United States District Court, D. Colorado
ORDER ADOPTING RECOMMENDATION TO DENY AMENDED
APPLICATION FOR WRIT OF HABEAS CORPUS
S. Krieger, Chief Judge
MATTER comes before the Court pursuant to the Applicant's
Objection (# 168) to the Magistrates Judge's August 8,
2016 Recommendation (# 167) that the Applicant's Amended
Application for Writ of Habeas Corpus brought Pursuant to 28
U.S.C. § 2254 (# 62) be denied.
Court exercises jurisdiction over this matter pursuant to 28
U.S.C. § 2254 and 28 U.S.C. § 1331.
in the morning of October 16, 1998, Linda Richards was
murdered. Her killer left her body in her minivan and set the
minivan on fire. Passersby saw the fire and contacted the
police. After an investigation, the police arrested the
Applicant, Kent Eric LeBere, and he was charged with three
alternative counts of first-degree murder and one count of
second-degree arson in El Paso County, Colorado District
Court case number 98CR4342.
August 1999, Mr. LeBere's case was tried to a jury. As
part of the evidence presented, Ronnie Archuleta testified
that while he and Mr. LeBere were incarcerated together, Mr.
LeBere confessed to him. According to Mr. Archuleta, Mr.
LeBere said that he met Ms. Richards at a bar, and he became
intoxicated. He asked Ms. Richards for a ride home, but
instead of going home, they drove to Cheyenne Canyon where he
“fucked the bitch” without her consent and
strangled her because she could identify him by the phoenix
tattoo on his arm. Mr. Archuleta also testified that Mr.
LeBere confessed to driving to the carwash and setting fire
to the minivan to destroy any bodily fluids he may have left
in the minivan.
jury convicted Mr. LeBere of second-degree murder, a
lesser-included offense of first-degree murder, and
second-degree arson. Mr. LeBere was sentenced to
incarceration of 48 years for the murder conviction and 12
years for the arson conviction, to be served consecutively.
LeBere appealed his conviction to the Colorado Court of
Appeals. While the appeal was pending, Mr. Archuleta recanted
his testimony. He said that Mr. LeBere never confessed to
him, but instead that the lead detective in Mr. LeBere's
case, Detective J.D. Walker, gave him information about the
case for the purpose of fabricating his testimony about the
LeBere also challenged his conviction based on Mr.
Archuleta's recantation in a motion for new trial. The
Motion was denied by the trial court and the denial was
affirmed on direct appeal. Then Mr. LeBere moved for
post-conviction relief under Colorado Rule of Criminal
Procedure 35(b). This request was denied by the trial court,
and the denial was affirmed on direct appeal.
23, 2003, Mr. LeBere filed a pro se application
for a writ of habeas corpus under 28 U.S.C. § 2254. His
case was stayed and later administratively closed while his
state post-conviction motion was pending, but it was reopened
on July 13, 2009. Mr. LeBere filed an amended application for
writ of habeas corpus, alleging that the State of Colorado
(“Colorado”) suppressed impeachment evidence that
Detective Walker conspired with Mr. Archuleta to fabricate a
false confession (“impeachment evidence”), and
that such action violated Brady v. Maryland, 373
U.S. 83 (1963) (“Brady claim”). He also
alleged that Colorado knowingly elicited Mr. Archuleta's
perjured testimony during trial in violation of Napue v.
Illinois, 360 U.S. 264 (1959) (“Napue
claim”). Finally, he claimed that he was deprived of
his right to counsel. This Court denied Mr. LeBere's
Brady and Napue claims as procedurally
barred and denied the right to counsel claim on its merits.
Mr. Le Bere appealed. The Tenth Circuit found that the
Brady and Napue claims were not
procedurally barred and remanded for them to be determined on
Court referred this matter to the Magistrate Judge for a
recommendation. On August 8, 2016, the Magistrate Judge
issued the instant Recommendation (# 167) that the Amended
Application be denied. Mr. LeBere filed a timely Objection (#
168) to the Recommendation. No response was filed to the
Standard of Review
magistrate judge issues a recommendation, the parties may
file specific, written objections within fourteen days after
being served with a copy of the recommendation. 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 72(b). The district court
reviews the portions of the recommendation to which timely
and specific objections are made de novo.
LeBere brought his Amended Application under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA, the standard of review
applicable to a particular claim depends upon how that claim
was resolved by Colorado courts. Milton v. Miller,
744 F.3d 660, 668 (10th Cir. 2014). If a Colorado court
adjudicated a claim on the merits, the Colorado court's
decision is entitled to deference and can only be overturned
under limited circumstances. See 28 U.S.C. §
2254(b) & Williams v. Taylor, 529 U.S. 420, 429
(2000). If the claim was not adjudicated on its merits and is
not procedurally barred, a federal court reviews it de
novo. Gipson v. Jordan, 376 F.3d 1193, 1196
(10th Cir. 2004). Mr. LeBere and the Respondents agree that
Mr. LeBere's claims should be reviewed de
Mr. LeBere's Napue Claim
eliciting or failing to correct perjured testimony during
trial violates due process. See Napue v. Ill., 360
U.S. 264, 269 (1959). To prevail on his Napue claim,
Mr. LeBere must prove: “(1) a government witness
committed perjury, (2) the prosecution knew the testimony to
be false, and (3) the testimony was material.” U.S.
v. Garcia, 793 F.3d 1194, 1207 (10th Cir. 2015). As to
the second element, a law enforcement officer's knowledge
that a witness has committed perjury is not imputed to
prosecutors. Garcia, 793 F.3d at 1207-08 (citing
Smith v. Sec'y of N.M. Dep't of Corrs., 50
F.3d 801 (10th Cir. 1995) (holding that a prosecutor's
lack of actual knowledge of a witness' perjury precluded
Smith's Napue claim)).
LeBere cannot prove the second element of his Napue
claim. In footnote 5 of his Memorandum in Support of
Petitioner's Request to Grant Amended Application for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254,
he concedes that he does not have sufficient evidence to
prove that the prosecutors in his case actually knew that Mr.
Archuleta committed perjury during trial. Therefore, the
Court denies Mr. LeBere's Napue claim.
Mr. LeBere's Brady Claim
of evidence favorable to an accused that is material to guilt
or to punishment violates the accused's right to due
process Brady v. Md., 373 U.S. 83, 87 (1963).
Evidence favorable to an accused includes exculpatory and
impeachment evidence. U.S. v. Bagley, 473 U.S. 667,
676 (1985). With a Brady claim, a law enforcement
officer's knowledge of the existence of exculpatory or
impeachment evidence is imputed to the prosecution.
Smith, 50 F.3d at 831. Therefore, to establish a
Brady claim, Mr. LeBere must prove: (1) The evidence
at issue was favorable to him, either because it is
exculpatory, or because it is impeaching; (2) that evidence
was suppressed by Colorado, either willfully or
inadvertently; and (3) prejudice resulted. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999). Prejudice
satisfying the third element exists when the suppressed
evidence is material. Douglas v. Workman, 560 F.3d
1156, 1173 (10th Cir. 2009) (quoting Banks v.
Dretke, 540 U.S. 668, 691 (2004)). Generally, evidence
is material if there is a reasonable probability that, had
the evidence been disclosed to the defense, the trial result
would have been different. A reasonable probability of a
different trial result exists when the government's
evidentiary suppression undermines confidence in the outcome
of the trial. Kyles v. Whitley, 514 U.S. 419, 433
purposes of analysis, the Court will assume that Colorado
suppressed the impeachment evidence and that had such
evidence not been suppressed it would have been used to
impeach Mr. Archuleta's testimony. By its nature,
impeachment evidence is not substantive evidence, but instead
is material only to undermine the credibility of a
witness' statements. U.S. v. Watson, 766 F.3d
1219, 1244 (10th Cir. 2014). Based on these assumptions, the
Court asks two questions: 1) was the verdict dependent upon
Mr. Archuleta's testimony, and 2) was the impeachment
evidence necessary to raise doubt as to the veracity of Mr.
Was the verdict dependent upon Mr. Archuleta's
carefully reviewed the record, the Court is satisfied that
the prosecution presented substantial, persuasive evidence,
independent of Mr. Archuleta's testimony, from which a
jury could have found beyond a reasonable doubt that Mr.
LeBere was guilty of charges of second degree murder and
arson. Its evidence included the following.
Holzer, who worked at Crazy Mike's Bar on the night of
the incident saw Ms. Richards enter the bar at about 8:00
p.m. She was alone until Mr. LeBere approached her, and the
two started talking. By 11:30 p.m., when Mr. Holzer left, she
and Mr. LeBere were sitting close together.
Cobb who also worked at the bar testified that Mr. LeBere was
at the bar before Ms. Richards arrived. Mr. LeBere approached
Ms. Richards and invited her to play pool. Ms. Cobb testified
that Ms. Richards and Mr. LeBere spoke with one another and
drank together for the next several hours. As the night
progressed, their interactions became more intimate. They sat
close together, and Ms. Cobb made an Amaretto Sour drink for
them, which they shared with two straws. Ms. Cobb asked Mr.
LeBere if he was “going to get lucky” with Ms.
Richards, and he responded that he and Ms. Richards talked
about having a “one night stand” with each other
but that Ms. Richards was engaged and did not believe in
having one night stands. Ms. Cobb testified that as the night
progressed, Mr. LeBere became increasingly intoxicated. She
talked to him about it, and he told her not to worry because
he was going to walk home. At about 12:30 a.m., as he was
leaving, he told her that Ms. Richards agreed to give him a
ride home, and Ms. Cobb saw Ms. Richards and Mr. LeBere leave
the bar together.
to Ms. Cobb's testimony, the police called her the next
day and showed her a picture of Ms. Richards. They told her
Ms. Richards had been killed and asked if Ms. Richards had
been with anyone at Crazy Mike's Bar. She described Mr.
LeBere to them, drew a picture of him, and helped a police
artist draw another sketch of him. The drawings portrayed Mr.
LeBere as having dark hair that was parted in the middle and
came to the middle of his face. ...