equipment was not available. Meadows's trial lawyer objected to the excusals, but chose not to seek a continuance of jury selection to obtain equipment from a different location. Meadows was convicted.

On direct appeal in state court, Meadows raised the juror dismissal issue but that argument was rejected by the Colorado Court of Appeals. See Aplt. App., Vol. I at 143–47. The Colorado Supreme Court denied certiorari review, and Meadows was unsuccessful in state post-conviction collateral proceedings. Meadows then challenged his conviction by filing a petition for federal habeas corpus relief under 28 U.S.C. § 2254. In his petition, Meadows argued his attorney's performance at the state trial amounted to constitutionally ineffective assistance of counsel. Meadows claimed his counsel had been ineffective by failing to adequately object to the excusal of, or seek accommodations for, hard-of-hearing jurors. The district court denied Meadows's petition.

We agree with the district court that Meadows is not entitled to habeas corpus relief on his ineffective-assistance-of-counsel claim. We conclude that (1) Meadows's trial counsel was not constitutionally ineffective, and (2) Meadows failed to show any actual prejudice resulting from his trial counsel's performance because he provided no reason to believe the excusal of the jurors resulted in a fundamentally unfair trial.

I. Background

A. State Court Proceedings

In 2008, Meadows was charged with three state sex offenses related to conduct involving his daughter. He exercised his right to a jury trial, which was held in Jackson County, Colorado. A public defender with five years of experience represented Meadows at trial.

During voir dire, it became apparent that several jurors were having difficulty hearing the questions. After some inquiry, the judge decided to dismiss a juror who was hard of hearing and suffering from sleep apnea

, citing concerns that the juror might fall asleep in court. The judge subsequently dismissed another hard-of-hearing juror specifically because of the juror's difficulty hearing the proceedings. When the judge asked if there were any objections, Meadows's attorney spoke up.

[Counsel]: Judge, do we not have some sort of amplification devices that we could assist with—

Clerk: Not here.

The Court: Remember where you are ... we do not have that here. I'm sure they do down in Fort Collins, but we don't have it available, and I'm not sure I can get it here in a reasonable time. We do have some assistance that's available in other parts of the district, probably, but not right here.

Trial Tr., Vol. I at 75–76. When the court dismissed yet another hard-of-hearing juror, Meadows's attorney formally objected.

[Counsel]: Well, Judge, I would object. I understand we don't have the equipment here, but this is not the first. I think there's another gentleman who indicated he had a similar concern as well. And I think we have the obligation to provide these folks the necessary equipment so that they can serve as jurors if needed. So—

The Court: I understand, Counsel, but I'm not sure we can get that here within a reasonable time. I could recess, I suppose, and try to get it here tomorrow.

Id. at 79–80.

After the judge dismissed a third juror due to hearing difficulties, he noted a standing objection from Meadows's attorney but continued to voice skepticism about a technological solution:

The Court: All right. Unless there's an objection—And I—your objection would stand with regards to the equipment. I'm not sure the equipment would help us in these events. So the Court's going to go ahead and excuse the juror over the objections of the defense.

Id. at 82–83.

After dismissing another hard-of-hearing juror, the judge again noted the attorney's standing objection and said "I understand, but I'm not sure the equipment even would assist." Id. at 114–15. The prosecutor then offered to have one of her witnesses pick up assistive equipment prior to coming up for the trial. The judge was amenable to this, but continued to indicate he did not think such equipment could help.

The Court: Yeah, that would be fine, especially for tomorrow, but ... [m]y experience with that has not been that it's all that great. So I'm not convinced it will be of any assistance. So I'm going to excuse the juror and note my view; there is an obligation to assist, but at what point do you say, okay. I've been speaking as loud as I can and he's within about 4 feet of me and says he can't hear, and I don't think there's any equipment that going to fix that.

Id. at 115.

When yet another juror explained he suffered from tinnitus—a persistent ringing in the ears—the judge said "[l]et's hang on to you and see if we can get that equipment, see if that will help your situation." Id. at 116.

The next day, a juror indicated some difficulty hearing the proceedings. The judge asked if anybody had obtained assistive devices. The prosecution responded "[u]nfortunately, my witnesses are coming up late this afternoon, so it wouldn't have happened. So I apologize." Trial Tr., Vol. II, at 42. All told, the judge dismissed four jurors specifically because of their difficulty hearing.

After the petit jury was finally selected, the parties proceeded to trial. Meadows was convicted on all three of the sex offenses with which he was charged, supported in part by a written confession he had signed. He was given an indeterminate sentence, ranging between four years and life. Meadows brought a direct appeal in state court in 2012, arguing in part that the trial court had erred by failing to accommodate the hard-of-hearing jurors.

The Colorado Court of Appeals rejected these arguments, affirming the conviction. Likewise, the Colorado Supreme Court denied Meadows's petition for writ of certiorari in 2013.

Meadows then filed for post-conviction relief under Colorado Criminal Procedure Rule 35(a). Under Rule 35(a), state prisoners can obtain collateral review of the length of their sentences. While his Rule 35(a) motion was pending, Meadows also sought relief under Rule 35(c), which allows for collateral review of a state prisoner's underlying conviction.¹ The state court refused to consider his Rule 35(c) motion while his Rule 35(a) motion was still pending. When the state court eventually denied his Rule 35(a) motion, neither Meadows nor the court took any action to revive his Rule 35(c) motion.²

B. Federal Court Proceedings

Meadows then brought a pro se petition for federal habeas corpus relief under 28 U.S.C. § 2254, challenging his conviction. The district court appointed counsel to Meadows. Meadows then filed an amended petition focusing on his ineffective-assistance-of-counsel claim.

The district court held an evidentiary hearing on this claim. Meadows called three witnesses: his trial attorney and two other attorneys who testified as experts. At the hearing, Meadows's trial attorney recounted his decision making at the 2008 trial. He made reference to contemporaneous notes from the voir dire in which he identified the four hard-of-hearing jurors the trial court judge had dismissed and noted that their dismissal was a potential appellate issue. He also explained that after Meadows's conviction, he had filled out an appellate packet noting the dismissal of the jurors. He further testified that at the time of the trial, he knew he was able to seek a continuance or recess to try to get assistive devices for the jurors, yet he chose not to make such a request. He could not remember his rationale for this decision.

The two experts both gave their assessment of the trial attorney's performance during voir dire. They testified that his performance fell below the constitutional standard for counsel for several reasons. First, Meadows's attorney had failed to create an adequate record for appeal through his objections. His objection was general, but it should have been grounded in constitutional and statutory terms. And, according to the experts, even if Meadows's attorney was unaware of the relevant legal grounds for his objection, he should have done further research or contacted a supervisor for advice. Second, the experts faulted Meadows's attorney for doing nothing when the court offered to take a recess to look into the possibility of getting equipment to accommodate the hard-of-hearing jurors. They indicated that any reasonable attorney in his position would have pressed harder to get the equipment. They agreed that neither of these failures could be justified as strategic decisions.

Following the evidentiary hearing, the district court denied Meadows's petition on the merits. Applying the standard for ineffective assistance of counsel articulated in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court concluded (1) the attorney's performance as trial counsel had not been constitutionally deficient because, when confronted with the dismissal of hard-of-hearing jurors in the midst of voir dire, he objected to their dismissal and specifically raised the issue of obtaining assistive devices to the court, and (2) Meadows needed to prove...