Newmiller v. Raemisch

• Decision Date: 18 December 2017
• Docket Number: No. 16-1396,16-1396
• Citation: 877 F.3d 1178
• Parties: Todd NEWMILLER, Petitioner–Appellant, v. Rick RAEMISCH, Executive Director, Colorado Department of Corrections; Cynthia Coffman, Attorney General, State of Colorado, Respondents–Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

877 F.3d 1178

Todd NEWMILLER, Petitioner–Appellant,

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

No. 16-1396

United States Court of Appeals, Tenth Circuit.

FILED December 18, 2017

Gail K. Johnson, Johnson, Brennan & Klein, PLLC, Boulder, Colorado, for Petitioner–Appellant.

Ryan A. Crane, Senior Assistant Attorney General, Criminal Appeals Section (Cynthia H. Coffman, Attorney General, with him on the brief), Office of the Colorado Attorney General, Denver, Colorado, for Respondents–Appellees.

Before TYMKOVICH, Chief Judge, SEYMOUR, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

The genesis of this appeal is a murder committed during an altercation outside a strip club in Colorado Springs, Colorado. Petitioner Todd Newmiller and several of his friends went to the club to celebrate Mr. Newmiller’s birthday. After leaving the club, they had a fight with another group of men, during which Mr. Newmiller fatally stabbed Anthony Madril in the heart. Mr. Newmiller was then charged and convicted of second-degree murder, and sentenced to thirty-one years’ imprisonment. The Colorado Court of Appeals (CCA) affirmed his conviction and sentence. The Colorado Supreme Court denied certiorari review. Mr. Newmiller later challenged the constitutionality of his conviction under Colorado Rule of Criminal Procedure 35(c). After an evidentiary hearing, the state post-conviction court denied relief. The CCA affirmed the denial. And the Colorado Supreme Court again denied certiorari review.

Mr. Newmiller next sought habeas relief in federal district court pursuant to 28 U.S.C. § 2254. He argued his trial counsel were ineffective in violation of the Sixth Amendment because they failed to investigate, challenge, and rebut the prosecution’s expert medical testimony. The district court ruled trial counsel’s performance was deficient and the CCA’s conclusion to the contrary was an unreasonable application of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But the district court denied relief because Mr. Newmiller failed to show counsel’s performance was prejudicial. Mr. Newmiller now appeals. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.

To place our analysis in context, we begin with a robust overview of the facts. We then provide relevant procedural details, beginning with Mr. Newmiller’s trial in state court. Next, we summarize the proceedings before the state post-conviction court, that court’s ruling on Mr. Newmiller’s petition, and the CCA’s decision on appellate review. Last, we discuss the federal district court’s ruling denying habeas relief.

After completing our review of the factual and procedural history, we address the merits of the district court’s denial of habeas relief. Although we agree that Mr. Newmiller is not entitled to relief, we extend appropriate deference to the state court and thus leave undisturbed the CCA’s conclusion that trial counsel’s performance was not deficient. As a result, we do not reach the prejudice prong of the ineffective-assistance-of-counsel inquiry on which the district court’s denial of relief was based.

I. BACKGROUND

A. Factual History

Mr. Newmiller, his brother, Joel Newmiller, ¹ and their friends, Brad Orgill, Jason Melick, and Michael Lee (the Newmiller group), went to a strip club in Colorado Springs to celebrate Mr. Newmiller’s birthday. See People v. Newmiller , 338 P.3d 459, 461 (Colo. App. 2014). As members of the Newmiller group were leaving the club, they had an argument with another group of men also leaving the venue. Id. The other group consisted of Mr. Madril, Chisum Lopez, and Charles Schwartz (Mr. Madril’s group). Id.

"Both groups eventually left the club in separate vehicles. About a half block away, [Mr. Madril’s] group stopped its pickup truck in the middle of the street." Id. As the Newmiller group’s Jeep approached the pickup truck, Mr. Newmiller jumped out and ran toward the truck. Joel then parked the Jeep, and Mr. Orgill exited the vehicle, followed by Mr. Melick, Mr. Lee, and Joel. Mr. Lee testified at trial that at least one person from Mr. Madril’s group had exited the pickup truck and squared off to fight Mr. Newmiller. But Mr. Lee could not identify who that person was. He testified that he lost track of Mr. Newmiller early in the confrontation.

The two groups confronted each other, and at some point Mr. Madril was stabbed in the heart. Id. Mr. Madril and Mr. Orgill also engaged in a fight lasting "30 seconds to a minute." During that fight, Mr. Madril initially knocked Mr. Orgill to the ground. But Mr. Madril soon became "less ... resistan[t]" and actually fell down onto Mr. Orgill. Mr. Orgill testified that the fight "was over really quick."

According to the surviving participants, the entire incident lasted somewhere between a minute and a half and two minutes. Afterward, everyone fled the scene. Id. Mr. Madril’s group "headed to the hospital but pulled over when the 911 dispatcher told them to wait for an ambulance. [Mr. Madril] was transported to the hospital by ambulance and pronounced dead on arrival." Id.

The next day, Mr. Melick, a member of the Newmiller group, "learned that someone had been killed in the same area where the fight had occurred. He placed an anonymous phone call to the police and named [Mr. Newmiller] as the killer." Id. Police then arrested Mr. Newmiller. Id. A search of Mr. Newmiller’s person uncovered a knife. Id. "Forensic testing revealed a small amount of blood matching [Mr. Madril’s] blood on the blade of the knife." Id.

B. Trial

Mr. Newmiller was charged with and tried for second-degree murder. Id. "He did not testify at trial, but everyone else involved did. Although there were substantial inconsistencies in the testimony," the testimony and evidence established that no one saw Mr. Newmiller stab Mr. Madril or any of the participants with a weapon before or during the altercation. Id. The evidence also confirmed that Mr. Orgill fought Mr. Madril and established that Mr. Newmiller verbally argued with Mr. Lopez. Id. It was also "uncontested that [Mr. Newmiller] stabbed one of the truck’s tires right before [Mr. Madril’s] group drove away." Id.

As summarized by the CCA,

The prosecution’s theory of the case was that [Mr. Newmiller] stabbed [Mr. Madril] at the very beginning of the confrontation and [Mr. Madril] remained alive for several minutes after he had been stabbed. The prosecution had to establish that [Mr. Newmiller] stabbed [Mr. Madril] then because other than during the first few seconds after [Mr. Newmiller] and [Mr. Madril] left their respective vehicles, someone from [Mr. Madril’s] or [Mr. Newmiller’s] group saw either [Mr. Madril] or [Mr. Newmiller] at all times, and no one saw them near each other. The prosecution thus had to show that [Mr. Madril] lived for some time after he was stabbed, during which time he fought with [Mr.] Orgill.

In support of its theory, the prosecution offered testimony from Joel Newmiller ... , [Mr.] Melick, [Mr.] Orgill, and [Mr.] Lee. Joel testified that when [Mr. Newmiller’s] group got back in the Jeep after the fight, he became upset after seeing a cut on his brother’s ( [Mr. Newmiller’s] ) face. Joel testified that [Mr. Newmiller] attempted to calm him down by saying, "[d]on’t worry about it. I slashed their tire and I stabbed one of them." [Mr.] Melick also testified that Joel started "freaking out" because [Mr. Newmiller] had been hit; in response, [Mr. Newmiller] said to Joel, "[d]on’t worry. Don’t worry, I stabbed him." [Mr.] Melick testified that [Mr. Newmiller] then said to the other occupants of the vehicle, "I stabbed the guy, okay?" and "[y]ou guys don’t know nothing about this, okay?"

[Mr.] Orgill and [Mr.] Lee testified that they did not hear [Mr. Newmiller] say anything at that time about stabbing anyone; however, they both testified that when the three of them were at [Mr.] Orgill’s house later that night, [Mr. Newmiller] said something like he hoped he had not stabbed anyone or he thought he might have stabbed someone. [Mr.] Orgill, [Mr.] Lee, and [Mr. Newmiller] looked at [Mr. Newmiller’s] knife, but no blood was visible.

[Mr.] Orgill’s clothes were covered heavily in blood. [Mr. Newmiller] also had some blood on his clothing. As a result, both [Mr.] Orgill and [Mr. Newmiller] burned their clothes.

Id. at 461–62 (footnote omitted).

The prosecution also relied on the expert medical testimony of Dr. George Hertner and Dr. Donald Ritchey. Dr. Hertner is an emergency room physician who examined Mr. Madril when Mr. Madril arrived dead at the hospital. See id. at 466. Dr. Hertner testified he sees about one hundred trauma patients per year and at least ten patients per year who have a wound to the heart. Dr. Hertner explained death is not always instantaneous when an individual suffers a wound to the heart. And he averred that he has seen people stand and walk around after suffering a stab wound to the chest. He testified that it would not surprise him if a person could stay on his feet for one or two minutes after being stabbed in the heart, in part, due to adrenaline’s ability to mask the pain and temporarily compensate for blood loss.

As for Mr. Madril’s chest wound, Dr. Hertner described it as a "three-inch long laceration," i.e., "a big cut." He testified that he performed an ultrasound on Mr. Madril that showed Mr. Madril "had a large amount of blood in the left side of his chest and possibly around his heart," preventing him from having any cardiac or brain activity. "Basically," Dr. Hertner attested, Mr. Madril "bled out into his chest." Dr. Hertner explained that in this type of situation the blood inside the chest pushes against the lung and prevents the lung from expanding and the heart from beating. He further testified that how rapidly someone perishes after suffering this type of wound depends on several factors, including...