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Smith v. Archuleta

United States District Court, D. Colorado

December 1, 2015

MARLON L. SMITH, Applicant,
v.
LOU ARCHULETA, Warden, and JOHN SUTHERS, The Attorney General of the State of Colorado, Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE

This matter is before the Court on Applicant Marlon L. Smith’s Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (“Application”), ECF No. 1.[1]Respondents filed an Answer, ECF No. 37, on April 1, 2015. Applicant filed a Traverse, ECF No. 47, on July 17, 2015. After reviewing the pertinent portions of the record in this case including the Application, the Answer, the Traverse, and the state court record, ECF No. 38, the Court concludes that the Application should be denied and the action dismissed.

I. BACKGROUND

Applicant is challenging the validity of his conviction and sentence in State of Colorado Criminal Case No. 02CR3477. The evidence at trial indicated that Applicant barged into a home where his estranged wife was staying; where he shot and killed his wife and wounded two other occupants of the home. See People v. Smith, No. 03CA1273, 1 (Colo.App. Feb. 10, 2005) (direct appeal). The procedural background of Applicant’s criminal case was summarized in the Colorado Court of Appeals’ (CCA’s) opinion addressing his Colo. R. Crim. P. 35(c) postconviction motion as follows.

In 2002, defendant was convicted of first degree murder after deliberation, two counts of first degree assault with serious bodily injury, first degree burglary, three counts of felony menacing, and violation of a restraining order. On direct appeal, a division of this court affirmed the judgment of conviction. People v. Smith, (Colo.App. No. 03CA1273, Feb. 10, 2005) (not published pursuant to C.A.R. 35(f) (Smith I). The supreme court denied certiorari on June 21, 2005.
Defendant subsequently filed a Crim. P. 35(c) motion for postconviction relief asserting sixty-one separate claims, which the trial court denied after a hearing. This appeal followed.
Defendant contends the trial court erred in denying his motion because the court’s findings of fact and conclusions of law are either incomplete or are not supported by the record. We discern no reversible error.

People v. Smith, No. 10CA0098 (Colo.App. July 5, 2012). The Colorado Supreme Court (CSC) denied Applicant’s petition for certiorari review of the Rule 35 motion on October 7, 2013. See Smith v. People, No. 2012SC618 (Colo. Oct. 7, 2013).

II. FEDERAL COURT PROCEEDINGS

Applicant asserts twelve claims in the Application. Claim Eleven has three subparts. The Court conducted a preliminary review of the twelve claims and dismissed Claims Two and Four, and Claim Eleven, as it pertains to forensic evaluations. ECF No. 31 at 14. The Court deferred ruling on the Martinez v. Ryan, --- U.S.---, 132 S.Ct. 1309 (2012) issue in Claim Twelve, until the Court had the opportunity to review the state court record. The remaining claims are as follows.

(1) State district court violated due process rights by refusing to suppress an unduly suggestive photo-identification procedure;
(3) State district court violated due process rights by failing to remedy the admission of unfounded, inflammatory hearsay evidence designed to frame the government’s theory of the case;
(5) State district court violated due process rights by denying him an opportunity to suppress collateral use by the government of prior unconstitutional convictions;
(6) State district court violated due process rights by failing to conduct a Weidemer analysis regarding the validity of prior convictions, burdening his right to testify;
(7) Evidence is insufficient to sustain a guilty verdict for burglary, felony murder, and violating a restraining order;
(8) Sentence for the offense of attempted felony murder in Count Four should be vacated because there was only one killing;
(9) Ineffective assistance of appellate counsel for failure to amend opening brief when U.S. Supreme Court issued decision in Crawford;
(10) Crawford due process issue;
(11) Ineffective assistance of trial counsel for failure to:
i) Investigate and present evidence of wife’s drug overdose;
ii) Object to the prosecution eliciting expert opinion from domestic violence expert without tendering her as expert witness; and
iii) Recognize a nonwaivable conflict of interest; and
(12) Ineffective assistance of postconviction counsel for failure to present the result of a mental health examination during the postconviction process and trial counsel’s failure to present these results to the courts or to petitioner implicating Martinez.

III. LEGAL STANDARDS

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the Court must answer under § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Id. at 412. Furthermore,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (citation omitted). If there is no clearly established federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See Id. at 1018.

If a clearly established rule of federal law is implicated, the Court must determine whether the state court’s decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

A state-court decision is contrary to clearly established federal law if: (a) “the state court applies a rule that contradicts the governing law set forth in Supreme Court cases”; or (b) “the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent.” Maynard [v. Boone, 468 F.3d 665, 669 (10th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405 [ ]. “The word ‘contrary’ is commonly understood to mean ‘diametrically different, ’ ‘opposite in character or nature, ’ or ‘mutually opposed.’ ” Williams, 529 U.S. at 405 [ ] (citation omitted).
A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407-08.

House, 527 F.3d at 1018.

The Court’s inquiry pursuant to the “unreasonable application” clause is an objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable.” Id. at 411. “[A] decision is ‘objectively unreasonable’ when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law.” Maynard, 468 F.3d at 671. Furthermore,

[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations. [I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court.

Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). In conducting this analysis, the Court “must determine what arguments or theories supported or . . . could have supported[ ] the state court’s decision” and then “ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. In addition, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011).

Under this standard, “only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also Richter, 562 U.S. at 102 (stating that “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable”).

As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 562 U.S. at 103.

The Court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court m ust presume that the state court’s factual determinations are correct and Applicant bears the burden of rebutting the presumption by clear and convincing evidence. “The standard is demanding but not insatiable . . . [because] ‘[d]eference does not by definition preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

Finally, the Court’s analysis is not complete “[e]ven if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). “Unless the error is a structural defect in the trial that defies harmless-error analysis, [the Court] must apply the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .” Id.; see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless error analysis under Brecht anytime it finds constitutional error in a state court proceeding regardless of whether the state court found error or conducted harmless error review).

Under Brecht, a constitutional error does not warrant habeas relief unless the Court concludes it “had substantial and injurious effect” on the jury’s verdict. Brecht, 507 U.S. at 637. “[A] ‘substantial and injurious effect’ exists when the court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” Bland, 459 F.3d at 1009 (citing O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). “Grave doubt” exists when “the matter is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435. The Court makes this harmless error determination based upon a review of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000). “In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA.” Davis v. Ayala, 576 U.S. __, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).

Furthermore, a claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Richter, 562 U.S. at 98. In particular, “determining whether a state court’s decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court’s reasoning.” Id. (collecting cases). Thus, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 99. “Where there has been one reasoned state judgment rejecting a federal claim, ” federal habeas courts should presume that “later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion fairly appear[s] to rest primarily upon federal law.” Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (citation and internal quotation marks omitted) (supported in Hittson v. Chatman, __ U.S. __, 135 S.Ct. 2126, 2127 (June 15, 2015) (Ginsburg, J., concurring in denial of certiorari review).

Even “[w]here a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. In other words, the Court “owe[s] deference to the state court’s result, even if its reasoning is not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court “must uphold the state court’s summary decision unless [the Court’s] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.” Id. at 1178. “[T]his ‘independent review’ should be distinguished from a full de novo review of the petitioner’s claims.” Id.

If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).

IV. DISCUSSION

Prior to discussing the merits of each claim. The Court will address the Martinez issue in Claim Twelve.

A. Claim Twelve/Martinez

In the Order for Answer, ECF No. 31, in this case, the Court stated as follows.

In Martinez, the Supreme Court held:

[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Id. at 1320. The petitioner must also show that the underlying ineffective assistance of counsel claim is “substantial”- i.e., has “some merit.” Id. at 1318. The holding in Martinez recognizes an exception to Coleman v. Thompson, 501 U.S. 722, 753-55 (1991). In Coleman, the Supreme Court’s stated that being there is no constitutional right to counsel in a state collateral proceeding, an attorney’s errors in the proceeding do not establish cause for a federal habeas petitioner’s procedural default. See Martinez, 132 S.Ct. at 1315. Martinez applies only when “the State [bars] the defendant from raising the claims on direct appeal, ” so that postconviction proceedings are an applicant’s first opportunity to present an ineffective assistance of trial counsel claim. Martinez 132 S.Ct. at 1320; see also Trevino v. Thaler, __ U.S.__, 133 S.Ct. 1911, 1915 (2013) (extending Martinez to circumstances in which state law does not require claims of ineffective assistance of trial counsel to be brought in collateral proceedings, but “make[s] it virtually impossible for an ineffective assistance claim to be presented on direct review” (quotation omitted)).
The Colorado Supreme Court “has expressed a preference for having ineffective assistance of counsel claims brought in Crim. P. 35(c) proceedings.” People v. Thomas, 867 P.2d 880, 886 (Colo. 1994) (internal citations omitted); Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003) (“In light of the considerations potentially involved in determining ineffective assistance, defendants have regularly been discouraged from attempting to litigate their counsels’ effectiveness on direct appeal.”)). “Review of a claim of ineffective assistance of trial counsel that is raised on direct appeal is limited to the existing record.” Downey v. People, 25 P.3d 1200, 1202 n.3 (Colo. 2001) (citing People v. Blehm, 983 P.2d 779, 792-93 (Colo. 1999); see also People v. Apodaca, 998 P.2d 25, 29 (Colo. App.1999) (citing Thomas); People v. Price, 240 P.3d 557, 565 (Colo.App. 2010) (“Only ‘in rare instances’ are ineffective assistance of counsel claims presented so that they ‘need no further [factual] development prior to review on direct appeal.’ ”) (quoting People v. Kelling, 151 P.3d 650, 655 (Colo.App. 2006)).
The Court is reluctant to determine at this time, without the benefit of the state court record of Applicant’s criminal proceeding, whether the procedurally defaulted ineffective assistance issue raised in Claim Twelve is substantial. The Court will defer ruling on whether Applicant has demonstrated cause for his procedural default under Martinez v. Ryan pending the Court’s receipt of the state court record.

Mar. 3, 2015 Order for Answer, ECF No. 31 at 12-14.

Applicant asserts in the Application and in his Reply to the Pre-Answer Response, that Claim Twelve is subject to a waiver of procedural default pursuant to Martinez because the postconviction counsel failed to raise an ineffective assistance of trial counsel claim regarding trial counsel’s failure to present to the trial court or to Applicant, either prior to or during the trial, the results of Applicant’s mental health examination, which was performed at the request of Applicant’s trial counsel. ECF No. 1 at 32; ECF No. 16 at 9.

In the Pre-Answer Response, ECF No. 11, Respondents assert that Claim Twelve is procedurally defaulted because the claim was not raised in any state court and now any attempt to litigate this claim is procedurally barred under Colorado state law pursuant to Colo. R. Crim. P. 35(c)(VII), but they do not address whether the claim is substantial or has merit. In the Answer, Respondents argue that this claim should be dismissed as unexhausted because Applicant failed to raise the claim in any state postconviction proceeding and Colorado law allows collateral review of allegations of ineffective assistance of postconviction counsel. ECF No. 37 at 62. In the alternative, Respondents argue this claim lacks merit because Applicant stated on the record that he did not suffer from mental health issues and the mental health examination Applicant relies on is not part of the state court record. Id. at 63-64.

In his Traverse, Applicant asserts that he was not competent at trial. ECF No. 47 at 29. He further contends, even though his postconviction counsel found a psychological evaluation that was ordered by the trial court and showed Applicant was incompetent to stand trial, postconviction counsel refused to raise the mental health issue in the postconviction proceeding. Id. Applicant contends that his trial should have been delayed until he was competent and proceeding with the trial violated his due process rights. Id.

Applicant’s assertions in support of Claim Twelve are highly speculative. He bases his arguments on a psychological evaluation that he claims he is only “vaguely aware” of; and he further contends that the evaluation should be available because it was ordered by the court or obtained alternatively from either trial or postconviction counsel. ECF No, 47 at 29.

The Court has reviewed the State Court Record in Criminal Case No. 02CR3477. CD Court (Flat) File & File Folder Transcripts, ECF No. 38. In reviewing the transcript of a conflict hearing held on October 10, 2002, Applicant stated the following regarding his mental health at that time.

TRANSPORT OFFICER: Mr. Smith has had some problems at the jail with his mental health. And he -- threatened suicide, so he was being held -- I don’t know when the letter was written, but he may have been in that state of mind when he did it.
THE COURT: Are you concerned about his competency?
TRANSPORT OFFICER: Well, our mental health evaluator talked to him and -- put him back in the normal population now, so I believe he is okay.
THE COURT: Okay. Officer, what is your last name?
TRANSPORT OFFICER: Porcelli, P-o-r-c-e-l-l-i.
(Pause. Proceedings concluded at the bench.)
THE DEFENDANT: Your Honor, can I say something?
THE COURT: Absolutely. That is why we were here.
THE DEFENDANT: The deputy was saying something about me being under mental health care. I am not under mental health care for one. We had a misunderstanding last night about I filled out a paper to -- what is it -- to -- it was for the inmate’s classification.
THE COURT: Yes.
THE DEFENDANT: For some reason they sent me a nurse instead of the inmate’s certification people. And the deputies asked me a question. I misunderstood the question. They asked me whether I was trying to hurt myself, and I told them yes, but I misunderstood what they were asking me, so that was the problem that happened last night, but we got that all straightened out.
THE COURT: Sounds like it was a classification issue. And maybe they did misunderstand your answer.
THE DEFENDANT: Yes, we got it all straight this morning.
THE COURT: So you don’t feel you are having any mental health problems?
THE DEFENDANT: No, I am not having any mental problems. I have not had any mental health problems at all. This was a misunderstanding.
THE COURT: Do you understand what we are talking about here today?
THE DEFENDANT: Yes, I do.

Case No. 02CR3477, Oct. 10, 2002 Conflict Hr’g Tr. at 4-6.

Applicant also testified at his Rule 35(c) hearing that he had reviewed his motion and trial transcripts, “and all that type stuff, ” twenty to thirty times and had been researching his case during the seven years he had been incarcerated after his trial. Case No. 02CR3477, Nov. 23, 2009 Rule 35(c) Hr’g at 10-11. Applicant further testified that he had “motions -- everything that has to do with [his] case . . . [e]verything.” Id. at 12.

Applicant originally stated in the Application and his Reply to the Pre-Answer that trial counsel ordered the evaluation, and neither he nor the court were aware of the results, ECF No. 1 at 32; but in his Traverse he contends the trial court ordered the evaluation, ECF No. 47 at 29.

Based on Applicant’s acclaimed thorough review of everything related to his criminal trial, he should be able to identify with some accuracy where in the state court record such a court directive for an evaluation would be found. But, he has not done so. Upon review of the Court File and all transcripts of the proceedings in Applicant’s state criminal case, the Court finds nothing regarding mental health issues other than the October 10, 2002 conflict hearing, where Applicant stated clearly that he did not have any mental health problems. There is no directive on the record by the trial court for a mental evaluation or any reason identified by the court or trial counsel during the pretrial or the trial that a mental evaluation was necessary.

Based on the above findings, Applicant’s claim lacks merit and does not meet the substantial requirement set forth in Martinez. Without such a finding, the Court need not determine whether the postconviction review proceeding was sufficient or review the merits of Claim Twelve. Martinez, 132 S.Ct. at 1318. Claim Twelve is procedurally defaulted and, therefore, barred from federal habeas review.

B. Claim One/Suggestive Photo-Identification Admitted

In Claim One, Applicant asserts that the photo identification procedure used by the police was suggestive. ECF No. 1 at 7. Applicant further asserts that the trial court erred by refusing to suppress the identifications in violation of his due process rights. Id.

Specifically, Applicant contends that Mr. Roberto Gutierrez and Ms. Esther Sanchez identified Applicant as the suspect within a few hours of the shooting, while they were in the same room at the hospital and were only shown faces of a six-person photo array. Id. Applicant further contends that before Mr. Gutierrez viewed the array he described the suspect as a black male who had two braids and he acknowledged that during the shooting he heard Ms. Sanchez refer to the suspect as “Uncle Marlon.” Id. Applicant concludes Mr. Gutierrez had a “preconception” of the suspect’s age because Ms. Sanchez, who was seventeen, referred to Applicant as an uncle, making the suspect a generation older than she is; and as a result the photo array was reduced to only three possible individuals (a suggestive lineup as a matter of law) because the other three looked too young to be Ms. Sanchez’s uncle. Id. at 8.

Applicant further contends that Ms. Sanchez selected the same photo of Applicant in the photo array, as Mr. Gutierrez, only moments after Mr. Gutierrez had made his selection. Id. at 7. Applicant also contends that Mr. Gutierrez and Ms. Sanchez discussed their selections in violation of the police officer’s directive not to do so. Id.

Finally, with respect to Tabitha White, another person who identified Applicant in the photo array, Applicant contends that she was asked to view the same photo array as Mr. Gutierrez and Ms. Sanchez, even though she had not given a previous statement indicating any recollection of the suspect’s physical appearance. Id. Applicant further contends that before Ms. White viewed the photo array and identified Applicant she was coached by family members and was then able to identify Applicant in the array. Id. at 8.

Regarding Applicant’s suggestive photo array claim, the CCA found as follows.

I. Suggestive Identification
While in the hospital, two victims were asked to identify their assailant from a photographic lineup. Both picked defendant. Defendant now argues that the identification procedure was unduly suggestive. We disagree.
In determining whether photo identification evidence was properly admitted, we employ a two-part analysis. The defendant first must show that the photo array was impermissibly suggestive. If the defendant meets this burden, the prosecution must show that the witness’s identification was nevertheless reliable under the totality of the circumstances. Bernal v. People, 44 P.3d 184, 191 (Colo. 2002).
In evaluating whether a pretrial photo identification procedure is impermissibly suggestive, several factors are relevant, including the number of people depicted in the photo array, the manner of its presentation, and the details of the photographs themselves. Bernal, supra. These factors are related: the fewer the photographs used in a particular array, the closer the photographs must be scrutinized for suggestive irregularities. Bernal, supra.
Here, the witnesses were shown a photo array that included six pictures. At trial, defendant argued that the array was impermissibly suggestive because he was the “only person with long straight hair” and because only one other person had the same skin tone. The trial court rejected this argument, finding that the six photographs depicted individuals of similar appearance. The court also found that the photos contained similar backgrounds and presented no stark contrasts. Our review of the photo array confirms the trial court’s findings.
Defendant now argues that the array is suggestive because of the age of the individuals depicted. He notes that the victims had heard a seventeen year old witness refer to the assailant as “Uncle Marlon.” He notes that the term “uncle” suggests that the assailant was a generation older than that witness. And he argues that, because only three of the individuals appear old enough to be the witness’s uncle, the lineup unduly suggested that he was the assailant.
We are not persuaded by this argument. To the extent that the photographs suggest different ages, defendant appears to be one of the younger men. Therefore, the lineup could not be unduly suggestive in the way that defendant contends.
Because we affirm the trial court’s determination that the lineup was not unduly suggestive, we need not inquire whether the identifications were nevertheless reliable under the totality of circumstances.

People v. Smith, 03CA1273, 2-4 (Colo.App. Feb. 10, 2005). Applicant raised the sam e issues in his opening brief on direct appeal, see Pre-Answer Resp., Ex. B (Opening Brief), ECF No. 11-2 at 11-14, as he has stated in support of Claim One in this action. The CCA addressed only with any specificity the age issue and referred to only two witnesses who participated in a photo identification. The CCA, however, affirmed overall the trial court’s determination that the lineup was not unduly suggestive and found no need, therefore, to inquire whether the identifications were nevertheless reliable under the totality of the circumstances.

Pursuant to the pretrial court hearing, held on January 2 and 6, 2003, the trial court entered an order on January 9, 2003, that addressed the ...


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