Moses v. Romero

• Decision Date: 12 May 2020
• Docket Number: Civil Action No. 19-cv-01167-CMA
• Parties: LENNIE D. MOSES, Applicant, v. MIKE ROMERO, Warden of the Fremont Correctional Facility, and PHIL WEISER, Attorney General for the State of Colorado, Respondents.
• Court: U.S. District Court — District of Colorado

LENNIE D. MOSES, Applicant, v. MIKE ROMERO, Warden of the Fremont Correctional Facility, andPHIL WEISER, Attorney General for the State of Colorado, Respondents.

Civil Action No. 19-cv-01167-CMA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

May 12, 2020

ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS

Applicant Lennie D. Moses is a prisoner in the custody of the Colorado Department of Corrections. Through counsel, Applicant filed a First Amended Verified Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (the "Application") on April 21, 2019. (Doc. # 2.) The Application asserts eleven claims for relief, challenging the validity of Applicant's convictions in Arapahoe County District Court case number 03CR3359—a case charging him with various crimes related to four "purse snatchings" in October of 2003. (Id. at 7-10.) Respondents filed an Answer on October 15, 2019. (Doc. # 24.) Despite being granted five extensions of time, Applicant has not filed a reply to the Answer. (See Doc. # 25, 27, 29, 31, 33, and 34.) Because the deadline for Applicant to file a reply expired on March 12, 2020, and Applicant has not communicated with the Court in any manner since February 12, 2020, the Court will proceed to address the merits of the Application. For the reasons below, the Court denies the Application and dismisses this case with prejudice.

I. BACKGROUND

The Colorado Court of Appeals, in addressing Applicant's combined direct appeal and postconviction appeal, recounted the case background as follows:

This case has an unusual procedural history. We recount that history to the extent necessary to provide context for the issues on appeal.

Moses was arrested and charged in connection with four purse snatchings that occurred in Aurora in October of 2003: the first near a Safeway on October 19, the second in the parking lot of Costco on October 27, and the third and fourth on October 31, near a doctor's office and a King Soopers, respectively. In all four robberies, the perpetrator grabbed the victim's purse, then ran back to his vehicle and drove away. In two of the robberies, the victims chased the perpetrator back to his vehicle in an attempt to retrieve their stolen purses, and then sustained injuries when they were thrown off the accelerating vehicle.

Moses was traced to the crimes because vehicles that matched those used in the purse snatchings — a small, tan pickup and a maroon car — were registered to Moses's wife.

Moses was charged with two counts of aggravated robbery, two counts of robbery, one count of first degree assault, one count of second degree assault, and two counts of theft from an at-risk adult. His first trial ended in a mistrial, after a juror claimed to know Moses's alternate suspect, 'Spook.' After a second trial, the jury convicted Moses of all charges.

Moses appealed, but most of his claims could not be reviewed because his appellate counsel failed to provide the record of the trial court proceedings. A division of this court affirmed Moses's judgment of conviction. See People v. Moses, (Colo. App. No. 06CA1558, Nov. 20, 2008) (not published pursuant to C.A.R. 35(f)).

Moses then sought postconviction relief. His first postconviction counsel failed to timely file a Crim. P. 35 motion, so Moses filed a pro se Rule 35(c) motion that was later supplemented by second postconviction counsel.

After a hearing, the postconviction court rejected Moses's claims of ineffective assistance of trial counsel. However, the court found that appellate counsel was ineffective and, as a remedy, it granted Moses thissecond appeal.

Moses now raises seven claims of error related to his second trial: (1) the court improperly denied his motions to suppress a witness's identification and statements Moses made during a pre-arrest interview; (2) the evidence was insufficient to support his convictions; (3) the court improperly denied his Batson challenge; (4) the court erred in allowing a detective to answer two juror questions; (5) the court abused its discretion when it refused to qualify his expert on cross racial eyewitness identification; (6) the court erred in denying Moses's instruction on eyewitness identification; and (7) the court erred in failing to declare a mistrial when Moses failed to appear on the final day of trial.

He also challenges the postconviction court's denial of three of his claims of ineffective assistance of trial counsel. Those claims alleged that counsel was ineffective in (1) failing to call the juror who purportedly knew 'Spook,' the alternate suspect; (2) failing to diligently investigate the qualifications of the endorsed eyewitness identification expert; and (3) waiving closing argument.

(Doc. # 9-4 at 2-4.) Ultimately, the Colorado Court of Appeals affirmed Applicant's convictions and the trial court's denial of postconviction relief. (Id. at 42.) The Colorado Supreme Court denied certiorari. (Doc. # 9-5.) Accordingly, the decision by the Colorado Court of Appeals (Doc. # 9-4) is the last state court to decide Applicant's claims on the merits, making it the operative order for federal habeas review. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

In this federal habeas action, Applicant raises eleven claims for relief—ten of which remain.¹ (Doc. # 2, 19.) As discussed below, Respondents counter each of the ten claims for habeas relief, contending that each should be denied and the Application dismissed with prejudice. (Doc. # 24.) The Court will provide the standard for federal habeas review followed by a discussion of Applicant's ten remaining claims.

II. STANDARD OF REVIEW

"The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter 'adjudicated on the merits in State court' to show that the relevant state-court 'decision' (1) 'was contrary to, or involved an unreasonable application of, clearly established Federal law,' or (2) 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Wilson, 138 S. Ct. at 1191 (2018) (citing 28 U.S.C. § 2254(d)). Each of Applicant's ten remaining claims was "adjudicated on the merits in State court." It is well-settled that "when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion[,] a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable." Id. Applicant bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

III. DISCUSSION

A. Claim One: Out-of-Court Identification.

Applicant first claims that his Fifth, Sixth, and Fourteenth Amendment rights were violated when the "trial court improperly denied [his] motions to suppress a witness's out of court identification." (Doc. # 2 at 7.) At trial, Applicant defended against the criminal charges by arguing that he had been mistakenly identified as the purse snatcher. (Id. at 5.) Here, Applicant alleges that "[o]ne of the victims interviewed by police, Ms. Diaz, identified the assailant as having a 'crater face', or acne scars. Based in part on that description, police put together a photo array that included sixindividuals. Only one photo of an individual with what could be reasonably described as a crater face, which was that of Mr. Moses, was included. When confronted with the array, Ms. Diaz predictably chose Mr. Moses as the assailant." (Id. at 5.) Applicant concludes the photo array was unduly suggestive and, as a result, the out-of-court identification should not have been admitted as evidence. (Id.)

Respondents counter that the Colorado Court of Appeal's "application of the relevant Supreme Court case law was not unreasonable because it followed an approach taken by federal appellate courts in determining whether photo arrays are impermissibly suggestive - that is, considering whether the suspects in the photos generally appear similar in terms of age, race, facial hair, and other factors." (Doc. # 24 at 11-18.)

A challenge to the constitutionality of a pre-trial identification procedure requires a two-step analysis. First, the court determines whether the identification procedure was impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 198 (1972). Second, if the identification was impermissibly suggestive, the court must further determine whether, under the totality of the circumstances, the suggestive procedure created a "substantial likelihood of misidentification" or was reliable. Biggers, 409 U.S. at 201. "[T]he admission of testimony concerning a suggestive and unnecessary identification procedure does not violate due process so long as the identification possesses sufficient aspects of reliability." Manson v. Brathwaite, 432 U.S. 98, 106 (1977). "[R]eliability is the linchpin in determining the admissibility of identification testimony. Id. at 114.

The state appellate court did not apply law that was contrary to clearly established United States Supreme Court authority. (Doc. # 9-4 at 11-16.) In discussing the applicable legal standard, the Colorado Court of Appeals cited Bernal v. People, 44 P.3d 184, 191 (Colo. 2002)—a Colorado Supreme Court decision that recounts the United States Supreme Court's line of cases resulting in the two-step analysis for determining whether a police-arranged identification procedure satisfies due process. Bernal, 44 P.3d at 191 (citing Simmons v. United States, 390 U.S. 377 (1968), Neil v. Biggers, 409 U.S. 188 (1972); Manson v. Brathwaite, 432 U.S. 98 (1977).

Nor did the state appellate court unreasonably apply the governing precedent. It found the photo lineup was not "unduly suggestive" because "all of the individuals were African-American men 'of approximately the same darkness of complexion,' all of the individuals had short hair, and three of the people in the array were wearing very similar shirts."...