ORDER DENYING APPLICATION FOR A WRIT OF HABEAS CORPUS
R. Brooke Jackson, District Judge.
The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. ECF No. 1. The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a).
Applicant was convicted by a trial jury of enticement of a child, attempted sexual assault on a child, and indecent exposure. Pre-Answer Resp., ECF No. 15-2 (Appx. B) at 8-9. On direct appeal of Applicant's conviction, the Colorado Court of Appeals (CCA) summarized the underlying facts and proceedings as follows:
A twelve year-old boy alleged that, while he was waiting for a bus, defendant exposed himself, grabbed the boy by the thigh, and asked him to come to defendant's house.
Soon after the incident, the boy phoned the police and his stepmother about the incident and described defendant in detail, including defendant's physical appearance, clothes, and demeanor. The police apprehended defendant based upon the boy's description, and an officer drove the boy to the location where another officer was holding defendant. Upon arrival, the boy said, "that's him," and that he was "a hundred percent certain" that defendant was the man who assaulted him.
Defendant sought to suppress the victim's statements to police and his stepmother, arguing that the statements were hearsay and unreliable. The trial court overruled defendant's objections and allowed the statements pursuant to section 13-25-129, C.R.S. 2009. Defendant further sought to suppress the identification as unduly suggestive, which the trial court denied.
After he was convicted, defendant moved for the appointment of new counsel and postconviction relief based upon ineffective assistance of counsel pursuant to Crim. P. 35(c). Defendant alleged that his attorney engaged in unethical behavior and failed to call witnesses and present evidence that would have exonerated him. The trial court denied defendant's motions without an evidentiary hearing.
People v. Peterson, No. 08CA2103, 1-2 (Colo. App. Aug. 26, 2010) (unpublished).
Applicant was sentenced on August 22, 2008, to two indeterminate terms, one term is ten years to life, the other term is three years to life running consecutive to the ten year to life sentence. Applicant also was sentenced to a one-year jail term for indecent exposure to run concurrently with the two indeterminate terms. Pre-Answer Resp., ECF No. 15-2, App. B, at 7. Applicant filed both a direct appeal and a Colo. R. Crim. P. 35(c) postconviction motion. In the same order, entered on August 26, 2010, the CCA affirmed the conviction in the direct appeal and denied the Rule 35(c) motion. Id., ECF No. 15-4, App. D. Applicant petitioned for writ of certiorari; but the Colorado Supreme Court (CSC) denied the petition on November 15, 2010. Id., ECF No. 15-6, Appx. F. Applicant's conviction and sentence, therefore, were final on February 13, 2011, when the time for seeking review in the United States Supreme Courtexpired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999).
Applicant, acting pro se, filed this Application on November 17, 2011. He asserted three claims in the Application, including: (1) judicial misconduct by the trial court; (2) an unreasonable verdict not supported by the evidence; and (3) ineffective assistance of counsel.
On January 4, 2012, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file a Pre-Answer Response and address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses. Respondents filed a Pre-Answer Response on January 24, 2012. Applicant did not file a Reply. Respondents conceded in the Pre-Answer Response that the Application is timely, but they argued that Applicant did not exhaust his claims
This Court reviewed the Application and Pre-Answer Response and determined that Claims One and Two are procedurally barred. As for Claim Three, the Court refrained from determining if it is exhausted because neither Respondents nor Applicant provided a copy of the Colo. R. Crim. P. 35(c) postconviction motion, which included Applicant's ineffective assistance of counsel claims. Pursuant to the Court's order dismissing Claims One and Two and instructing Respondents to file an answer with respect to Claim Three, Respondents filed an Answer on May 4, 2012. Applicant complained that he did not receive a copy of the Answer, which subsequent to his complaint was resent to him by Respondents on May 30, 2012, and Applicant was given until July 5, 2012, to respond to the Answer. Although Applicant was given sufficient time to reply to Respondents' Answer, rather than replying, he elected to file two motions forsummary judgment that do not address Respondents' Answer or the issues raised in his Application. Nonetheless, the Court now has a copy of Applicant's Rule 35(c) postconviction motion. A review of the motion indicates that Applicant asserted the following ineffective assistance of counsel claims in his postconviction motion:
1) Unethical misconduct;
2) Lack of due diligence, perfunctory defense;
3) Failure to prepare, incompetent, and ignorant of the law;
4) Defense was formulated on day of trial;
5) Failure to investigate alibi;
6) Failure to have Mr. Rivera testify and call witnesses;
7) Failure to consult with Applicant about strategy and share discovery papers;
8) Failure to object to slanderous closing remarks by district attorney;
9) Conflict of interest; and
10) No objection to possible double jeopardy violation
See Resp., ECF No. 20-1 at 7-11.
In his opening brief on appeal he asserted as follows:
"In a Crim. P. 35(c) proceeding, the legality of the judgment and the regularity of the proceedings leading up to the judgment are presumed. The burden is on the movant to establish by a preponderance of the evidence the allegations of the motion for postconviction relief." People v. Hendricks, 972 P.2d 1041 (Colo. App. 1998). Postconviction relief may be sought pursuant to C.R.Cr. P. 35(c). There is a preference for trial courts to address the merits of a postconviction motion. White v. District Court, 766 P.2d 632, 635 (Colo. 1988). Nevertheless, "a court need not entertain a defendant's motion for postconviction relief when that motion is based upon the same or similar allegations that have been fully litigated in an earlier appeal or Crim. P. 35(c) motion." People v. Russell, 36 P.3d 92 (Colo. App. 2001) citing C.R.Cr.P. 35(c)(3).
A motion for postconviction relief must allege ultimate facts with particularity. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied 382 U.S. 1014, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966). Thus, "a defendant need not set forth the evidentiary support for his allegations in his Crim P. 35 motion; instead, a defendant need only assert facts, that if true would provide a basis for relief." People v. Brack, 796 P.2d 49, 50 (Colo. App. 1990). In fact, even though defendant's factual allegations seem unbelievable or improbable is not the test set forth in C.R. Cr. P. 35(c) in order to determine whether a hearing should be granted; instead, the defendant must be given an opportunity to support his allegations with evidence presented at a hearing. Roberts v. People, 158 Colo. 76, 404 P.2d 848 (1965) (Emphasis supplied).
Here, Defendant filed a pro se motion for postconviction relief on August 20, 2008. Vol. One, p. 106-118. In the detailed motion, Mr. Peterson alleged several grounds which required the vacation of his judgment of convictions. Specifically, Mr. Peterson stated that his trial lawyer had rendered ineffective assistance of counsel in giving Defendant a "perfunctory" defense, and further labored under a conflict of interest. Id.. P. 112, p.114-118. Additionally, counsel had failed to conduct a sufficient pretrial investigation which would have resulted in a reasonable probability that the outcome of the proceedings would have been different. Id., p. 113-118; see also Davis People, 871 P.2d 769 (Colo. 1994) citing Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
Initially, it should be noted, that Mr. Peterson's pro se pleading was detailed in its allegations and supporting case law. However, the facts asserted, alone, were sufficient to warrant relief. People v. Brack, supra; Roberts v. People, supra.
It was alleged that counsel did not spend any time with the Defendant in order to prepare for trial. Id., p. 115. This problem was demonstrated in counsel's failure to communicate and visit with Mr. Peterson to formulate a defense. Mr. Peterson alleged that his counsel visited him three times within a seven month period. Id., p.117. Mr. Peterson's repeated attempts to contact his attorney via telephone calls were unsuccessful. Id. Defense counsel did not call any witnesses Mr. Peterson had requested be subpoenaed for trial. Id. It was alleged that the Defendant's defense was formulated on the day of trial and counsel failed to call witnesses or obtain surveillance tapes which would have resulted in a different outcome had that evidence been presented to the jury. Id. In summary, Mr. Peterson believed his "case is riddled with shoddy investigation. Evidence was ignored." Id., p. 118.
Notwithstanding, Mr. Peterson alleged a conflict of interest existed between him and his court-appointed lawyer. Vol. One, p. 112. Defendant tried to address the court on the first day of trial. However, the trial court brusquelydismissed the attempts to address the issue. See
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